Good grief – evidence requirements for compassionate leave

What you need to know

• Under the National Employment Standards, an employee is entitled to two days of compassionate leave when a member of the employee's immediate family or household dies, contracts or develops a life-threatening illness or suffers a life-threatening injury.
• However, an employee is not entitled to compassionate leave unless he or she has complied with the relevant notice and evidence requirements under the Fair Work Act 2009 (Cth). If requested to do so by his or her employer, the employee must produce evidence that would satisfy a reasonable person that the leave is taken "by reason of" or "as a consequence of" the death.
• The evidence required to satisfy a reasonable person in a particular case will vary according to the circumstances of the leave request. A recent Federal Circuit Court case considered these evidentiary requirements, finding that a death notice dated 1 May 2015 was insufficient evidence to establish a right to take compassionate leave to attend a memorial service more than six weeks later.

What you need to do

• Consider whether your leave policies adequately address the evidentiary requirements for compassionate leave.
• Provide clear and sensitive policy guidance to assist managers and reduce the risk of such requests being poorly received by employees.

Dealing with employee requests for leave is a challenging part of managing a workforce. It is an area that frequently involves employees' personal lives intersecting with their working lives, raising sensitive issues for managers and human resources staff to navigate.

A recent Federal Circuit Court case, Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, has considered one such thorny issue: the delicate matter of the supporting evidence an employer may require of an employee who has requested compassionate leave on the basis of a recent death in his or her immediate family.

We appreciate that employers may only reluctantly make such requests of employees. The decision in Morris therefore provides an opportunity to glean some rare insights into parties' rights and obligations with regards to compassionate leave.

Compassionate leave under the NES

The National Employment Standards in the Fair Work Act 2009 (Cth) provide that an employee is entitled to two days of compassionate leave when a member of the employee's immediate family (immediate family member means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee) or household dies, contracts or develops a life-threatening illness, or suffers a life-threatening injury. Each of those circumstances is defined as a "permissible occasion" under the Act and the entitlement to two days' compassionate leave arises in respect of each permissible occasion. The leave may be taken over two consecutive days, as two single days, or as agreed by the parties.

The notice and evidence requirements for compassionate leave stipulate that an employee must provide his or her employer with notice as soon as practicable that he or she will be taking compassionate leave and advise of the expected duration of the leave. In addition, if requested to do so by his or her employer, an employee must give the employer evidence that would satisfy a reasonable person that the compassionate leave is to be taken for a permissible occasion in circumstances prescribed by the Act.

Where the permissible occasion concerns a life-threatening illness or injury, the leave must be taken in order to spend time with the person suffering from the illness or injury; where the permissible occasion concerns the death of an immediate family member or member of the employee's household, the Act merely (and somewhat obliquely) provides that the leave must be taken after the death of the relevant person.

An employee (other than a casual employee) taking compassionate leave in accordance with these provisions is entitled to be paid at his or her base rate of pay for his or her ordinary hours of work in the leave period.

The facts in Morris

In Morris, the applicant claimed that she had been unlawfully dismissed from her role as the national business development manager of the respondent because she proposed to exercise a workplace right, namely, to take compassionate leave.

The Court heard that the applicant's grandfather had passed away on 1 May 2015 and that the applicant had taken compassionate leave on that day without controversy. Six weeks later, however, the applicant made a request to take a further day of compassionate leave in order to attend a memorial service for her late grandfather.

The applicant's manager requested the applicant provide evidence of the upcoming memorial service, a request that appears to have been motivated by the applicant's history during her employment, along with the time that had elapsed since her grandfather's passing.

In response to the request, the applicant produced a death notice to her manager. The applicant's manager considered the death notice to be insufficient evidence and requested the applicant attend a meeting, which ultimately involved a number of other senior managers of the respondent.

The applicant did not produce any further evidence in support of her request to take compassionate leave and following heated discussion with management was provided a final written warning letter outlining a variety of concerns with her sales performance and conduct. The applicant was asked to leave the workplace but instructed to return to work later in the day following the completion of the memorial service.

The applicant never returned to the workplace and instead filed a general protections claim alleging that she had been dismissed in the course of the meeting because she proposed to exercise her workplace right to take compassionate leave.

A "causal connection"

The decisive question in Morris was whether the applicant had a workplace right to compassionate leave given her failure to produce any evidence in support of her request for leave other than the death notice. As set out above, the Act requires an employee, upon request by his or her employer, to provide evidence that would satisfy a reasonable person that the compassionate leave is to be taken for a permissible occasion. If such evidence is not provided, the entitlement to compassionate leave does not crystallise; it follows that the employee has no workplace right to take the leave in such circumstances.

Judge Smith held that the word "for" in the context of the compassionate leave provisions means "as a consequence of" or "by reason of". In other words, there is no "automatic right" to take compassionate leave following the death of an immediate family member for "any reason at all".

Applying that construction to the facts in Morris, the applicant needed to show that the leave she proposed to take was somehow causally connected to the death of her grandfather. Judge Smith observed that the strength of the causal connection, and the nature of the evidence required to satisfy a reasonable person of that connection, will vary from case to case. His Honour commented that "very slight evidence may be required for leave taken on the day of the family member's death, particularly if the employee was especially close to the family member".

In contrast, his Honour considered that it was reasonable for the respondent in Morris to require more evidence from the applicant than the production of a death notice dated some six weeks earlier. Having failed to produce any such additional evidence, his Honour held that the applicant had no relevant workplace right to take compassionate leave and therefore no basis on which to allege that her employment had been unlawfully terminated.

Applying the burden of proof

While Morris provides some guidance on how to interpret the compassionate leave provisions in the Act, the practical application of the "causal connection" test may be challenging for employers.

While a death certificate or funeral notice may suffice in most circumstances when an employee makes a request, there may be circumstances where a statutory declaration from the employee constitutes an acceptable alternative.

Interestingly, although the Act provides that modern awards and enterprise agreements may include terms relating to the kind of evidence that an employee must provide in order to be entitled to compassionate leave, it appears that very few of these instruments actually address the issue.

There will frequently be occasions where a request for evidence by an employer is unnecessary. Nevertheless, employers may find it helpful to address these evidentiary requirements in leave policies for when relevant circumstances do arise. As well as providing some assistance to the managers and human resources staff responsible for assessing such leave requests, a clear and sensitive policy may also help to reduce the risk of a request for evidence being poorly received by an employee (as it was in Morris).

Employers should also ensure that information provided by employees in relation to compassionate leave requests is handled in accordance with applicable privacy laws and policies.

This decision should provide some assurance to employers that it is reasonable to request an employee to provide evidence where an application is made for compassionate leave.

Special leave refused in Anglo Coal

In another case addressing an employee's workplace right to take leave, the High Court has refused the CFMEU special leave to appeal the decision of the Full Court in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157. (See our Employment Alert dated 12 November 2015 on the Full Court's decision in Anglo Coal).

In Anglo Coal, the CFMEU alleged that an employee had been unlawfully dismissed for, amongst other reasons, exercising his workplace right to take personal leave. Both at first instance and on appeal (by a 2:1 majority), the employer's decision to dismiss the employee was held to be lawful on the basis that the decision maker's belief that the employee had been dishonest in his approach to making his leave requests was genuine. This conclusion was reached despite a finding that the employee's reasons for taking personal leave were also, as a matter of fact, legitimate.

Following the Full Court's decision on appeal, the CFMEU lodged a special leave application in the High Court. However, on 17 June 2016, special leave was refused by Chief Justice French and Justice Gageler.

Making the case: Insights from Geoff Giudice

In most cases compassionate leave is readily granted because the employer can be satisfied that the leave relates to the death of a person with the relevant relationship with the employee. In this case a combination of factors, in particular that the death occurred around six weeks earlier and some other conduct issues, led the employer to ask for direct evidence that the leave was related to the bereavement.

In finding that the employer was within its rights to do so, the decision shows that the overall purpose of compassionate leave is important in considering the kind of evidence an employer might reasonably require as a condition of granting the leave.