Personal grievance upheld for delay in organising return to work after significant illness…

The Employment Court has found that an employee’s personal grievance was justified in relation to delays by the employer in arranging the employee’s return to work.  A second personal grievance was also upheld in relation to the employee’s failure to remove a manager from the process, who the employee felt had caused, or contributed, to the original illness.

Considering the two personal grievances in a global manner the Court awarded $30,000 for humiliation, loss of dignity and injury to feelings. 

Between 2016 and 2018 the employee was off work on unpaid sick leave.  At the end of 2018 the employee and employer entered into a settlement agreement, with a planned return to work.  There were several delays in arranging the return to work and the employee brought these proceedings claiming unjustified disadvantage for those delays and in relation to the manager involved in the return to work planning.

The Court found that there was an unjustified delay by the employer in failing to arrange a timely appointment for the employee to see the medical practitioner of the employer’s choice.  The employee had already provided medical reports from her medical practitioners.  

The Court also found there was an unjustified delay by the employer following receipt of the medical practitioner’s report in February 2019 and that there was no advancement of the return to work following that.  Further delays occurred while the employer spoke to another employee, but the Court found that those discussions should have taken place much earlier.  There was also a delay by the employer in organising mediation.

The Court held that the psychiatric treatment required by the employee, due to the delays, was not of the employee’s making and her health was significantly affected by the delays.

In relation to removing the manager, who the employee felt had caused or contributed to her original illness, the Court held that the employer should have recognised from mid-January 2019 that involving this manager was inappropriate, but they did not take any action to remove her from the process until mid-April 2019.  That led to an unjustified disadvantage to the employee.

The employee also claimed that they were discriminated against because of their disability.  The Court held that that disability related both to her psychiatric and psychological illnesses.  The Court found that for discrimination purposes it would compare the employee with the disability, to an employee without a disability.  It was not appropriate to compare the disabled employee with another disabled employee in the work place.  Such a comparison would be a disparity claim which was not pleaded in this case.

In relation to remedies for the disadvantages the Court said “Where a disadvantage grievance involves very serious health issues, it is appropriate to conclude that the claim justifies a higher award”.  The Court awarded $30,000 for the hurt and humiliation.

The employee also brought a claim in relation to what rates of pay she should have been on following the settlement. The Court increased the hours that she should be paid from 15 hours per week, which the employer had paid for, to 30 hours per week from April and 40 hours per week from June. This was because the return to work was supposed to have been a graduated return and therefore the employee should have been paid for those hours, had the return to work gone ahead in a timely fashion. 

The Court rejected claims that the employee should have been on a higher base salary because of the settlement agreement. Any arguments of that nature had already been settled in 2018.  The Court also rejected the employee’s claim that she should be paid for a full 40 hour week from the time of the settlement.  The Court held that the employee was not fit to return to work fulltime and that her medical evidence supported only a graduated return to work.

It is important for employers to act reasonably and fairly and not delay implementing any agreed return to work programme or delay designing such a programme.  If serious health issues arise from such delays significant damages will be awarded by the Court.




Alan Knowsley
Employment Lawyer
Wellington