No automatic right to paid compassionate leave

The Federal Circuit Court has recently determined that an employee did not have an automatic entitlement to paid further compassionate leave, in circumstances where she refused to produce adequate evidence relating to her further leave request.

In brief, the employee’s grandfather passed away, and the employee took compassionate leave on the day he died. Then 6 weeks’ later the employee requested to take compassionate leave so as to attend her grandfather’s memorial service.

This was a relatively late application on the Monday of the week of the memorial service. Following making the application the employee then immediately advised of illness and took sick leave for the next three days.  The Employee was subsequently told by her manager that the death notice that she had produced as evidence for the leave was insufficient as it did not set out the date of the service.

The day before the service, the employee was contacted by her manager who informed her that she was required to attend work at 8am the following day.

The employee attended work on the Friday, the day of the service, and in a morning meeting the employee’s manager gave the employee a final warning letter relating to her performance, including an allegation that the employee had lied to her manager. The employer asked the employee to counter sign the warning letter but she refused, and there was then a dispute about the contents of the warning letter.  The employee was told to leave the premises to attend the service, but to return that afternoon.  The employee relied on that direction to leave as a termination of her employment by the employer.

Relevant to the adverse action claim then taken by the employee, the employee claimed that employer terminated her employment because she proposed to take compassionate leave.

In dismissing the claim, Judge Smith held that the employee had not established that she had exercised a workplace right because she did not provide the necessary evidence to establish her entitlement to compassionate leave. Judge Smith, who also found that the employer had not established that she had actually been dismissed, stated:

 “… the applicant in this case was required to give [the employer] evidence that the leave … was for her grandfather’s death but she did not do so. In those circumstances she was not entitled to take compassionate leave on 19 June 2015 and did not have a workplace right on that day.”

In explaining this finding Judge Smith made the point that compassionate leave is leave related to a relevant person’s death, inferring that an event ancillary to the death, such as a memorial service, will not of itself trigger an automatic right to compassionate leave.

An Employer needs to assess each individual circumstance reasonably and on its merits.