In a recent Employment Court decision, Canterbury Westland Kindergarten Association Incorporated v Barnes  NZEmpC 199 an employee was awarded more than $100,000.00 in disregarded sick leave caused by bullying in the workplace.
Ms Barnes worked at a Christchurch kindergarten for 23 years. Ms Barnes was employed under a collective agreement ("CA"). The CA provided for disregarded sick leave, which is time off for sickness that is directly attributable to the workplace and is not deducted from an employee's sick leave balance. Ms Barnes took sick leave after experiencing post-traumatic stress disorder ("PTSD") resulting in anxiety, sleeplessness and panic attacks due to being bullied by a manager. Her employment was terminated by reason of medical incapacity. Ms Barnes pursued a claim of unjustified disadvantage and unjustified dismissal in the Employment Relations Authority ("ERA") against the Canterbury Wetland Kindergarten Association (the Association). The ERA found that Ms Barnes had been unjustifiably disadvantaged and awarded her $30,000.00 compensation for hurt and humiliation. The ERA left it to the parties to resolve the issue regarding sick leave under the CA.
The Association was prepared to provide the equivalent of three months wages for sick leave. Ms Barnes claimed she was entitled to two years disregarded sick leave. The ERA reserved costs on disregarded sick leave and expressed a view on what it believed to be the appropriate amount. The Association challenged the decision to the Employment Court.
Employment Court Decision
The main issue before the Employment Court concerned the interpretation of the disregarded sick leave clause within the CA. The clause provided:
"Sick leave not exceeding an overall aggregate of two years may be granted by the employer in circumstances where an illness can be traced directly to the conditions or circumstances under which the teacher is working, or where an injury suffered by the teacher in the discharge of duties occurred through no fault of the teacher…".
One interpretation was that the granting of disregarded sick leave is discretionary. A second interpretation, argued by Ms Barnes, required the Association to grant disregarded sick leave for the duration of the illness, in light of the two year time period, if Ms Barnes met the qualifying criteria in the agreement.
The Court determined that a contextual analysis was the correct approach in determining the correct interpretation of the clause. Provisions within the CA regarding sick leave were approached generously, for example, an employee could carry over up to a maximum of 306 sick days. The Court held that it would be inconsistent with the context of the agreement to reserve the discretion of an employer to lessen an employee's sick leave. The Court concluded, in consideration of the two year time frame, that Ms Barnes was entitled to disregarded sick leave throughout the duration of an illness that was directly attributable to the workplace.
The Association was ordered to pay two years of disregarded sick leave.
This decision confirms the use of a contextual analysis to determine a specific clause within a collective agreement.
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© McVeagh Fleming 2020
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