Can you dismiss an employee while they are on leave?

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Most HR professionals know that disciplinary procedures need to be fair and reasonable – but is this ever possible when an employee is on leave? Aside from the moral issues, is it ever legally acceptable to terminate someone who is on leave?

According to Karen Radich, barrister at Clifton Chambers, an employee can be dismissed while they are on leave, but only if the employer has grounds for dismissal and acts in a fair and reasonable way.

However, she added that these can be tricky obligations to meet when a person is on leave, because a dismissal process – whether for misconduct or redundancy – will usually require at least one face-to-face meeting with the employee.

“Otherwise, the employer will struggle to comply with the requirement in section 4(1A)(c) of the Employment Relations Act to have given the employee an opportunity for comment on all relevant information before a decision is made,” Radich explained.

“It may not also be ‘fair and reasonable’ to dismiss someone without first meeting with them.”

She also noted that an employee who is on parental leave has greater protections, due to the Parental Leave and Employment Protection Act.

‘Fair and reasonable’ processes

While Radich conceded that dismissing an employee who is on leave entails several risks, she had some suggestions for employers who find themselves in such a situation.

“Employers must do their utmost to give the employee access to a face-to-face meeting,” she advised.

“It’s very hard to demonstrate fairness if the employer hasn’t met with the person.

“If a person has been accused of serious misconduct, and then has been injured or gone on sick leave, the employer needs to do all they can to get the employee’s response to the allegations.”

She suggested inviting the employee to attend a meeting in person, or writing to the employee to inform them that the company requires their response to the accusation.

“This can be difficult if the employee is away from the workplace, especially if you’re dealing with someone who is not particularly literate,” Radich added.

What if the employee refuses to attend?

In a case where the worker refuses to attend a disciplinary meeting, the employer needs to come up with workable options.

“If the employee can’t get to the workplace, the employer might consider paying for a taxi,” Radich suggested.

“Or if the employee has internet access, they could suggest having the meeting via Skype. Alternatively, the employer could ask for permission to meet with the employee at their house.”

She told HRM that she has seen this happen with redundancy where an employee has been at home on maternity leave.

“Usually, the employer wants to talk to the worker but doesn’t want to interrupt them when they’ve just had a baby,” Radich continued.

“Often employees in this situation are quite happy for their employer to pay them a brief visit; the employer generally works around the employee’s schedule.

“Some people are also happy to bring their baby into work or have a discussion via telephone.”

Radich also noted that the same situation can arise within companies with trans-Tasman or international operations – or even in companies with multiple locations around New Zealand.

“The rule of acting fairly equally applies to where the employer is remote from the employee,” she explained, emphasising that under the Employment Relations Act, it all comes down to offering the employee the opportunity to discuss the situation before taking action.

“Where the employer and employee are in different locations, the employer should see the employee face to face if possible,” Radich told HRM.

“However, if the employee has already confessed the misconduct to a decision maker based in their location, it may not be necessary to visit the employee in person.

“The key is making sure that the employee has had a chance to input to the investigation process.”

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