Imagine you’re a senior manager intent on making sure you have the staff numbers to handle an upcoming period of peak workload. With no notice whatsoever, a key staff member suddenly tells you he needs to take a few weeks off to look after his ageing parent.
What do you do? Do you need to agree to whatever he asks, even if it’s extremely inconvenient and you think it’s unreasonable?
Employers’ obligations
Personal and carer’s leave were established to help employees facing difficulties due to personal illness, caring responsibilities, family emergencies and the death or serious illness of a close family member.
The National Employment Standards provides that full-time employees are entitled to 10 days paid personal or carer’s leave for each year of continuous service with an employer, and up to two days paid compassionate leave for each occasion a member of the employee’s immediate family or household dies or has a life-threatening illness or injury.
Personal leave accrues on the basis of an employee’s ordinary hours of work and can be taken at any time, subject to an employee providing reasonable evidence of the need to an employer.
Part-time employees have a pro-rata entitlement depending on their hours of work. Casual employees are entitled to take two days unpaid carer’s leave or unpaid compassionate leave if a member of the employee’s family or household requires care or support due to illness, injury or an unexpected emergency.
Caring responsibilities
We all have parents. And these days, more and more Australians are living into older ages – the number of those who live to at least 100 has more than doubled in the past two decades. And much greater numbers are living well into their 90s, despite chronic illnesses. Nevertheless, a person’s need for care and support can suddenly and unexpectedly increase, for example, in the wake of a stroke, diagnosis with a terminal disease, or the decline or death of a carer.
In such cases, responsibility may fall on a person’s child, sibling, partner or even grandparent or grandchild. For the person who must deal with the emergency, take account of the requirements and options, decide what to do and make arrangements, the sudden demand on their time and attention can be enormously stressful and disruptive of their normal routine.
The same applies to unplanned emergencies staff may have with their partners or children – whether it’s a toddler’s surprise asthma attack or a de facto partner’s car accident, the urgency of the situation swamps the resources of the staff member, who may be unable to come to work and be productive.
Managing requests for personal and carer’s leave
Considering the stressful nature of the situation a staff member is dealing with, management needs to recognise the justification for the person’s absence from work and make sure staff are able to take leave according to their entitlements. This was brought home by a case that was reviewed by the Administrative Affairs Tribunal.
An employee’s frail aged mother became unwell during a Christmas-New Year holiday period when short-term medical treatment and care was unavailable due to the holiday. The staff member needed time off work to take care of his mother and was not able to reach his supervisor by phone, so he emailed his manager saying he could not come to work the next day and would need to work part-time for a few weeks until care could be organised for his mother.
The manager was not satisfied the leave was warranted, expected the staff member to work full-time and wanted to know when he would be able to meet his full-time responsibilities.
The distressed staff member subsequently experienced anxiety and sleep disturbances and was diagnosed with an adjustment disorder with an anxious mood. He remained unfit for work for several months and applied for workers compensation.
Comcare denied liability and maintained that his condition was not compensable because it had arisen from ‘reasonable administrative action’. The employee applied to the Administrative Affairs Tribunal to review the case, and the tribunal found that the work situation had significantly contributed to the employee’s psychological symptoms.
It found the manager’s response had not been ‘reasonable administrative action undertaken in a reasonable manner’. Compensation was awarded to the staff member.
The case made it clear that unreasonably thwarting an employee’s request for personal or carer’s leave can be a significant source of additional stress for a person who is already troubled. Employers that deny such a request, claiming they are taking ‘reasonable administrative action’, must be sure they can demonstrate this is the case.
