Employment law update – evidence requirements for an employee’s compassionate leave and personal liability of a Human Resources manager for Fair Work Act contraventions

Compassionate leave evidence requirements

Under the National Employment Standards, employees are entitled to 2 days of paid compassionate leave for each occasion when a member of the employee’s immediate family/household dies.  Compassionate leave is also available where a member of the employee’s immediate family/household contracts or develops a life-threatening illness, or suffers a life-threatening injury.

The employee must comply with the Fair Work Act’s relevant notice and evidence requirements.  If requested to do so, the employee must produce evidence to the employer, that would satisfy a reasonable person that the leave is taken by reason of, or as a consequence of, the death.

An employee who does not comply with these notice and evidence requirements is not entitled to take compassionate leave.

In Morris v Allied Express Transport Pty Ltd, a Federal Circuit Court decision (5 July 2016), an employee of Allied Express Transport took 1 day of compassionate leave on the day her grandfather died.  6 weeks later, she requested a further day of compassionate leave to attend a memorial service for her late grandfather and provided the newspaper death notice as evidence for her request.  The employer considered the death notice was insufficient evidence for the second day of compassionate leave.

Following an angry meeting between managers of the employer and the employee, the employee contended that she had been dismissed because she exercised a workplace right by seeking to take compassionate leave.  Employers are prohibited from taking adverse action against employees for exercising workplace rights.

The Court found that the employee did not provide evidence that the intended compassionate leave was by reason of her grandfather’s death.  She was therefore not entitled to take compassionate leave and so did not have a workplace right on that day.  The newspaper death notice provided by the employee was insufficient evidence for taking compassionate leave for a memorial service 6 weeks later.

What is sufficient evidence to satisfy “a reasonable person” will vary according to the circumstances.  The Court noted that for example, “very slight evidence may be required for leave taken on the day of the family member’s death, particularly if the employee was especially close to the family member.”

Depending on the circumstances, employers may consider requesting an employee to provide a death certificate, funeral notice or to provide a statutory declaration.  In this case, something which indicated the date of the memorial service was likely to have been sufficient.

Personal liability for contraventions of the Fair Work Act can extend to Human Resources managers

In Fair Work Ombudsman v Oz Staff Career Services, a Federal Circuit Court decision (12 February 2016), Oz Staff admitted to certain contraventions of the Fair Work Act, including unlawful deductions from the wages of staff.  Its CEO admitted to being involved in each of those contraventions.

The Fair Work Ombudsman also brought proceedings against Oz Staff’s Human Resources Co-ordinator, who was also a member of the company’s “leadership team”, for being involved in the company’s contraventions.

The Human Resources Co-ordinator admitted that he knew about the company’s practices and processes for payment of wages to employees.  The Court found that it was probable he was well aware of the contraventions of the company in relation to the administration fee and meal deductions and he knew that the deductions were not lawful.   His state of knowledge as the Human Resources Co-ordinator was sufficient to constitute “involvement” within the meaning of the Fair Work Act.

The Court found that where a person knows of the contravention, but takes no steps to correct it, is a person who is knowingly concerned in, or party to the contravention.

A penalty hearing in respect of the Human Resources Co-ordinator, the CEO and the company will be held at a later date.

How we can help

Andrew Thorpe, Partner and Samantha Peterson, Special Counsel have extensive litigation experience acting for employers and employees, including in relation to Fair Work Ombudsman investigations into possible breaches of the Fair Work Act.

McLachlan Thorpe Partners can also help employers by reviewing standard employment contracts and policies, to ensure compliance with the Fair Work Act and addressing matters such as evidentiary requirements for employees taking compassionate leave.

Samantha Peterson

Special Counsel



McLachlan Thorpe communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.

From 23 November 2023, the legal practice of Church & Grace will be incorporated as part of McLachlan Thorpe Partners. Both Church & Grace and McLachlan Thorpe Partners are committed to ensuring a smooth transition and maintaining the high standards of service and relationship you have come to expect from both firms. Click here for more information.