The Employment Court recently held that the dismissal by Telecom of an employee who produced a suspicious medical certificate after he failed to return to work from a Christmas holiday in Fiji was unjustified.
The Telecom case is a useful reminder to employers to follow a careful procedure from the very beginning of any disciplinary issue or dispute that arises with an employee. Employers should not make enquiries of third parties before raising the issue directly with the employee, and any disciplinary process must only begin once the employee has been made aware of the allegation or issue.
Narayan v Telecom (June 2014)
Mr Narayan worked on Telecom’s Broadband Help Desk. In November 2011, he applied for leave to travel to Fiji. Mr Narayan’s leave application proposed that he would return to work on 3 January 2012. Telecom only approved Mr Narayan’s leave for three weeks, requiring him to return to work on 27 December 2011. However, Mr Narayan fell ill at the end of his holiday in Fiji, and did not return to work until 3 January 2012.
Some time after Telecom’s request, Mr Narayan produced a medical certificate from a hospital in Fiji. Suspicion was raised amongst his managers about the genuineness of the medical certificate, because it was half typed, half handwritten, and there was no hospital letterhead printed or endorsed on it. Before raising its suspicions with Mr Narayan, Telecom carried out enquiries of hospitals in Fiji, both as to whether medical certificates in Fiji would customarily be on a letterhead or simply in handwritten form, and in relation to the name of the doctor whom he consulted. A lengthy disciplinary investigation was subsequently launched, and Mr Narayan was subsequently dismissed for serious misconduct.
The Court found that despite the disciplinary process itself following a fair procedure, the decision to dismiss Mr Narayan was not justified. Telecom adopted an inappropriately suspicious stance on the matter from the outset, and it should not have carried out enquires of hospitals in Fiji without informing Mr Narayan. Prior to Mr Narayan’s dismissal, Telecom had evidence (by way of confirmation from the hospital) that the doctor named on the certificate said he had seen Mr Narayan on the day in question and issued the medical certificate. Although there were some discrepancies within the hospital’s records, the Court held that there was no real basis upon which Telecom could have concluded that the certificate was a fake and that Mr Narayan was deceiving Telecom.
The Court held there was no doubt that Telecom had grounds for its initial suspicion, based on “the circumstances surrounding Mr Narayan’s return to work in the context of his earlier request for leave, the information received in a spasmodic fashion from the CWM Hospital employee, Mr Narayan’s belligerence and his refusal to provide information in an open way.” However, the Court found that Telecom dealt with the matter inappropriately by contacting hospitals in Fiji instead of carrying out a “logical process of simply speaking to Mr Narayan about the certificate.” Mr Narayan had previously been a valuable employee of Telecom and there was no basis upon which Telecom could assume that he was not being honest.
Update on medical certificate standards
Further to our update of June last year, the New Zealand Medical Council has released a revised statement on medical certification, which outlines new standards that a doctor must follow when completing a medical certificate (Statement). The purpose of the Statement is to ensure that medical certificates are clearer and more useful than they have been in the past. The Statement includes the following standards which are particularly relevant for employers:
- A doctor is not required to disclose a diagnosis in an employee’s medical certificate unless it has direct implications for an employer. Where a diagnosis relates to a workplace injury or illness, or where the illness or injury may have an impact on co-workers and the public, and the medical certificate is to be provided to an employer, a doctor should seek an employee’s permission to include on the certificate both a diagnosis and any workplace factors which may have contributed.
- If an employee is fit for some activities, this should be recorded in the certificate. Any duties that should not be attempted by an employee should also be clearly stated. Any comment on fitness for work should refer specifically to the doctor’s clinical opinion, outlining those activities that are safe for the employee to undertake and appropriate restrictions, or unsafe activities that the employee should not undertake. Doctors are therefore to focus their attention on those activities an employee can and cannot safely undertake, rather than on whether or not an employee is capable of working.
- An employer may seek clarification from an employee’s doctor about the employee’s health status. However, a doctor may only disclose an employee’s personal information with employee’s prior consent, and any additional comments should be limited to the doctor’s assessment of the patient’s capacity and timeframes.
- It may be useful for employers to ask doctors whether, in their clinical judgement, the doctor would consider that the employee is capable of a certain, specific activity. Employers could also consider providing an employee’s doctor with a list of alternate duties and a description of the workplace support available, to assist the doctor in answering questions about the employee’s capacity. However, the doctor may not be able to provide an employer with information unless the employee has consented to its release.
You can read the Statement here.