Why you need to be careful with carer’s leave

carer’s leave
Girard Dorney


written on February 6, 2017

Managing carer’s leave can be tricky, for both the employer and the employee. And sometimes simply meeting your obligations under the law isn’t enough.

Two months into a new job, my girlfriend’s grandmother had a heart attack. Eighty-six and living in rural NSW, we were genuinely concerned about her but travelling there and back, and spending real time at her bedside, was not going to be easily jammed into a weekend – there are no late night flights to the NSW countryside. I was considering taking a day off work but I didn’t know what my rights were. Would I get paid leave or unpaid? What type of leave would it count as: carer’s, compassionate or annual? Is my relationship such that I am covered or is that only for people who are married?

At my worst, I got bitter just imagining how far I’d I have to go to justify doing the right thing. Would I need to ask the overworked rural doctor for a medical certificate to prove to my employers that this precious woman only had so many days left?

Dealing with employees who need to take carer’s leave can be difficult. Chances are the experience they’re going through is awful, and looms much larger in their mind than any obligation to their employer. On this issue the law is relatively simple but human relationships aren’t. Sometimes you could follow the letter of the legislation but forever alienate a staff member.

When is carer’s leave a legal right?

Under the Fair Work Act the minimum entitlement under the law for each employee is 10 days personal/carer’s leave. Carer’s leave is defined as leave taken to:

“provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

         (i)  a personal illness, or personal injury, affecting the member; or

         (ii)  an unexpected emergency affecting the member.”

And who qualifies as the employee’s immediate family or a member of their household?

“(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee;


(b)  a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.”

On top of the 10 days combined personal/carer’s leave employees are entitled to:

  1. Two days of compassionate leave (leave that takes place around the death of a family or household member, or because of a life-threatening illness or injury to a family or household member)
  2. Two days of unpaid carer’s leave (if paid leave has been used) for each occasion a member of the family or household has a personal illness, injury or an unexpected emergency.


In terms of the type of proof you can expect from an employee, the Fair Work Ombudsman’s website says: “Medical certificates or statutory declarations are examples of acceptable forms of evidence. While there are no strict rules on what type of evidence needs to be given, the evidence has to convince a reasonable person that the employee was genuinely entitled to carer’s leave.”

De facto or not?

The law looks at several factors when determining whether a relationship is de facto but major deciders include whether or not you’ve been co-living for a duration of two years or more, and whether you’ve had a child.

So what should you do if an employee asks for leave because someone in their partner’s immediate family is sick, but you believe the relationship is quite new?

Technically you have the right to suggest they take it out of their annual leave (if they have any left) but should you? Each situation is different but sensitivity is a must. It’s legal and appropriate to ask for evidence, both for the de facto relationship and for the need for leave, but doing so in a kind and understanding manner will go a long way to making the employee feel you’re being reasonable.

Whether you handle the situation well or poorly, the employee will remember. And they will tell others. These are the kind of things people talk about when they mention the importance of your company’s reputation.

Is carer’s leave likely to be exploited?

According to this Carer’s Australia guideline for employers (which is concerned with long-term carer roles) having a comprehensive strategy is smart business, because there are more people who need it than you might think. An ironed out carer’s plan that includes policies for both flexible leave and flexible working arrangements can lead to:

  • increased productivity and workforce resiliency;
  • decreased employee stress, absenteeism and turnover;
  • and makes you more attractive to quality recruits.

What’s more, they found that “Special leave entitlements are rarely abused by carers. Workplaces which have made special leave allowances available have rarely found instances where this leave has been abused.”

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