A recent decision of the Federal Circuit Court has dismissed a sales manager's adverse action claim after it found she had not exercised a workplace right to take compassionate leave.

When an employee loses a relative, a spouse or a close friend, it is a difficult time for all involved. In such circumstances, it is the employer's role to balance the operational needs of the business with the employee's personal needs and statutory entitlements.

Under section 104 of the Fair Work Act 2009 (Cth), an employee is entitled to take up to two days compassionate leave for each occasion an immediate family or a member of the employee's household dies or contracts a life-threatening illness or injury. An "immediate family member" for the purposes of the Fair Work Act includes a spouse or de facto partner, child, parent, grandparent, grandchild or a sibling.

Some employees assume that when someone dies, or is seriously ill or injured, any absence associated with that unfortunate event will constitute compassionate leave, and that if paid leave is not provided, the employer will be in breach of its statutory obligations. However, as was most recently demonstrated in the decision of Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, that is not always the case.

Denial of compassionate leave

Ms Morris, the former Business Development Manager of Allied Express Transport Pty Ltd, requested one day of compassionate leave following the death of her grandfather. This was followed by three continuous days of sick leave. Ms Morris subsequently submitted another request for compassionate leave to attend her grandfather's memorial service. This request was accompanied by a death notice.

On 18 June 2015, the day prior to the scheduled memorial service, Ms Morris was informed by her Manager that she would be required to attend work on the basis that she had provided insufficient evidence of the memorial service.

On 19 June 2015, upon returning to the workplace, Ms Morris attended a meeting with senior executives during which she was provided with a final warning letter. While Ms Morris was initially successful in her role, the employer claimed Ms Morris' performance had substantially declined since early 2014, to such an extent that senior management became concerned by Ms Morris' poor performance and lack of improvement. It was these circumstances that gave rise to the issuing of a number of formal warning letters prior to issuing a final warning letter which addressed both performance and behavioural issues.

Following a verbal altercation between Ms Morris and senior executives, during which Ms Morris acted in a "defensive and aggressive manner", Ms Morris was requested to leave the premises for the afternoon. After this Ms Morris never returned to work, despite being directed by Allied to do so.

Application for adverse action

Ms Morris commenced proceedings in the Federal Circuit Court alleging that her employer was in breach of section 340 of the FW Act because it had effectively terminated her employment during the meeting on 19 June 2015 when she proposed to exercise a workplace right to take compassionate leave.

Two of the primary issues in dispute between the parties were:

  • whether Ms Morris had a workplace right to take compassionate leave on 19 June 2015; and
  • if Allied's conduct during the meeting did amount to dismissal, whether the dismissal was because Ms Morris proposed to take compassionate leave.

Was the employee exercising a workplace right to take compassionate leave?

Judge Smith ultimately found in favour of Allied, concluding that Ms Morris did not have a workplace right on the day of her grandfather's memorial service and on that basis, even if she was dismissed by Allied, it was not as a consequence of exercising a workplace right. As stated by Judge Smith:

"If evidence is required by the employer, there is no automatic right to [compassionate leave] for any reason at all. The leave has to be for the death. The Applicant was required to give Allied evidence that the leave on 19 June 2015 was for her grandfather's death, but she did not so. In those circumstances, she was not entitled to take compassionate leave and did not have a workplace right on that day".

While Judge Smith accepted that section 104 of the Fair Work Act confers an entitlement to compassionate leave, it was ultimately concluded that the right can, where required, be subject to provision of evidence to the employer. It was also determined that Ms Morris had not been dismissed, as she had only been directed to leave the premises after her response to the final warning letter. In that letter she was given a timeframe of one month to address the issues raised. It contemplated her ongoing employment.

Accordingly, Ms Morris' claim was dismissed.

Adverse action: An employer's perspective

The risk of adverse action is something which should always be taken into consideration by an employer. As such, when determining if certain steps should be taken against an employee employers should ask themselves, "could this be adverse action?".

That being said, employers should feel somewhat emboldened by this decision (and others like it), and should not view the possibility of adverse action as an insuperable barrier or handbrake to taking decisive steps, where appropriate. Each case will be decided by the courts on its own facts. As illustrated by this case, certain requirements need to be satisfied before there is a finding of adverse action.

Further, just because there is a close temporal connection between the assertion of a workplace right and disciplinary action, does not necessarily mean that action will constitute adverse action.