Can an employer deny compassionate leave?

HRD uncovers the truth behind the jargon

Can an employer deny compassionate leave?

Under Australia’s Fair Work Act, there are various types of leave to allow employees time away from the workplace when they need it. During the pandemic, the importance of this statutory framework of support has been vital for employers and their staff. COVID-19 has caused thousands of people to take compassionate leave, whether due to the death of a loved one or from catching the virus themselves.

It's vital for both HR leaders and employees to know where the Fair Work Act stands on leave allowance, making sure workers’ rights are respected and businesses don’t find themselves on wrong side of the law.

What qualifies for compassionate leave?

Compassionate leave, otherwise known as bereavement leave, can be used by employees in the event of a death, or serious illness or injury, of their immediate family or household. The Fair Work Act defines immediate family as:

  • spouse or former spouse
  • de facto partner or former de facto partner
  • child (including stepchild or adopted child)
  • parent
  • grandparent
  • grandchild
  • sibling, or a
  • child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner)

The list could include extended family members like cousins or aunts if they’re in the employee’s household, or if the employer agrees. Best practice would see employers being accommodating to compassionate leave requests where possible, understanding that in some cultures extended family members share close bonds. Compassionate leave can also be taken by employees who experience a miscarriage after the federal government voted to update the Fair Work Act earlier this month. Both women and their partners who experience miscarriage before 20 weeks will be entitled to up to two days of compassionate leave.

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How long is compassionate leave?

Full-time and part-time employees can request up to two days compassionate leave, while casual workers are entitled to up to two days unpaid leave. The days can be taken separately or together. It does not accumulate in the way sick leave allowance does, and there is no maximum amount per year, so it is available to employees whenever a relative dies or falls sick.

While the law requires employees to be given up to two days, leading employers may go above and beyond to support their workers in times of need. This could include extended leave or allowing an employee to work flexibly until they’re able to return full time.

Organisations that take a flexible and empathetic attitude to leave will almost always win the respect of their employees. After all, the pandemic has shown HR leaders that work is no longer confined to the office. It is in our homes and among our families, so taking a human approach will always serve employers in the longrun.

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Can an employer refuse compassionate leave?

No, if the request is legitimate the employer cannot legally refuse compassionate leave. An employer is allowed to ask for proof, such as a death or funeral notice, and if the employee fails to provide that proof, the employer can deny the request for compassionate leave.

Employers should include a clause in the company policy about how to give notice of compassionate leave, for example that the request has to be made over the phone or in an email.

Does an employee have to give notice?

Yes, an employee should request compassionate leave as soon as possible, which could include after they have begun taking it. They should set out their reason for requesting leave and how long they intend to use.

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