How can a seizure result in instant dismissal?

In the recent case of Wakeham v Pacific Decontamination Services Ltd [2019] NZERA 53, a newly appointed Managing Director suffered a seizure just three days into his new job.  He was hospitalised and returned to work two days later.  His Employer arranged a driver to drive him to and from work sites as the Employee was not allowed to drive for a period of time.  The Employee noticed that his pay decreased.  After questioning the accounts department the Employee was informed the difference would be paid in the next pay cycle.  This did not happen.  Instead he was told he needed to take a pay cut to compensate for the additional costs of a driver.

The Employer and the Employee met at a local coffee shop.  The Employer terminated him on the spot on the basis that his seizure had caused unforeseen stress and would cause additional expense.  Accordingly, he was no longer required.

There may be situations where an Employer can terminate an Employee’s employment for medical incapacity.  However, the Employer must be able to show that they can not accommodate the Employee’s circumstances and follow a good faith process.

The Employment Relations Authority (Authority) found the process was immediate and the test of justification in the Employment Relations Act 2000 was not satisfied.

The Employee was awarded $14,000.00 in total for unjustified dismissal.

An important note on lost wages

Not only is the case a timely reminder on the law around medical incapacity, it also highlighted that Employees must provide evidence when making a lost wages claim.

The Employee, in this case was informed by the Authority to provide documents evidencing his attempts to mitigate his lost wages.  He did not comply, but instead gave oral evidence highlighting the steps he took to find alternative employment.

The Authority awarded him four weeks of lost wages.  Arguably, he could have received remedies of three months lost wages if the evidence had been correctly supplied.

Workplace Law Team

If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:

Employment: Andrew Shaw, Fiona McMillan, Kathryn McKinney, Siobhan Rastrick, Hannah Martin, Holly Struckman, Anna Needham, Alex Beal, Ana Fruean
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Julia Strickett, Rita Worner, Lavinia Shanks, Winnie Chen, Ken Huang, Sally Stone, Mary Zhou, Sarah Kirkwwood, Isaac HuangLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan


Andrew Shaw
Partner, Lane Neave

t +64 3 353 8014
m +64 29 244 9001

Fiona McMillan
Partner, Lane Neave

t +64 9 300 6264
m +64 27 351 2000

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