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—compassionate leave—agency provisions—leave should be granted
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 grant a period of compassionate leave.
In or about August, the applicant applied for and was granted a period of long service leave (LSL) for a week in August. This leave was taken following a relative (the relative) being diagnosed with a serious illness which led to their hospitalisation.
In September, the relative was diagnosed with additional health issues. The relative subsequently had an accident, their health deteriorated and the relative passed away. The applicant applied for, and was granted, two days compassionate leave.
The applicant subsequently sought to change the earlier period of leave from LSL to a combination of compassionate leave and recreation leave. The agency refused the application, essentially on the basis that the two incidents (i.e. the hospitalisation in August and the subsequent accident and death of the relative in September) were connected. As such, as there had been a grant of compassionate leave in September, further compassionate leave was not available.
The applicant sought a review of this decision. Upon review, the agency confirmed the decision, but did not determine whether the two periods were connected. This was because the delegate concluded that the reasons for the applicant's leave in August did not meet the relevant criteria for compassionate leave.
The applicant subsequently applied for review of the delegate's decision and sought compassionate leave for two separate periods.
The agency agreement dealt with compassionate leave and stated:
Clause 1 The agency head will grant up to two days of paid compassionate leave on each occasion where a member of the employee's immediate family or household;
- (a) contracts or develops an illness; or
- (b) sustains an injury;
- that poses a serious threat to his or her life, for the purpose of spending time with that person.
Clause 2 Compassionate leave for an occasion may be taken as a single two-day period or broken periods totalling two days.
Clause 3 Team leaders/managers may request evidence, which is reasonably required, of the illness or injury to support an application for compassionate leave.
These requirements were also reiterated in supporting guidance, which provided further detail relevant to granting leave. It defined the people who came within the provision, further stated the above clauses, and then stated:
The delegate must be satisfied that the particular circumstances meet the criteria to grant compassionate leave. Compassionate leave will not be granted where the illness/injury does not pose a serious threat to the person's life. In these situations, it may be appropriate to consider other types of leave depending on the circumstances, such as flex, recreation or personal leave.
In the application for review the applicant stated a belief that '[I was] entitled to compassionate leave and there was an incorrect application and interpretation of the leave entitlement'.
In coming to a conclusion the primary review delegate stated that personal leave was the applicable leave for the August period. Having considered the agreement clauses on both compassionate leave and personal leave the delegate said:
'It is reasonable to conclude … that the intention of personal leave (carer's) is to enable an employee to provide care and support to an immediate family or household member, including where that person is ill and/or needs to attend medical appointments.
It is also reasonable to conclude that compassionate leave is quite different. The intention here is to enable an employee to spend time with a family member or household member, where the medical prognosis is extremely serious and includes a strong likelihood that the person's death may be imminent. This provision specifically focuses on spending time where there is a serious threat to life'.
It was clear from the extract from the supporting guidance cited above that unless the leave met the criteria, compassionate leave would not be granted. It followed that where it did meet the criteria, the leave would be granted, and clauses (1)–(3) above said as much.
The primary review decision interpreted the criteria to involve 'a strong likelihood that death may be imminent'. In the opinion of the Merit Protection Commissioner, it was possible to interpret the phrase 'a serious threat to his or her life' in that way, and the short period of the leave would be consistent with such an interpretation.
However, the relevant guidelines made no mention of the concept of imminence. Rather, they repeated the requirement in clause 1 above that there be a serious threat to the person's life. While the word 'threat' suggested some level of immediacy, if imminent death had been the immediacy intended it was reasonable to expect the clause or supporting material would have said so.
On the material provided to this office, it appeared that the applicant's relative was suffering from a terminal illness and that the applicant took time off to be with them. The only material on file suggested the prognosis was anywhere up to a year or more, and the applicant told this office the doctors kept 'revising down how much time [the relative] had left'. In all the circumstances this office was satisfied that on balance the applicant's August leave met the criteria for compassionate leave and therefore should have been granted.
The issue then became whether a further period of compassionate leave could be granted in September.
Clause 1 above contemplated more than one period of leave in that it referred to 'each occasion'. That must be interpreted as each occasion there is a serious threat to life, and could therefore be with respect to the same family member.
An ongoing threat, such as the progression of a diagnosed terminal illness, would not, in the opinion of this office, satisfy the clause. However a major change to that prognosis might in the relevant circumstances be sufficient to be an 'occasion'. The circumstances would be all important.
Here, the applicant had said that there was a diagnosis of some additional health problems, but then an accident occurred that led to the relative's death shortly after. The applicant had characterised the accident as a 'second event', which amounted to a separate occasion for the purposes of clause 1 above.
The primary review decision said that compassionate leave was appropriate for the latter 'event'. The delegate said 'the reason for this is that the [accident] was of an extremely serious nature, was life threatening, and did result in the imminent death of your [relative]'.
The circumstances of the accident were not clear, but it appeared that an accident which threatened life could reasonably be seen as an 'occasion' separate to the diagnosis and progression of a life threatening illness. While the occasions were close in time, that in itself did not prevent them being separate. On balance, in the opinion of the Merit Protection Commissioner compassionate leave was available for each of those occasions.
In all the circumstances the Merit Protection Commissioner recommended that compassionate leave be granted for each of the occasions.
Lessons learnt: staff and management have a responsibility to inform themselves of the circumstances in which different types of leave can be granted before action and decisions are made. Care must be taken in applying the provisions to particular individual circumstances.
Office of the Merit Protection Commissioner
Note: Case summary 2010 Review of actions—Refusal to grant carer's leave provides another example of the application of leave policy.
 Fictitious timing has been used to assist in the interpretation of the case.