The Case

The Business Development Manager of Allied Express Transport Pty Ltd (Allied Express) requested a day of compassionate leave due to the death of her grandfather. She then took 3 days’ sick leave.

The Manager then requested another day of compassionate leave to attend her grandfather’s memorial service. She was asked to supply evidence of the upcoming memorial service. The Manager supplied a copy of her grandfather’s death notice (who had died 6 weeks before the memorial service), which did not prove the memorial service was occurring on the date she requested for compassionate leave.

Allied Express informed the Manager she had provided insufficient evidence of the memorial service and that she would need to attend work.

The Manager was asked to attend a meeting in which she was provided with a final warning letter. She had previously been issued with a number of warning letters for conduct and performance issues. After a heated discussion, the Manager was asked to leave the premises for the afternoon, but she never returned to work.

The Manager filed an adverse action claim, claiming Allied Express had effectively terminated her employment because she wanted to exercise a workplace right of taking compassionate leave.

The main issues in dispute were whether:

• the Manager had a workplace right to take compassionate leave on 19 June; and
• Allied Express, by its conduct, dismissed her and if so, whether this was because she proposed to take compassionate leave.

The Verdict

The Federal Circuit Court found that the Manager did not have a workplace right to take compassionate leave as she did not provide Allied Express with the evidence requested, i.e. verification that the memorial service would occur on the specified date. Until that evidence was provided, she had no workplace right to exercise.

The Court also found the Manager’s employment had not been terminated. Rather, she had been given a final warning that provided her with 1 month to improve her conduct and performance. The Manager’s claim was dismissed.

The Lesson

You have a right to request evidence when an employee applies for compassionate leave. Until that evidence is provided, the employee does not have a workplace right.

When taking disciplinary action against an employee, bear in mind the potential for adverse action claims to be made. You should also keep a paper trail recording the reasons for your actions.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.