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Employee can go fishing while on sick leave
Question
I recently visited my doctor suffering from work related stress. My doctor told me that I needed a holiday. He gave me a medical certificate putting me off work for 5 days. I took my doctor's advice. I gave the medical certificate to my employer, and took 5 days sick leave. To reduce my stress, I went trout fishing at Lake Taupo.
When I returned to work, I offered my employer a trout. He asked me when I had caught it, and I told him I had gone fishing at Lake Taupo the previous week. I explained that I found fishing therapeutic in that it reduced my stress. My employer accused me of abusing my sick leave and dismissed me. Are employees on sick leave required to stay at home in bed?
Answer
In a similar case decided in 1990, the Labour Court held that an employee who is on sick leave is not required to stay at home in bed. If going fishing alleviates an employee's sickness, or assists with his or her recovery, then the employee may go fishing.
In that case, the NZ Refining Company employed Mr Browne as a refinery operator at its refinery in Whangarei. Mr Browne was a chronic hay fever sufferer. He had suffered from this complaint since childhood, and had noted this on his employment application.
In February 1990, Mr Browne got an attack of hay fever. To alleviate the symptoms, he called in sick and accompanied one of the Refinery supervisors, Mr Crispin, on a fishing trip to the Hen and Chicken Islands. Mr Browne claimed that had had always found that the sea air gave him considerable relief from hay fever and cleared his nose. He attributed this to the absence of pollen off shore, and to the relatively high humidity of the salt air. Medical evidence supported this.
The following day, Mr Browne again called in sick and went fishing with Mr Crispin. They launched Mr Crispin's boat from the company's boat ramp.
When they returned to shore, the company's Employee Relations Adviser, Mr Stephenson, spoke with Mr Browne and demanded to know why he had gone fishing when he was suppose to have been sick. Mr Browne explained that he had hay fever and that the salt air off shore alleviated his symptoms. Mr Stephenson directed Mr Browne to attend a disciplinary meeting the following morning.
Before the meeting, Mr Stephenson contacted the company doctor and asked whether or not hay fever could be relieved by sea breezes and, whether a suffer would be made worse by working in an air-conditioned and air filtered room. The doctor said that he did not know, but that air conditioning would prevent a sufferer from being reinfected by pollen dust.
The following morning, Mr Browne met with management as directed. He again explained that the salt air off shore alleviated his hay fever.
During the meeting, Mr Browne's Union delegate contacted Mr Crispin who confirmed that Mr Browne had been suffering from hay fever, and that the salt air had in fact alleviated his symptoms. The Union delegate returned to the meeting and told management what Mr Crispin had said. However, management did not bother contacting Mr Crispin to verify this.
At the end of the meeting, Mr Browne was dismissed for taking sick leave that he was not entitled to.
Mr Browne's Union brought a personal grievance on his behalf against the company, claiming unjustified dismissal. The Labour Court upheld the Union's claim and ordered that Mr Browne be reinstated to his former position and that he be paid lost wages.
In deciding the case, the Court noted that there was no requirement that sick leave had to be spent at home.
It also note that the company had made no attempt to verify Mr Crispin's account before it decided to dismiss Mr Browne.
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This case should not be seen as a general invitation for fishing enthusiasts to take sick leave and go fishing. While employees who are on sick leave are not necessarily required to stay at home, their activities need to be beneficial in alleviating or curing their illness. In Mr Browne's case, fishing was beneficial as the salt air alleviated his hay fever. He also had medical evidence that supported his claim.
Fishing may well reduce stress and be a legitimate use of sick leave. However, an employee who wishes to go fishing while on sick leave should obtain a letter from his or her doctor setting out the benefits that fishing (or any other recreational activity for that matter) has in treating his or her illness. This letter can be given to the employer if there is a dispute about the employee's use of sick leave.
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