Is visiting sick grandma compassionate leave?

Is visiting sick grandma compassionate leave?

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By Paul Munro on 17 May 2018 Is an employee entitled to compassionate leave if she travels interstate to visit her sick grandmother? 

This question was recently sent to our Ask an Expert service.

Q We have an employee who some months ago visited her terminally ill grandmother on two separate occasions after being advised by the family doctor that her grandmother needed family support. Her grandmother lives in Perth while the employee lives in Melbourne. The grandmother has unfortunately passed away and will be attending her funeral next week.

The employee took two days’ annual leave when she visited her grandmother earlier in the year however she is now claiming an entitlement to two days compassionate leave for the time when visiting her grandmother and another two days compassionate leave for attending the funeral.

While the company understands that compassionate leave is to allow an employee to attend the funeral of an immediate family member or member of the employee’s household, we do not consider her earlier visit to see her grandmother as  covered under compassionate leave. The legislation refers to an entitlement for each ‘permissible occasion’ and we are unclear as to what this term means.

Would this circumstance constitute a ‘permissible occasion’ for the purpose of an entitlement to compassionate leave?

A The Fair Work Act (s.105(1)) provides that an employee may take compassionate leave for a permissible occasion if the leave is taken to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury.

The definition of ‘immediate family” in the Act includes a grandparent. If the permissible occasion for taking compassionate leave is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave entitlement for that occasion at any time while the illness or injury persists.

This means that provided the notice and evidence requirements under the Fair Work Act have been met, the employee would have an entitlement to a total of 2 days compassionate leave over the course of the two visits to Perth because the grandmother had a terminal illness before passing away. 

The leave may be taken as a single day, continuous period of 2 days, or two separate periods of one day each, or any separate periods agreed between the employer and employee. This means compassionate leave is not necessarily related only to the death of an employee’s immediate family member or member of the employee’s household.

The employee would also be entitled to a further 2 days compassionate leave to attend her grandmother’s funeral.

Immediate family


‘Immediate family member’ means a spouse, de facto partner, parent, child, sibling, grandparent or grandchild of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

"De facto partner" means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether same sex or different sexes), and includes a former de facto partner of the employee.

Rate of pay


The Fair Work Act (s106) provides that an employee is to be paid at the base rate of pay for the ordinary hours of work during a period of compassionate leave. 'Base rate of pay' means the employee's ordinary rate of pay, excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts.

Notice & evidence requirements


The Fair Work Act (s.107) requires an employee to give his or her employer notice of the taking of paid compassionate leave. The notice must be given as soon as practicable (which may be a time after the leave has commenced) and must identify the period, or expected period, of the leave. In this case, the employee could produce a copy of the letter from the family doctor stating the employee was required to give family support to her grandmother.

The bottom line: Compassionate leave is available to an eligible employee when required leave is taken to spend time with a member of the employee’s immediate family or household who has contracted a personal illness or sustained a personal injury.
 

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COMMENTS

  1. Jim W:
    Eliska D is correct. There must be a personal injury or illness that poses a "serious threat". See s104 and 105 of the Fair Work Act 2009 Section 104 - entitlement to compassionate leave http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s104.htmlSection 105 - taking compassionate leave - http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s104.html

    Report abuse 162days ago
  2. Eliska D:
    For clarity, the illness or injury needs to pose a serious threat to the life of the family or household member.

    Report abuse 180days ago

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