Compassionate Leave

In Australia, there are almost 14.5 million workers. Almost all of these workers will experience a personal tragedy during their working lives. Under the Fair Work Act 2009, these workers have a right to take compassionate or bereavement leave. Employers can offer more generous arrangements as part of an employment contract or industrial instrument, but they cannot provide less than the statutory entitlement. This article looks at workers’ entitlement to compassionate leave in Australia.

Compassionate leave

Amongst other benefits guaranteed by the National Employment Standards, workers have a statutory entitlement to two days of compassionate leave each time they qualify under the rules. Compassionate leave is available in the following circumstances:

• when a member of the worker’s immediate family or member of their household passes away or is diagnosed with a life-threatening illness or injury;
• the worker has a miscarriage, or a current de facto partner or spouse of the worker has a miscarriage; or
• a baby is stillborn in the worker’s immediate family or household.

What does ‘immediate family’ mean?

Under employment law, immediate family means the employee’s:

• current and former spouse
• current and former de facto partner
• child
• parent
• sibling
• grandparent
• grandchild

The term immediate family also extends to the immediate family of a worker’s de facto partner or spouse (and the immediate family of a former de facto partner or spouse), relatives through adoption, and step-relations, such as a step-child and step-parent. Compassionate leave can also be accessed for other relatives, such as aunts and uncles, if they are members of the worker’s household or with the employer’s consent.

Compassionate leave can be taken as a continuous two-day period, or taken as two individual days of leave, or in any other arrangement agreed between the employee and their employer. Compassionate leave does not accumulate, cannot be cashed out, and is not part of the worker’s personal or carer’s leave balance. If an employee is already on recreational leave when they experience the bereavement, they can use their allocated compassionate leave instead of their recreational leave.

Pay while on compassionate leave

Permanent full-time and part-time workers receive their base pay for the ordinary hours they would have otherwise worked. However, the worker is not entitled to incentive payments such as overtime, bonuses, or penalty rates. Casual employees are only entitled to unpaid compassionate leave.

Process for taking compassionate leave

The employee must give notice to their employer as soon as possible that they are taking compassionate leave. At this point, the employee should inform their employer of how much leave they expect to take and any other details that allows the employer to plan appropriately.

Some employers are willing to take on faith that an employee has experienced a bereavement and needs to be away from work for a few days. However, an employer can reasonably ask for evidence to support the request for leave, such as a death certificate or funeral notice. If the employee does not provide the requested evidence, they may not receive the compassionate leave.

The Federal Circuit Court clarified the evidence requirements in Morris v Allied Express Transport Pty Ltd [2016]. In this case, an employee took a day of compassionate leave when her grandfather passed away. Six weeks later, she asked for a second day of compassionate leave to attend a memorial service for her grandfather. The employer considered her evidence (a newspaper death notice) to be insufficient evidence to warrant the granting of a second day of compassionate leave taken so long after the death. The employee claimed that following an acrimonious meeting between herself and her employer, she was dismissed. She claimed that this was adverse action that was directed at her for exercising her workplace right to seek compassionate leave.

Ultimately the court agreed with the employer and found that the evidence presented by the worker was insufficient to demonstrate the connection between the bereavement and the request for leave 6 weeks later. As such, the worker was not entitled to compassionate leave and consequently was not exercising a workplace right during the meeting with her employer. The Court noted that the definition of sufficient evidence varies according to the specific situation. For instance, very slight evidence would be enough to justify the worker being absent for a day immediately following the death of a family member, especially a close relation. Otherwise, a death certificate, funeral notice or statutory declaration may be necessary. In this particular case, the Court stated it would have been sufficient for the worker to produce a document showing that the date of the memorial service was indeed 6 weeks after the death. This would have been sufficient to demonstrate that there was a genuine connection between the bereavement and the requested day of leave.  

At Go To Court Lawyers, our solicitors can provide further clarification about the nature and allowance for compassionate leave. Please contact the team on 1300 636 846 for any legal advice.