When is dismissal deemed discriminatory?
An employee who is taken off the roster because of health reasons may be feeling anxious about how long they’ll be off the job and whether they’ll even have one to return to. But no matter the circumstances, employers should always treat a sick or injured employee with dignity even when management has decided to terminate the employment relations.
New Zealand employment law does not require companies to keep a role open indefinitely for a worker who is deemed medically unfit to perform their role regardless of their tenure. However, employers do have the obligation to ensure the deliberation over the case is fair and the actions taken are reasonable, the Employment Court has ruled.
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Without such procedural fairness, employers could find themselves accused of discriminating against the worker on the basis of their disability. This happened to an Auckland dairy company when one of its maintenance workers suffered serious injuries after a bad fall.
When the worker returned after a period of rehabilitation, he was found unable to perform the same role he had prior to his injury. The company decided to let go of the worker but later faced an unjustified dismissal complaint for purportedly discriminating against the worker over his disability.
The Employment Court recommends employers examine pertinent and expert medical opinion on the likelihood and capacity of an employee to work again. Such information can help the business determine the kind of accommodations their worker will need, most importantly their recovery time. Employers have the obligation to give the worker reasonable time to recuperate.
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“Before making a decision on what to do, the employer needs to understand how long the employee is likely to be off work and whether they’ll be able to do their job again. To get this information, the employer should work in a positive and supportive way with their employee,” Employment New Zealand advises. “Employers should make sure that any investigation into understanding the medical situation for their employee is not viewed as a disciplinary investigation – the employee has not done anything wrong.”
The information presented here is by no means exhaustive, so employers are advised to consult legal experts when dealing with the possibility of a termination based on medical incapacity. If you’re eager to learn more about this topic, sign up for the HRD Employment Law Masterclass now.
