Former Employment Court Chief Judge Graeme Colgan, who is a Barrister and Employment Law Specialist, wrote a Letter to the Editor after reading last week’s article about Medical Incapacity in Employment and as grounds for dismissal.
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I read with interest Hannah Martin’s recent article on Medical Incapacity in Employment and as grounds for dismissal. There is nothing with which I disagree in Ms Martin’s analysis and I wish only to emphasise two points for completeness and raise for readers’ consideration one consequential issue which has the potential to complicate this already tricky area of the law.
First the additional comments. One, however we categorise or label a justification for a dismissal, the test that will be applied to the justification for a dismissal on grounds of medical incapacity will be that set out in s103A of the Employment Relations Act. In summary, the Authority or the Court will have to determine whether a fair and reasonable employer could, in all the circumstances, have dismissed the incapacitated employee and, whether how this dismissal was effected, was what a fair and reasonable employer in the circumstances could have done.
Two, I re-emphasise Ms Martin’s point that reliance on contract frustration can be problematic, especially if there is still the work to be performed for the employer. In any event, unless an incapacitated employee agrees to resign or retire, the employer is still going to have to dismiss and, potentially at least, then to justify under s 103A, that termination of the employment. So, contract frustration should not be seen as a shortcut to justification nirvana.
Now to my consequential point. If an employee’s medical incapacity amounts in law to “a disability”, what are the implications under anti-discrimination legislation, the Human Rights Act and relevant parts of the Employment Relations Act? So far as I am aware, there is little if any caselaw guidance on this question, at least at authoritative level. The relevant statute law does not appear to relate only to hiring already disabled employees, but appears to extend to obligations that arise when a non-disabled employee becomes disabled in the course of employment.
Nor is disability apparently confined to the purely physical: a chronic illness may amount to a disability as may a mental or psychological condition that affects an employee’s performance of his/her work: see definition, s21 Human Rights Act. And, the legislation requires employers in some circumstances to what is sometimes called “accommodate” employees’ disabilities: see, for example, ss 29 and 35 of the Human Rights Act.
So, a prudent employer faced with the already difficult task of how to treat an incapacitated employee, would do well to consider these legal obligations, if only to avoid being the forensic guinea pig in a test case.
Barrister and Employment Law Specialist Graeme Colgan graduated LLB(Hons) from the University of Auckland in 1976 and was admitted to the bar in the same year. Graeme practiced as a barrister and solicitor in the fields of employment law, family law, criminal law and general civil litigation until 1987 when he joined the independent bar as a barrister in Southern Cross Chambers in Auckland.
Graeme’s practice continued in the same fields of law until 1989 when he was appointed as a Judge of the Labour Court of New Zealand. At 35 years of age he was the youngest appointee to that Court or its predecessors. In 1990 the Labour Court became the Employment Court and, in 2005, Graeme was appointed as Chief Judge of that Court. He retired from judicial office in 2017 after 28 years on the bench, the last 12 as the Chief Judge. Graeme is the longest-serving judge of that Court and its predecessors. He has presided over cases dealing with significant issues of employment law and practice. He has also presided over numerous Judicial Settlement Conferences (in effect mediations) resolving difficult and sometimes notorious cases confidentially and without need for a public hearing and judgment.
Graeme’s experience has not only included being a judge of the specialist Employment Court, but has encompassed lecturing to undergraduate and graduate classes at the University of Auckland, Waikato University, Victoria University of Wellington and AUT University in Auckland. He has delivered papers and presentations to numerous NZ and overseas employment law conferences. Graeme has lectured at the Royal School for Judges in Cambodia and chaired an ILO project for the reform of the labour laws of Cambodia.
Graeme has been and remains a member of New Zealand and international organisations including LAWASIA, the Australian Labour Law Association, the NZ Labour Law Society, and the Arbitrators and Mediators Institute of NZ, of which he is now an Associate Member (AAMINZ). He is a member of the Australasian Chapter of the American and Canadian Associations of Workplace Investigators. Graeme was formerly a member of the NZ Football Appeals Committee. He has made numerous submissions to Parliamentary Select Committees considering employment-related legislation.
Graeme is also a member of the Editorial Board of Butterworts Employment Bulletin (LexisNexis) and a contributor to Mazengarb’s Employment Law, a leading New Zealand textbook. Graeme is currently a member of the New Zealand and Auckland District Law Societies and of the New Zealand Bar Association. Contact Graeme at graeme@colgan.nz
