Disclaimer: The following summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice .
Key words: APS employee—carer's leave—application of agency policy—upheld
An APS employee sought a review by the Merit Protection Commissioner under regulation 5.29 of the Public Service Regulations 1999 of a decision by line management not to approve an application for carer's leave.
The applicant had initially requested a period of three weeks of recreation leave to assist in looking after two children while their parent was in hospital for an operation. The applicant did not have sufficient annual leave credits to cover the three week period and subsequently requested four days of carer's leave.
Prior to the leave, the applicant sought a primary review of the decision as the applicant believed that, based on the special circumstances, carers leave would be appropriate as the mother had in fact already undergone an emergency operation.
The primary review confirmed the decision to reject the application for carer's leave. The applicant submitted an application for secondary review stating that the circumstances meet the criteria outlined in the agency agreement and sought four days of carer's leave and the re-credit of the flex leave taken.
Both the agency agreement and the supporting guidance contain relevant policy. Both outline the circumstances for which carer's leave may be taken. The agreement relevantly provided:
The [agency head] may grant personal leave to enable an employee to absent themselves from their workplace in the following circumstances:
(b) [carer's leave]: to provide care or support for a member of the employee's immediate family or household, or other person, for whom the employee has caring responsibility and who:
(i) is ill or injured and who requires care or support in respect of the illness or injury; and/or
(ii) is unable to attend a medical appointment, or for medical treatment, without the employee's assistance; or
(iii) requires care or support from the employee during an unexpected emergency…
The relevant chapter of the supporting guidance on carer's leave provided:
In accordance with [the agency] agreement, personal leave may be granted to enable an employee to absent themselves from their workplace in the following circumstances:
- to provide care or support for a member of the employee's immediate family or household, or other person the employee has caring responsibility for and who is:
- ill or injured and who requires care or support in respect of the illness or injury; and/or
- unable to attend a medical appointment, or for medical treatment, without the employee's assistance; and/or
- requires care or support from the employee during an unexpected emergency.
It further includes the following statements:
The provision of personal leave for caring purposes will be on a short term and non-enduring basis. It is expected employees will make arrangements, other than through personal leave, for longer term and/or enduring circumstances.
In relation to unexpected emergencies, team leaders/managers will need to assess the particular circumstances of each individual situation and … be satisfied that the situation is the result of an unexpected emergency.
Delegates should consider the circumstances of each application… Personal leave (carer's) will not be granted for the sole purpose of the employee undertaking other activities for someone which do not involve providing attentive assistance or supervision for that person.
While it is recognised that those with an ongoing illness or injury may require assistance with routine day to day living or other personal activities, and it is acknowledged that employees may wish to assist … it is not intended that personal leave (carer's) be granted for this purpose. In such situations, it is more appropriate to apply for alternative leave types such as recreation or flex leave. Where the employee has no recreation or flex leave available, it may be appropriate to grant miscellaneous leave without pay.
The policy also defines immediate family:
Immediate family includes the following members of an employee's family:
- a partner, child, parent, grandparent, grandchild, or sibling of the employee; and
- a child, parent, grandparent, grandchild, or sibling of a partner of the employee.
The applicant's application for annual leave, followed by four days of carer's leave was rejected on the basis that it did not fall within the policy guidelines.
Specifically, the human resources area provided the following comments against the policy:
- yes, the child is a qualified member of the employee's immediate household
- no, the child is not ill or injured
- no, the child is not required to attend medical appointments
- to qualify the unexpected emergency in this case, the request was sent through [a month before the planned leave]. It would be difficult to form a case where this is considered unexpected and not planned.
Notwithstanding that view, the applicant's application for leave was overtaken by the children's parent undergoing an emergency operation earlier than planned.
In the application for primary review, the applicant stated that they had been caring for the two young children as well as attending work after the parent had undergone the operation. The children usually attended family day care during the day; however, the day care mother was unavailable at the time the parent was in hospital which was why leave was needed.
The primary review officer noted:
"Taking into account the policy and guidelines for approving [carer's leave], the children [the applicant is] caring for are definitely considered to be qualified members of [the] immediate household. But neither child is ill or injured nor are they required to attend medical appointments.
Because [the applicant] had requested carer's leave [a month before the planned leave] it would be difficult to form a case that this is an unexpected emergency".
It was also noted that applicant had some 18 hours of flex credits which could be accessed to cover this period of leave and that both the delegate and the primary review officer felt that this would be more appropriate. In addition, the applicant was advised that flexible working hours were able to be negotiated until the parent was able to care for the children.
In the opinion of this office, it was clear that carer's leave policy was intended to cover short term predominantly unplanned circumstances. Where there were ongoing or foreseeable caring needs, other leave was appropriate.
With respect to the three week period of leave, this was sought sometime prior to the leave. On that day the applicant sought to have the last four days as carer's leave, predominantly on the basis (it would seem) that she didn't have sufficient recreation leave credits for the whole three weeks. As the applicant was caring for related children, it was not unreasonable for the applicant to consider accessing carer's leave. However as noted, that is not the circumstance in which carer's leave is granted. Contrary to the view of the applicant it would have made no difference when the leave was sought as this office was satisfied carer's leave was not available.
However as noted, the children's parent had an unplanned emergency operation, in advance of the planned absence. Such a circumstance was not and could not have been foreseen, and if the applicant took leave during the period immediately after the operation, carer's leave for at least some of the period may have been warranted. It seemed, however, that while the children were staying with the applicant, the applicant did not seek leave and continued to work taking the children to day care.
The fact that the applicant may have been entitled in an earlier period to leave which was not taken, does not enable that leave to be substituted for a later period to which the applicant was not entitled. However, if the applicant had taken leave in the period immediately after the operation, the nature of that leave could have been further considered. In all the circumstances, the Merit Protection Commissioner considered that the decision under review should be confirmed.
Lessons Learnt: For an application for leave to be approved it must meet any criteria set out in the agency policies and guidance material. Employees and managers should inform themselves of the different types of leave available before actions and decisions are made.
Office of the Merit Protection Commissioner
Note: Case summary 2010 Review of actions—Refusal to grant compassionate leave provides another example of the application of leave policy.