Bangs v Sue Johnstone t/a Grant Johnstone Nissan Suzuki

Staff who take excessive amounts of sick leave can be frustrating for employers. These situations are difficult and need to be handled carefully. Ms Johnstone has delivered a master class on how not to deal with an employee in this situation.

Mr Bangs and his family decided to come home to Rotorua because his wife had developed a medical condition and they needed family help to manage her situation and the illnesses that their three small children picked up. Unfortunately, his Mother, who was enlisted to provide the extra support, also developed a severe condition and was unable to help.

Bangs started working for Johnstone in September 2015 and took around 30 days sick leave before his employment ended 11 months later. There was no dispute that Bangs was a good worker, but Johnstone became blinded about the amount of sick leave he was taking.

Johnstone gave Bangs a first warning in February for having used 12 days sick leave , and a further warning in April after he had been off for a week sick. The warning letters were given to him without any opportunity to discuss the situation and were procedurally flawed because Johnstone did not fully or fairly put her concerns to Bangs and give him an opportunity to respond. In August, she told him that if he didn’t resign he would get a third and final warning that would end his employment without a reference.

After a heated discussion Bangs did as he was asked and resigned giving the required period of notice. He promptly raised a personal grievance. This provided a golden opportunity to seek urgent mediation to resolve the issue before the employment ended but Johnstone did not respond to the grievance until after the notice period had finished and Bangs employment ended.

There was no evidence that Bangs (or his family) were not genuinely ill, although Johnstone suggested that he was using the time to deliver firewood for his wife. During the notice period Bangs had a day off with a sick child and Johnstone turned up, unannounced at his home insisting on seeing the sick child. A few days later and another day with a sick child, Mrs Bangs gets a phone call at work quizzing her about her health, the children’s health and why she couldn’t look after the sick child that day.

The Authority concluded that the employment ended because Johnstone told Bangs to resign and therefore it was a dismissal. Johnstone’s lawyer conceded that, if it was found that she had ended the employment, she had not complied with any of the procedural or good faith requirements of the Employment Relations Act.

Unfortunately the case doesn’t articulate what Johnstone should have done in the circumstances. The first point is the need to discuss the situation with the employee, openly and in good faith, exploring the options and impact of the absences.

There is solid case law, that where the illnesses are genuine, the employer does not have the option to terminate the employment for a high level of absence. The only basis on which this argument would succeed is to demonstrate that the business cannot function properly without the position being filled and that is a very high threshold.

This is quite a different situation from employees misusing or abusing their sick leave.

As a society we need vulnerable people to be cared for and that is why we have domestic leave enshrined in our law. Bangs was in a difficult situation and was doing the right thing to care for his family. Unfortunately, it created difficulties for the business, but they were not paying him for the time off and there were other staff who could pick up his work, but there wasn’t anyone else available to care for his sick family.

Bangs was awarded payment for the 19 weeks he was out of work, $15,000 for hurt and humiliation and around $6,000 costs.

It is prudent for all of us , when something gets under our skin, to step back and take some independent advice that takes into account the whole situation. It seems that Johnstone, became totally focussed on this issue and lost sight of the fact that Bangs was a diligent father, doing his best to settle his young family and unwell wife into their new lives. With a little patience, the outcome could have been much happier for all.

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