Waikato Business News July/August 2017

WAIKATO BUSINESS NEWS July/August 2017
13
Medical incapacity
- When to ‘cry halt’
A dismissal is, for most employees,
always going to be a traumatic event.
However, when the dismissal is for medical
incapacity it can be traumatic for both the
employee and the employer.
Dismissing someone
because they are no
longer medically fit to
work is akin, for most good
employers, to kicking someone
when they are down, particularly
given that medical
issues are usually outside the
employee’s control and, like
redundancy, amounts to a “no
fault” dismissal. For this reason,
many employers go to
considerable lengths to try and
keep someone’s position open
for as long as they possibly
can, before making the decision
that the business can no
longer withstand the disruption
and difficulties associated
with temporarily accommodating
a long-term absence.
Unhelpfully, the previous
test from the 1985 case of
Hoskin v Coastal Fish Supplies
Limited, as to when employment
could be terminated
for medical incapacity, was
vaguely worded as at “…the
point an employer could fairly
cry halt.” That point depends
on a range of factors such as
how key the employee is to
the organisation, the size of
the business and to what extent
the employer can continue
to provide temporary cover
and for how long. Subjectively
deciding that the point to
cry halt had been reached,
could very well be found by
the Court, retrospectively, to
have been “wrong.”
Unfortunately, there are
also employees who will
exploit the largesse of their
employer, particularly where
an employer has tried their
utmost to accommodate their
employee’s increasingly dictatorial
demands as to when,
where and how the employee
will return to work. Such was
the case of Lal v The Warehouse
Limited.
The judgment in this case
was issued by Judge Christina
Inglis in June 2017, shortly
before she assumed her appointment
as Chief Judge of
the Employment Court on
10 July 2017, following former
Chief Judge Colgan’s
retirement. It now sets out
more concrete criteria for an
employer to decide when the
“point to fairly cry halt” has
been reached.
In a nutshell, Ms Lal injured
her foot at work on 31
August 2012, and this progressively
led to other related
medical issues, which saw
her sometimes fit for work on
restricted duties, and other
times not fit for work at all.
By January 2014, The Warehouse
asked for a meeting to
discuss this ongoing incapacity
issue and try to get her back
to work. At the meeting which
resulted, it transpired that Ms
Lal would return to work, but
she no longer wanted to return
to the Newmarket store during
her rehabilitation as she had
“issues” with the manager.
Before her return to work
the manager at the Newmarket
store changed but she still did
not wish to work at this store,
despite the change in management.
In July 2014, Ms
Lal’s doctor issued her with a
medical certificate, which also
contained comments about
the need for The Warehouse
to allow her to change stores
based on non-medical issues,
of which his only knowledge
came from Ms Lal’s self-reported
desire to change stores.
The practise of doctors including
personal issues and
recommendations in relation
to the workplace in support
of their patient, is far from
uncommon, despite the fact it
breaches the Medical Council
of New Zealand recommendations
for issuing medical certificates.
Despite confirming that
she would return to work in
a meeting that occurred on 21
July 2014, this did not happen,
and on 3 September 2014, she
produced a medical certificate
from her doctor stating she
was medically unfit to work
for a further 42 days. At that
point, The Warehouse sent her
a letter informing her to that
if she did not return to work
by 30 September 2014, her
employment would be terminated.
Ms Lal did not return
to work by 30 September and
her employment was terminated,
leading her to raise a personal
grievance for unjustified
dismissal. Her claim was dismissed
by the Employment
Relations Authority, so she
challenged the decision in the
Employment Court.
This judgment (which,
like all Employment Court
judgments, can be accessed
at www.employmentcourt.
govt.nz.), dismissing Ms Lal’s
claims, stated a number of
very sensible principles when
dealing with medical incapacity
terminations. In particular,
at paragraph 48 it stated that
“…An employer cannot be
held to ransom by an incapacitated
employee, dictating
the terms on which they will
return to work and where. An
employee can however expect
that their concerns will
be genuinely considered and
appropriately responded to.
The employer's actions must
be within the range of what a
fair and reasonable employer
could do in the circumstances…”
In conclusion, any employer
struggling with an ongoing
medically-incapacitated employee,
would be well advised
to locate and read this judgment.
Many employers do try
Need a Photographic Expert?
You need SNAPSHOT!
From passport photos and business portraits
through to cameras and photo studio gear we can
provide your business with photographic solutions.
Doing the photography yourself? We offer lessons
for anything photographic - at our place or yours.
Visit our new mobile friendly website today to see
what we can do for you and your business ...
snapshot.co.nz
Order prints directly from your
smartphone and pick up in-store
We’re excited & honoured to be a Category Finalist
in the 2017 Top Shop Awards.
391 Victoria St,
Hamilton CBD.
ph 07 838 0031
J9788P
EMPLOYMENT LAW
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
to be as fair and reasonable as
possible when dealing with
medical incapacity. Unfortunately,
there are employees
who will see this consideration
as a weakness and exploit
every last drop of empathy
and goodwill an employer
has to offer.
Hamilton Monthly Property Report
SNAP SHOT OF WHAT HAS BEEN
HAPPENING IN THE MARKET
PLACE OVER THE PAST MONTH.
The median price across the region
rose $35,000 compared to June 2016.
Prices rose 23% in Waikato District.
Compared to May 2017 the median price fell
$18,000.
Sales volumes compared to May fell
16%, with sales rising 43% in Matamata-
Piako and 27% in South Waikato, but falling
across the rest of the region. Compared to
June 2016 sales across the region fell 21%.
The number of days to sell improved by
five days compared to May 2017, from 41
days in May to 36 days in June. The number
of days to sell eased by five days compared
to June 2016. Over the past 10 years the
average number of days to sell during June
for Waikato has been 51 days.
“First home buyers are more active in the
Hamilton market, despite more restrictive
lending requirements, although the number
of investors has declined due to yield concerns.
More broadly there are fewer first
home buyers active with ex-Auckland buyers
more active, particularly around holiday
centres, although these buyers appear to
be looking for permanent residences rather
than holiday homes.” REINZ Regional
Director, Philip Searle.
Obviously the statistics contained within
this article represent only a small fraction of
the data we have at our fingertips. For more
information relevant to your street or your
property, call and ask for one of our team at
EVES Realty.
P 07 834 9570 M 027 801 9962 F 07 854 3837
VISIT www.eves.co.nz
Hamilton City
By Greg Petrin
Rototuna branch manager
Local market facts
Sales May
2017
Sales May
2016
Under $200k* 0 6
$200 - $299k* 6 11
$300 - $399k* 36 74
$400 - $499k* 84 88
$500 - $599k* 53 63
$600 - $699k* 41 39
$700 - $999k* 22 28
$800 - $999k* 18 28
$1,000,000 -
$1,999,999*
8 3
$2m+* 1 1
Total number of sales* 269 341
Median sale price* $515,000 $485,000
Median days to sell* 32 29
*Statistical Information Derived From The Real Estate Institute Of New Zealand. Realty Services Ltd/Success Realty Ltd and any contractor/employee is merely passing over the
information. We cannot guarantee its accuracy and reliability as we have not checked, audited or reviewed the information and all intending purchasers are advised to conduct
their own due diligence investigation into the same. To the maximum extent permitted by law Realty Services Ltd/Success Realty Ltd and its contractors/employees do not accept
any responsibility to any person for the accuracy of the information herein.