Can my employer dismiss me for being sick too often in New Zealand?

Last updated: 25 August 2026 | Written by Andy Bell, Partner, Lane Neave

Yes, but only in limited circumstances and only after a fair process. An employer in New Zealand cannot dismiss you simply for using your sick leave, and being sick is not misconduct. Employment can lawfully end for medical incapacity only when your absence or prognosis means a fair and reasonable employer could no longer be expected to keep the job open.

Every dismissal, including for medical incapacity, must be justified under section 103A of the Employment Relations Act 2000: what a fair and reasonable employer could have done in the circumstances. In Lal v The Warehouse Ltd [2017] NZEmpC 66 the Employment Court spelled out what that means for illness: a reasonable opportunity to recover, a fair inquiry into the prognosis, a warning that dismissal is possible, alternatives considered, and genuine listening before deciding.

Under the Holidays Act 2003, most employees get 10 days of paid sick leave a year after six months, with unused days carrying over up to a total balance of 20 days. Running out of paid sick leave does not, by itself, justify dismissal. If you are dismissed for illness without a fair process, you have 90 days to raise a personal grievance.

How much sick leave am I entitled to in New Zealand right now?

As at August 2026, sick leave is still governed by the Holidays Act 2003. Section 65 gives employees 10 days of paid sick leave per year after six months of continuous employment. Unused days carry over, but section 66 caps the total balance at 20 days unless the employer agrees to more.

The Employment Leave Act 2026 will replace the Holidays Act. It received Royal assent on 6 August 2026 and comes into force on 6 August 2028. From then, sick leave will accrue from day one at not less than 0.0385 hours per standard hour worked (about 10 days a year for a full-timer), capped at 160 hours, with part-timers accruing pro rata.

When can my employer ask for a medical certificate?

Under section 68 of the Holidays Act 2003, an employer can require proof of sickness (usually a medical certificate) once you have been away for three or more consecutive calendar days, counting weekends and days you were not rostered to work.

An employer can ask for proof earlier, but only if it asks as soon as possible and pays the reasonable cost. A certificate is proof that you were unfit for work; it is not consent for your employer to contact your doctor or obtain your records.

Is being sick too often misconduct?

No. Genuine illness or injury is not misconduct and should never go through a disciplinary process. Medical incapacity is a separate, no-fault category: the question is not whether you did something wrong, but whether you can do the job now or in the foreseeable future.

Warnings for certified sick days, or a disciplinary meeting about “attendance” that is really about health, make the process unfair from the outset. In VXO v Northland District Health Board [2023] NZERA 97 the Authority confirmed an employer can pause a disciplinary process when an employee falls seriously ill and later move to a medical incapacity process, if it follows the steps below.

What if I take lots of short sick days rather than one long absence?

The same rules apply. A pattern of frequent short absences is handled through the same no-fault process: the employer asks (with consent) for medical information about the underlying condition, discusses whether adjustments would reduce the absences, and warns that the job is at risk if the pattern cannot be sustained.

Suspected misuse of sick leave, such as absences that always fall on Mondays, is a separate disciplinary matter that needs its own investigation and real evidence before any action.

What process must an employer follow before dismissing someone for medical incapacity?

In Lal v The Warehouse Ltd the Employment Court upheld a dismissal after roughly two years of absence following a workplace ankle injury, but only because the employer had done the work.

• A reasonable opportunity to recover: How long is reasonable depends on the employment agreement, any incapacity policy, the nature of the position and length of service. The legislation sets no fixed period.
• A fair inquiry into the prognosis: The employer must ask for current medical information (with consent), consider it properly, and where the position is unclear, seek a specialist or occupational health opinion.
• Genuine engagement and warning: The employer must explain why it is inquiring, say that dismissal is a possible outcome, and give the employee a real chance to comment before deciding.
• Consideration of alternatives: Modified duties, reduced hours, a graduated return, redeployment or further unpaid leave should be considered where realistically available.
• A decision on current evidence: The decision is judged on the information the employer had when it took effect, so months-old certificates are not enough.

Section 103A(5), as amended by the Employment Relations Amendment Act 2026, means a dismissal will not be unjustified solely because of process defects that did not treat the employee unfairly. Skipping medical information, warning or consultation is not that kind of defect; it goes to the heart of fairness.

How long is too long? The “no longer able to hold the job open” test

The law does not require an employer to keep a job open indefinitely, even for a serious illness. The test is whether, on the medical evidence, a fair and reasonable employer could no longer be expected to wait.

A clear return date in six weeks is very different from “no timeframe can be given.” A safety-critical role that cannot be covered justifies a shorter wait than a large Wellington employer with relievers on hand, and long service earns more patience.

Fairness also cuts both ways: an employee who ignores letters makes it easier to conclude the position cannot be held. Dismissing while an employee is still on paid sick leave, or within weeks of a certificate giving a return date, is thin ice.

What if my illness is a work injury covered by ACC?

ACC cover does not stop a medical incapacity dismissal; Lal itself involved a workplace injury. What ACC changes is the evidence: a rehabilitation plan and case manager give far better prognosis information than a bare certificate, and dismissing while a return-to-work plan is running is risky.

Can dismissing me for illness be disability discrimination?

It can be. Disability is a prohibited ground under section 21(1)(h) of the Human Rights Act 1993, and the definition expressly includes physical and psychiatric illness. Section 104(1)(b) of the Employment Relations Act allows a personal grievance where the dismissal itself was by reason of discrimination on those grounds, so a dismissal for a health condition can be both unjustified and discriminatory.

Section 29 of the Human Rights Act gives employers a defence where the employee could only do the job with special services or facilities it is not reasonable to expect the employer to provide, or where the condition creates a risk of harm that cannot reasonably be reduced. So reasonable accommodations must be considered first.

A discrimination grievance also remains open to employees above the $200,000 high income threshold, who can no longer claim unjustified dismissal.

“Almost every medical incapacity case I see go wrong goes wrong for the same reason: the employer got frustrated and moved too early, on too little information, without asking the employee what would get them back to work. The employers who win these cases can show a paper trail of patience, medical evidence and genuine alternatives. The employees who lose them usually stopped answering the phone.” Andy Bell, Partner, Lane Neave (Legal 500 Asia Pacific Recommended Lawyer; Doyle’s Guide Recommended Employment Lawyer 2026)

What should I do if my employer says my sick leave is a problem?

• Engage, in writing: Reply to letters and attend meetings, or explain why you cannot. Silence is the most damaging thing you can do, and good faith under section 4 entitles you to the reasons and information before any decision.
• Provide medical information: Ask your GP or specialist for a report on prognosis and a likely return date, not just fitness for the last fortnight.
• Propose a return-to-work plan: Suggest a graduated return, reduced hours, changed duties or a review date, and put it in writing so the employer has to respond.
• Get advice early: If dismissal happens, you have 90 days to raise a personal grievance. See our guide on how to raise a personal grievance with your employer.

What should employers do? A medical incapacity checklist

Step	In practice
Separate health from conduct	No warnings for genuine illness. Follow any incapacity clause or policy.
Get medical information with consent	Ask about prognosis, restrictions and return date. Offer to fund an occupational health assessment.
Explain the process	Say in writing why you are inquiring and that termination is a possible outcome.
Consult and listen	Meet, allow a support person, invite proposals and consider them genuinely.
Consider alternatives	Modified duties, reduced hours, redeployment, unpaid leave. Record why each is or is not workable.
Decide on current evidence	Set a review date, decide only when the picture is clear, give written reasons, honour notice.

These dismissals are a common trigger for MBIE mediation in Wellington, and the Authority will expect a paper trail behind each row.

What can I claim if I was unjustifiably dismissed for being sick?

An unjustified dismissal personal grievance must be raised with the employer within 90 days of the dismissal under section 114 of the Employment Relations Act; extensions are granted only in exceptional circumstances.

Remedies under section 123 include lost wages, compensation for humiliation, loss of dignity and injury to feelings, and sometimes reinstatement. Sections 123B and 123C, inserted by the 2026 amendments, remove or reduce remedies where the employee’s own conduct contributed. Illness is not contributory conduct, but refusing to engage with a fair process can be.

Key takeaways

• Illness is not misconduct: medical incapacity is a no-fault process, for frequent short absences as much as long ones.
• Ten days, 20 total, three days for a certificate: Holidays Act 2003 rules apply until 6 August 2028.
• Lal sets the standard: time to recover, fair medical inquiry, warning, alternatives, engagement on both sides.
• Ninety days: the window to raise a personal grievance.

Frequently Asked Questions

Can I be dismissed while I am on sick leave in New Zealand?

Yes, but not because you are on sick leave. An employer can only end employment for medical incapacity after giving you a reasonable opportunity to recover, considering current medical information, warning you that dismissal is possible, and considering alternatives. Dismissal simply for using your entitlement is likely to be unjustified.

How long does an employer have to hold my job open if I am sick?

There is no fixed period in New Zealand law. The Employment Court in Lal v The Warehouse Ltd [2017] NZEmpC 66 said it depends on the employment agreement, any policy, the nature of the role, length of service and the medical prognosis. Months with no return date can justify dismissal; weeks with a clear return date almost never will.

Can my employer make me see their doctor?

An employer cannot force you to attend a medical examination, but it can ask you to consent to an occupational health assessment at its cost as part of a fair inquiry. Unreasonably refusing a reasonable request, made at the employer’s cost and with a clear purpose, can count against you, because the employer may then decide on the information it has.

Do I get paid if I run out of sick leave in New Zealand?

No, there is no statutory pay once your Holidays Act sick leave is used up. Your employer may agree to let you use annual leave, take sick leave in advance, or go on unpaid leave. Running out of paid sick leave is not, on its own, grounds for dismissal.

Is dismissing someone for a health condition discrimination?

It can be. Disability, which includes physical and psychiatric illness, is a prohibited ground under section 21(1)(h) of the Human Rights Act 1993, and section 104 of the Employment Relations Act 2000 allows a discrimination personal grievance. Employers must consider reasonable accommodations before relying on the section 29 exception.

For employees: employment law services for employees. For employers: employment law services for employers.

Andy Bell is a Partner at Lane Neave, an employment lawyer acting for employees and employers in Wellington. He is a Recommended Lawyer in the Legal 500 Asia Pacific and a Recommended Employment Lawyer in Doyle’s Guide 2026.

Last updated: 25 August 2026