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Murmurings about the Holidays Act
People say the darnedest things.
New Zealand's holidays legislation is set to change on 1 April 2004 - when a new Holidays Act comes into force. Amongst other things, the Act will make change in areas such as annual holidays, public holiday entitlements and sick and bereavement leave.
Over the last few weeks, employment lawyers have been in high demand, providing advice to employers about their obligations under this new legislation. Something occurred to me, however, as a result of a conversation that I overhead the other day: I wonder if a culture common amongst many employees will be changed by this new legislation?
The conversation that I overheard was a chat between two colleagues from the same workplace. I hasten to add that it occurred when I was sitting next to these two gentlemen on a plane (possibly also proving the ongoing validity of the wartime warning "loose lips sink ships").
The conversation commenced with one colleague telling the other that he did not intend to attend work the next day (which was a Friday). When asked why, he explained that he had been required to work well past 5.00 pm on several days that week, and that he should be entitled to a day off as part of the principle of "swings and roundabouts".
Curiously, the second man reacted to this information by warning his colleague that he would be well advised to take annual leave for the day off. His warning was based on apparent knowledge that his colleague's boss was known to react poorly upon the discovery of "mental health days".
The first man was unmoved by this warning. He said that a co-worker - a woman who performed the same role as him - had taken almost three weeks off in the last year for sick leave - and therefore it was only fair that he be allowed at least the same period of time off himself. Besides, he said, he intended to leave his job within the next few months - and he wanted to maximise the payment that he would receive upon termination for accrued annual leave.
From a legal perspective, it is difficult to know where one would start analysing this conversation if required to do so. Perhaps it would be helpful for these two gentlemen to know a little about the philosophy that underlies our holidays legislation - because that would have a bearing upon the different matters that were the subject of their conversation.
New Zealand's labour market has, for a number of years, been founded upon an essential presumption that an employer is only entitled to seek 49 weeks of labour from an employee in each year. The worker is entitled to take the remaining three weeks for holiday - although the employer must continue pay the employee at his or her ordinary rate of pay during that holiday time.
There are, of course, additional entitlements. Employees are entitled to take public holidays in addition to those three weeks of annual leave. Further, New Zealand's law recognises that an employee cannot reasonably be asked to provide services during times of sickness or bereavement. A worker is entitled to take leave for these purposes in addition to other entitlements under the law.
In the case of the employee above, there was an expressed intention to take sick leave where the employee was not in fact sick. Regrettably, this type of practice is not uncommon - and the phrase "mental health day" is commonly heard in many of our workplaces. At its core, however, taking sick leave in these circumstances amounts to a misrepresentation.
Under the new holidays legislation an employer will be entitled to seek a medical certificate from an employee who has been sick for three days (whether they are working days or not). That evidential assistance would not, of course, have helped in this case - because the absence would only be for one day. At its simplest, the employer would be left to rely upon the word of the employee.
There is little doubt, however, that if exposed as a misrepresentation, the employee would be in breach of the obligation of good faith owed as part of the employment relationship. The employer could take disciplinary action as a result.
But that is not the most interesting aspect of this particular example. The employee gave two reasons for justifying this apparent misrepresentation - each of which merit consideration.
First, the employee claimed that as a matter of fairness and equality, he should be allowed to take as much sick leave as a colleague had taken over recent months. That logic is, however, necessarily flawed. The law simply recognises that employees should not be required to work when incapacitated by sickness. That recognition does not translate into an acceptance that if one worker is sick - and has a day off - then all other workers must similarly be entitled to the same amount of time off work. It is the annual holiday entitlement that employees should rely upon when taking time off work (and when not sick).
Secondly, the employee said that he did not wish to rely upon annual leave because he wanted to maximise his entitlement to be paid out when he left his employment. This comment perhaps reflects a common belief held by many employees - that accrued annual leave provides something of a superannuation fund which can be accessed upon termination. That is not, however, what the legislation intended. Employees should take time off. This social objective (which has been the subject of great historical debate over many years in industrial relations in New Zealand) also accords with more contemporary policies promoted by the Government - such as work-life balance. In short, employees should have holidays - and should not regard holiday entitlement as a means for receiving additional payments at a later time.
I am not sure what eventually happened to these employees following their conversation in the aeroplane. By the way that their conversation turned (to the subject of good fishing spots, and the availability of "tinny" boats to access them on the next day) one might have some concern that the outcome of this conversation was the occurrence of "mental health days" for each of them.
