In a recent decision the Fair Work Commission has determined that a period claimed by a public service employee who accompanied his father in travelling to India did not qualify as carer’s leave.
The Facts
The employee was an employee of the Department of Health in Victoria.
He requested a period of 6 weeks as carer’s leave to take his father, who had been diagnosed with Parkinson’s disease, for treatment by a neurologist in India.
The request was declined by the Department in an email which stated:
“… based on our discussion and the information provided, it appears that only one specialist appointment occurred during this period for which you have not provided evidence, and the remainder being physiotherapy appointments…”
The employee applied to the Fair Work Commission to resolve the dispute, which was not resolved in conciliation and was referred to arbitration by the Fair Work Commission.
In the arbitration hearing the employee said his father needed his daily care and support for the entire duration of the trip due to the deterioration in his condition.
The Decision
In refusing the employee’s application the Commissioner found that:
- It was not in dispute that his father had a diagnosed illness, which had been progressing with a more recent deterioration in his physical and mental condition.
- However the relevant inquiry was whether the employee’s absence was “because of” his father’s illness.
- There was no evidence that, before or after the travel to India, his father required carer’s leave for an extended period.
- There was also no evidence that his father had no reasonable alternative treatment options in Australia. In particular there were no medical certificates or reports by the neurologist in India that shed any light on why an in-person consult was necessary or that one even took place.
- The employee’s absence was not because of his father’s illness or injury, but because of the family’s decision to travel overseas for treatment when neurological specialists and physiotherapists could be found in Melbourne where the employee resided.
Implications
The case is a reminder that:
- The criteria of the National Employment Standards or an applicable enterprise agreement must be met before an entitlement to personal/carer’s leave arises.
- Employers are entitled to require evidence for a personal/carer’s leave request, as specified by the NES or an enterprise bargaining agreement, before allowing the request.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.