What You Need to Know About Taking Leave to Care for Others

What is Personal/Carer’s Leave?

Fair Work Act 2009 (Cth) (the Act) confers an entitlement of 10 days paid Personal/Carer’s Leave per annum for a full-time employee or a pro rata amount for part-time employees. Casual Employees do not have an entitlement to paid Personal/Carer’s Leave.

Personal/Carer’s Leave accumulates with every year of service but is not paid out upon termination.

Section 97 of the Act allows an employee to take paid Carer’s Leave to provide care or support to a member of the employee’s immediate family or household as a result of personal illness, injury or an unexpected emergency affecting that family member.

If an employee wishes to take a period of Carer’s Leave, they must notify their Employer of the period or expected period of leave as soon as possible.

An employer is entitled to requested evidence to substantiate the reason for the leave. The employee will not be entitled to take the leave if the employee fails to provide such notice, or evidence that would satisfy a reasonable person of the need or reasons for the leave.

What is Meant by “Immediate Family”?

A list of persons captured by the term “Immediate Family” is set out in Section 12 of the Act and includes:

  1. Spouse or de facto partner;
  2. Child or grandchild;
  3. Parent or grandparent; or
  4. Sibling;

Either of the Employee or of a Spouse or De Facto Partner of the Employee.

What is an “Unexpected Emergency”

There is very little guidance in the Act as to what is meant by “Unexpected Emergency”, however, what is clear, is that this is not limited to matters concerning illnesses or injuries and will often extend to caring responsibilities including ensuring children have their basic needs met.

By way of example, in 2013, the Federal Court held that an Employee needing to leave work to collect their primary school aged child constituted an unexpected emergency in circumstances where the employees’ ordinary arrangements fell through.

In a similar case, the Court did take into consideration whether the employee had taken all reasonable steps to find suitable care for the child and what other arrangements could be made to assist in the future.

Other examples which have been held to be “unexpected emergencies” include provision of car to a child when an employee’s pregnant partner gave birth prematurely and was hospitalised hours away from home.

Based on these examples, we can draw the general conclusion that what the Court will consider an “Unexpected Emergency” is broad and will be applied to situations that may not meet the typical definition of “emergency”.

Conclusion

Carer’s responsibilities are a protected workplace right. Failure to allow an employee to take the Carer’s leave entitlements or appropriately deal with a request for Carer’s Leave in an “unexpected Emergency” or for an “Immediate Family” member may constitute an adverse action and give rise to a General Protections claim being brought against the Employer.

If you are an employer or employee and you require assistance with Personal Leave, Adams & Partners Employment Law Team can assist you in ensuring you understand the legislation and how it applies to your unique circumstances. Contact us on (02) 4721 6200.

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