The news of a family member passing away or sustaining a critical injury or illness is incredibly saddening and employers understand that their workers need to be with their loved ones during these difficult times. However employers also have a business to run so how do they strike a balance?
Under the NES, all employees (including casuals) are entitled to 2 days compassionate leave for each occasion when an immediate family or household member dies or suffers a life threatening illness or injury. This period can be taken as a single two day period, two separate one day periods or any separate periods that the employee and employer agree. Permanent employees are entitled to paid compassionate leave and casuals are entitled to unpaid compassionate leave. Employees are to give notice of the taking of leave and must provide evidence to substantiate the leave if requested by their employer.
In a recent case heard by the FWC, a sales manager’s request for compassionate leave to attend her grandfather’s memorial was initially denied after she failed to produce evidence when requested. However, during a meeting with management, which happened to be on the day of the memorial, the employee was issued with a ‘final warning letter’, which addressed her performance and behavioural issues. The employee was asked to read and sign the letter, which she refused to do.
Unfortunately, the employee did not handle the criticism well and responded to the letter with hostility and aggression. In order to ease the situation, management allowed her to attend the memorial, provided that she returns to work in the afternoon. However, the employee took this as a dismissal and claimed that Allied Express took adverse action against her because of her request to take compassionate leave.
The FWC found that she had no automatic right to take the leave because she failed to comply with the evidence requirements under s107 of the FWA. The fact that she was allowed to attend was a choice by management, so that she could cool-off and consider her behaviour in the meeting. The employee's claim that she was dismissed was also rejected, as whilst she was directed to leave work in order to attend her grandfather’s memorial service, she was told to return later that same afternoon. The FWC accepted that the warning letter was a response to the employee’s poor work performance and attitude towards the company, not her request for leave.
Compassionate leave requests are delicate and employers are reminded to treat each circumstance with sensitivity and respect, especially when incidents occur out of the blue. Nonetheless, employers are well within their rights to ask for evidence to verify the reason for the leave, which might include a copy of a death or medical certificate, a funeral booklet or a newspaper death notice. One would hope that no employee would actually lie about these events occurring, but then again… you never know.
Lessons for Employers
- Ensure your leave policy is comprehensive and outlines evidence requirements.
- If your employee falls under an award/enterprise agreement, check the provisions of these instruments on compassionate leave. You may find that the award allows for a period greater than two days.
- Consider providing ongoing support through time off to attend counselling, flexible working arrangements or additional assistance through the services of specialty organisations (Beyond Blue or Lifeline).
- As always, remember to document all leave requests in the employees personal file.
All employees are entitled to two days compassionate leave for each occasion when an immediate family or household member dies or suffers a life threatening illness or injury. However, employees are required to give notice of the leave and must produce evidence if their boss requests it.
 Morris v Allied Express Transport Pty Ltd  FCCA 1589 (5 July 2016)