EMPLOYEES VERSUS CONTRACTORS
November 7, 2014
WHAT AUTHORITY DOES AN INDIVIDUAL DIRECTOR HAVE TO BIND A COMPANY?
December 1, 2014

EMPLOYMENT ISSUES – AN OVERLY SUSPICIOUS EMPLOYER

The case of Narayan v Telecom was decided in the Employment Court in June this year and involved the dismissal of an employee who had provided a rather suspicious medical certificate.   The employee applied for leave to travel to Fiji over the Christmas period returning on 3 January.   His leave was only approved to 27 December.   However, the employee then fell ill at the end of his holiday and did not return to work until 3 January.

After a request was made, the employee eventually produced a medical certificate from a Fijian hospital.   The employer was suspicious as to the genuineness of the medical certificate and whether it had in fact come from the doctor or hospital.   The employer carried out inquiries of the hospitals in Fiji about the customary form of a medical certificate and the identity of the doctor who had signed it.

The Court found that there was no doubt that the employer had grounds for its initial suspicion based on the circumstances of the return to leave and the employer’s subsequent conduct.   However, the Court found that the employer had acted inappropriately by initially contacting hospitals in Fiji instead of making first inquiries with the employee directly.

In its decision the Court found that even though the disciplinary process had been fair, the decision to dismiss the employee was not justified.   There had been an inappropriately suspicious stance taken from the outset and the employer should have raised the issues directly with the employee before making third party inquiries on Fijian hospitals.

The employer had also received, prior to the dismissal decision, confirmation from the hospital that the doctor named on the certificate said he had seen the employee and issued the medical certificate.   Therefore, although there were discrepancies with the hospital’s records, the employer was found to have no real basis on which it could have concluded that the certificate was fake at the time of the dismissal.

The important lessons for other employers are:

  • The Court’s expectation that an employer will raise issues with the employee in the first instance before making third party inquiries and taking an overly suspicious stance.
  • Dismissal decisions must take into account all information