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Dismissal for Misuse of Sick Leave Invalid

Published 01 Sep 2013

In Kensington v Air New Zealand Ltd [2013] NZERA Auckland 384 the Employment Relations Authority concluded that a flight attendant, Ms Kensington, was unjustifiably dismissed due to misuse of sick leave and untruthfulness during an investigation.

At an earlier hearing, the ERA made a ruling on the disclosure of the employee’s bank accounts and facebook pages for the 8 and 9 March 2013. The Authority held that such evidence was relevant as subsequently discovered information despite the general privacy expectations about such information and the employee’s attempts to argue that the evidence was prejudicial.

On 8 March 2013, Ms Kensington and a friend were at Takapuna beach when Ms Kensington’s sister rang. Her sister had recently given birth to her first child. As her sister needed support, Ms Kensington asked for leave. Air New Zealand decided that Ms Kensington was ineligible for domestic leave. The Union advised Ms Kensington that she was entitled. Ms Kensington duly took leave and told Air New Zealand to contact the Union if there were any issues.

Ms Kensington was called to a formal disciplinary meeting because it appeared to Air New Zealand Ltd that she had falsely declared that she needed to look after her sister and used this as a reason in an attempt to secure further leave.

Ms Kensington’s brother-in-law gave evidence that he had used all of his paternity leave at his work. In addition, the midwife gave written medical evidence to explain the sister’s health and the need for a support person during the time following the birth. The friend on the beach, the sister and Ms Kensington’s mother also gave evidence relating to Ms Kensington’s whereabouts and the situation.

A further investigation meeting was held by Air New Zealand where Ms Kensington was advised that she had not been truthful in her explanations as to the extent the sister was dependent on Ms Kensington. The investigation considered:
  1. Whether the sister was dependent upon Ms Kensington for care;
  2. The lack of contemporaneous medical information on the sister’s health; and
  3. The availability of others to help.
A third meeting was called for on 10 May 2013 for further comment but the employee did not attend and the employee was terminated by a letter sent to the employee later in that afternoon.

The Authority held that while there was a full and fair investigation, a fair and reasonable employer could not have concluded Ms Kensington was untruthful about her sister being sick and dependent upon her based on the evidence before it.

The Authority noted that Ms Kensington’s behaviour did not assist matters because there were times when her sister was allegedly sick and alone. The employer also sought to introduce matters such as a low ranking, below average PD scores and above average absenteeism when discussing disparity. However, the Authority held that this should have been disclosed because it was not raised before the decision to dismiss was made.

The decision shows that the employer should be careful when probing the veracity of an employee’s statements.  Further, it also shows that in some instances employers may request from employees, facebook and bank account details where these can be used to ascertain whereabouts, which will be a useful tool in the employer’s arsenal in the future.

As demonstrated discipline and dismissal procedures are a minefield where process far outweighs justification. Unfortunately disciplinary issues affect most businesses in the modern workplace at some point. If you find your business in similar circumstances ensure you follow the exact process and letters as provided in our How to Dismiss Staff software, or call our team here at Employers Assistance - 0800 15 8000