News
Mental health days - fair or foul?
First published in The Independent, 4 July 2007.
Although the term mental health day probably has an antipodean origin, it is a concept which is internationally recognised.
For example, who can forget the antics of Ferris Bueller – who simply wanted a day off?
After studying reasonably hard throughout the school term, the young Ferris felt like he needed a break – not because he was sick, but rather for the sake of his emotional and mental wellbeing.
As Ferris put it: if you don’t stop and have a look around every now and again, you could miss something.
New Zealand’s holidays legislation recognises the need for workers to have a few days off each year. Recently, the law was amended to allow all employees four weeks’ annual leave.
The same legislation also recognises the concept of sick leave. In addition to annual holidays, an employee is entitled to take up to five days off work each year if he or she is sick.
There is no definition of the concept of sickness in legislation – but an employee who takes three or more consecutive days off on the basis of illness may be required to provide a medical certificate validating his or her sickness.
The concept of a mental health day probably doesn’t fit within the law’s meaning of sick leave. A person – like Ferris Bueller – isn’t actually ill, but instead simply wants to “have a look around” instead of going to work (arguably for the sake of their mental health).
An employee in this situation should, in ordinary circumstances, take annual leave – rather than seek to claim part of their sick leave entitlement. But there are any number of apparent disincentives to do so.
Firstly, an employee would usually be required to seek their employer’s consent before taking annual leave – which is all but impossible if the desire to take a mental health day arises shortly after the worker wakes up in the morning. And what if the employer simply said no?
Secondly, there is some sort of psychological barrier for many employees in using annual leave. To many employees, it appears more appropriate – and fair – for the occasional day to be taken off without using up the precious annual holiday entitlement. Particularly if the employee perceives that he or she has been working particularly hard, and a day off in response is cosmically justified.
But employees seeking to take mental health days can sometimes find themselves in a lot of trouble.
The employee in McNeill v Solid Energy New Zealand Limited (Unreported, Employment Relations Authority, Auckland, 1 May 2007) was an electrician at a mine in Huntly. He had worked in his job for ten years, and was a delegate for the local union. He was known to suffer from occasional hay fever.
On the evening of 30 January 2006 McNeill rang his employer, said that he was suffering from hay fever and said that he would not be coming in for his midnight shift.
Next morning at 7am he put out to sea for a two day fishing trip. The trip had been pre-booked.
When he returned to work on 1 February 2006 he was called upon to represent a co-worker who had been asked to answer allegations about being absent without leave on the nights of 30 and 31 January. In fact, this other worker had been on the same fishing trip as McNeill – and had applied for annual leave to attend it. When that application was declined by the employer, he went anyway.
Amazingly, McNeill acted as this worker’s representative, but did not mention that he had also been on the same trip.
About a week later a manager discovered that McNeill had been on the trip as well. The employer commenced an inquiry – the end result of which was a decision to dismiss McNeill for serious misconduct involving falsification of sick leave.
There was some dispute about the validity of McNeill’s application for sick leave. The employer acknowledged that it was possible that he had been suffering from hay fever on the night that he had telephoned in sick. But there were a couple of factors that swayed the employer against McNeill. The trip had been pre booked. And the employer did not accept that, on the night before the trip, McNeill could have known that he was going to be sick for the next two days.
In any event, he had attended a recreational fishing trip when he was, on his own evidence, supposed to be sick.
In short, the employer concluded that McNeill had taken a Ferris Bueller day off.
The Employment Relations Authority accepted McNeill’s arguments that the employer had overreacted by dismissing him. There were particular provisions in the employment agreement that should have been followed where the employer suspected falsification of leave – that had not been followed.
At the same time, however, the Authority considered that McNeill had contributed to the situation which had given rise to his dismissal. It rejected reinstatement as being impractical, and reduced his remedies by 50%.
This case illustrates the pitfalls faced by employees who attempt to take mental health days. At their core, such attempts to take sick leave amount to falsification – and dishonesty. Such things may justify disciplinary action – including dismissal.
It is probably lucky that Ferris Bueller was not employed when he took his day off.
