Under the Accident Rehabilitation and Compensation Insurance Act (ACRI Act), an employer is required to pay a worker for the first week of incapacity, if the worker’s injury is work related. However, an employer is not required to pay the worker, if the injury is not work related. This leaves the worker with no income for that week.

This raises the question can a worker claim sick pay (as opposed to wages under the ACRI Act) if he or she is off work because of a non-work related injury? In a recent case, the Employment Court held that a worker could.

Kelcold Ltd employed Robert Polgrain as a storeman/freezer hand at its cool store in Hastings.

On 25 February 1996, Mr Polgrain injured his back while playing cricket. His doctor put him off work for two days and sent him to see a physiotherapist. Unfortunately, the physiotherapist aggravated his injury even further, and he ended up being off work for four days.

Because Mr Polgrain’s injury was not work related, his employer was not required under the ACRI Act to pay him any wages. Mr Polgrain claimed sick pay, but his employer refused to pay him on the grounds that sick leave was for sicknesses, and not injuries.

Mr Polgrain complained to a Department of Labour Inspector who filed a claim against the employer in the Employment Court on his behalf, claiming four days sick pay.

In deciding the case, the Employment Court had to determine whether, for the purposes of section 30A of the Holidays Act 1981, a worker was "sick" when he or she was injured. The Employment Court held that the word "sick" included injuries.

The object [of the sick leave provisions in the Holidays Act] is to free the worker from the duty to work without the loss of pay for at least 5 days in each year if, through misfortune, the worker is unfit to work or needs to look after a spouse or closely related dependant. It was not the intention to draw a line between the misfortune of disease and the misfortune of injury Chief Judge Goddard said.

The Court ordered Kelcold to pay Mr Poulgrain $312.96, being four days sick pay.

This case is important to workers who take time off work because of injuries. If the injury is not work related and the worker has sick leave available, he or she is entitled to be paid sick leave. If the injury is work related, then the worker has a choice between claiming wages under the ARCI Act or, if the worker has sick leave available, claiming sick pay. In most cases, claiming sick pay is more attractive because full wages would be paid rather than 80% under the ACRI Act.