The Employment Relations Authority has ordered the man's employer to pay lost wages and compensation. Photo / Stock
In the wake of his wife's death, a grieving widower took sick leave from his role as a "highly qualified specialist" due to his inability to focus at work – only to have his employer refuse to pay him for the time off and prohibit him from returning.
The man, whose details and that of his employer have been suppressed, has now been awarded more than $135,000 for loss of wages and compensation following an urgent application to the Employment Relations Authority (ERA).
The application was also to consider the man's reinstatement at work, but the ERA heard that just before its investigation was to take place in May this year, the employer had consented to his return to work.
What was left for the ERA to determine was whether the employer's decision to place the man on unpaid leave for six months was justified and – if not - what remedies should follow.
In the judgment, released last week, the widower's journey through grief and the effect it had on his employment was set out.
The man, a highly qualified specialist who has held a senior role with his employer for 21 years, suffered the loss of his wife in late 2020.
Prior to her death, he provided palliative care to her throughout a "long and difficult" decline of around three or four years, which required him to seek lengthy periods of sick leave to do so.
Following her death, the man returned to work in January 2021.
Within a few months he experienced difficulties coping in the workplace, including that he had become uncharacteristically short with his colleagues and was struggling to focus.
This was amplified by the nearing of the couple's wedding anniversary, which was the first since the death of his wife.
The man recognised he was not performing as he should at work and that in his senior position this created a potential risk.
On July 9, 2021, he advised his employer that he needed to take sick leave, stating he had been experiencing a mental health spiral and would be seeking medical help.
This was accepted by his employer and the man was placed on paid sick leave.
He provided his employer with a medical certificate and a draft return to work plan, put together with the help of a medical advisor.
But his deputy director did not accept the plan, stating it lacked information including a diagnosis and support the man may need upon his return.
In November that year, he was placed on unpaid sick leave and was not permitted to return to work.
He was told this was due to his failure to provide the information as requested and that he had already taken a significant amount of time off work as paid sick leave.
But the man, who had previously been struggling to obtain appointments with certain medical professionals to receive that level of information and had asked his employer to help access a specialist in a timelier way, was now considered by medical professionals to be in a fit state to return to work.
A medical advisor informed the employer of this and further referred to information provided by a GP and two other specialists who also confirmed he was fit to return.
But the employer declined to revisit its decision, citing it still required a diagnosis with more detailed information on workplace abilities and limitations, and the man remained on unpaid leave.
Over the following two to three months, the parties continued to discuss the provision of adequate medical information.
The employer eventually asked the man to attend a medical advisor selected by the employer, which he did, and it was this resulting medical report which saw the parties agree on the man's return to work.
In its investigation into the matter, the ERA found there was no assumption in the man's employment agreement that he would be entitled to receive paid sick leave on a long-term basis without review.
According to the contract, that review may take place following consideration of a medical report provided by a specialist arranged by the employer.
"[The employer] did review the applicant's continued sick leave, but did not do so following consideration of its own medical report, as none existed at that time, and it had taken no steps to require the applicant to undertake a medical examination."
The employer believed it had satisfied that criteria, as the man's own medical advisor had been involved, but accepted that it "had not taken the lead".
The ERA found the employer had not met its contractual requirements and further ruled that the decision to place the man on unpaid sick leave was unjustifiable.
It said the employer had been advised by its own staff that timely access to suitable medical specialists was of concern to the man and that a way around this was for the employer to step in.
But despite the contractual requirement for a medical report before the employer could review the man's pay, and despite the man asking for help in accessing a specialist, the employer did not take any steps to properly investigate its concerns, the ERA ruled.
The employer was ordered to pay the man his base salary from November 22, 2021 through to May 20, 2022, being $119,215.20.
The man will also receive contributions to KiwiSaver at the rate of 4 per cent of his base salary for that same period, $15,000 compensation for hurt and humiliation, and $828.00 as disbursements.