01 Aug NES Series: Personal/Carer’s Leave

This article is the fourth in a series of articles outlining the operation of various National Employment Standards under the Fair Work Act 2009 (Cth) (“Fair Work Act”). This article outlines employees’ base entitlements to personal/carer’s leave under the Fair Work Act, not considering any other entitlements that may be available under other industrial instruments or employment agreements and documentation. 

 Personal/carer’s leave under the Fair Work Act encompasses three types of leave:

1. paid personal/carer’s leave;
2. unpaid carer’s leave; and
3. compassionate leave (unpaid for casual employees).

Entitlement

Employees, other than casual employees, are generally entitled to accrue 10 days of paid personal/carer’s leave per year of service under the Fair Work Act, and are entitled to take personal/carer’s leave:

1. because the employee is not fit for work because of a personal illness, or personal injury, affecting them; or
2. to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

• a personal illness, or personal injury, affecting the member; or
• an unexpected emergency affecting the member.

Employees, including casual employees, are entitled to take two days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family, or a member of their household, requires care or support because of a personal illness, a personal injury or an unexpected emergency affecting the member.  Employees cannot take unpaid carer’s leave during a particular period if they could instead take paid personal/carer’s leave.

Finally, employees are entitled to take two days of compassionate leave for each occasion where a member of the employee’s immediate family, or a member of their household:

1. contracts or develops a personal illness that poses a serious threat to his or her life;
2. sustains a personal injury that poses a serious threat to his or her life; or

Such leave can be taken by the employee:

1. to spend time with the member of their immediate family or household who has contracted or developed the personal illness, or sustained the personal injury; or
2. after the death of the member of their immediate family or household.

Such leave is paid, except for casual employees whose leave is unpaid.

Notice and Evidence Requirements

The entitlement to take paid personal/carer’s leave, unpaid carer’s leave or compassionate leave is underpinned by the requirement to give notice and, where requested, evidence, to an employer.

Under the Fair Work Act, employees must give notice of taking the leave as soon as practicable (which may be after the leave has already started) and must advise their employer of the period, or expected period, of the leave.  Where requested, an employee must give evidence that would satisfy a reasonable person that the leave is taken for one of the reasons specified above (i.e. relating to that type of leave).  A modern award or enterprise agreement may also specify what kind of evidence an employee must provide in order to be entitled to the leave.

If an employee fails to give notice or fails to give evidence when requested, the employee is not entitled to take the leave.  For example, in Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, the employee alleged that she had a workplace right to take compassionate leave, and that adverse action was taken against her as a result of her proposing to exercise that right.  The employee purported to take compassionate leave to attend a memorial service for her grandfather that was to occur around three weeks after his death.  The employer requested evidence that the leave she sought to take was for the death of her grandfather, but the employee did not provide such evidence.  Although she had provided a death notice, the employer said that this was insufficient for the leave requested for the memorial service. The Court found that in the circumstances, the employee did not give appropriate evidence and consequently did not have the right to take compassionate leave and did not have the workplace right she had alleged on the particular day.

In examining the provisions of the Fair Work Act regarding compassionate leave, the Court noted that the leave (in this particular case) had to be for the death of the family member.  The Court said that this means “there must be some evidence of that causal connection” between the type of leave requested and the reason for taking the leave, where the employer requires such evidence.  The Court further noted that the nature of the connection and the evidence required (in accordance with the Fair Work Act) will depend on the circumstances.

Although the outcome of this case was very much based around the circumstances of the matter, the decision does provide some clarification on the causal connection required between the type of leave being requested and what the evidence must show (where requested by an employer), in terms of the leave being for a permitted reason.  If you require assistance in managing employee requests for personal/carer’s leave, unpaid carer’s leave or compassionate leave, or any aspect of such leave, please contact us.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.