Can an employee use their Personal leave whilst on parental leave?

[Snooze]

A male employee whose partner will be having a pre-arranged ceasarian surgery wants to use his personal leave during his period of parental leave, as he will be caring for the partner during recovery. Company has advised that he cannot use personal leave, and that he must use annual leave if he wishes to be paid.

Assuming documentary evidence is a medical certificate. For purposes of entitlement would you consider this to be is a "personal illness or personal injury" of the immediate family member?

If yes, then I dont see why the employer should not allow him to use this personal leave entitlement.

Does anyone see otherwise or have any other thoughts on this scenario?

[Qld IR Consultant]

snooze, I wouldn't see it as an injury or illness, but for the sake of the situation it would be more towards illness. Can I ask why the company has taken the stance of not allowing him to use personal leave? I assume that he has sufficient leave accrued to cover the time? I can understand the thought that personal/sick leave has historically always been for the worker to access when they themselves require it, but this is the 21st century and it is now the norm for employees to access it at times such as this. By the tone of your post though it sounds like the company has to a point advised the employee that if he takes personal leave then he won't be paid, am i reading it right? If this is the case I would suggest the company would have more serious issues than just an employee taking personal leave to care for his wife and new born baby.

My advice would be too have further discussion with the employee and come to a amicable arrangements. At least this retains, what I assume, is a competent productive employee, plus allows the company to plan labour to cover the role.

Sometimes its a balancing act that can save you a lot of heartache in the long term.

[Snooze]

Thanks Qld IR Consultant. If the employee takes personal leave they will be paid, that is the purpose of accessing the leave as the employee doesnt qualify for company paid parental leave. They do have suficient leave to cover the period.

But the company doesnt allow this when its being used for parental leave as they dont see it as an injury or illness. I have had a discussion with the employee and discussed options with him, so as yet the company hasnt advised him that he cant use personal leave, however I have had this situation come up previously so I expect the same outcome.

Personally, I would not have any issue in the employee using his personal leave but its not up to me, im just the devils advocate in this situation.

[Moz]

Reading between the lines here, there seems to be some discrimination between an emergency ceasar birth and pre-arranged ceasarian surgery. The fact that is not an emergency does not mean it is not necessary.

My wife had an emergency ceasar when our first child was born and she had pre-arranged ceasarian surgery when our second child was born, on the advice of an obstetrician due to the complications (and subsequent threat to life) encountered during the fist birth.

I would be surprised if the Personal/Carer's leave in the NES was not intended to be used in such circumstances. Otherwise Personal/Carer's leave would not be able to be used in any circumstances where someone needed to care for their spouse or their child who was recovering from surgery which was not an emergency.

Ultimately we need to know what Fairwork Australia means by "sick". Does sick mean an illness or does it mean unfit for work?

Apart from the legal argument here, I think you also have to consider the message you send to your employees by denying them use of paid personal/carer’s leave in such circumstances.

Let's face it, your employees could go to the doctor with a heavy cold and get a medical certificate for at least a couple of days.

[Snooze]

So does anyone know what the FW Act definition is of "injury or illness"?

I couldnt find anything in the definitions section, wondering if it the intent might be detailed in the explanatory notes. Qld IR Consultant do you know?

If it looks like there is strong view that personal leave should be allowed in this situation, I feel its my obligation to raise it with our ER manager. I work for a national company with a oversighting corporate HR & IR division, unfortunately a person of my position wouldnt even get a look in with something like this :-(

[Moz]

So does anyone know what the FW Act definition is of "injury or illness"?

Unfortunately our Government didn't put enough effort into definitions when they created the FWA and the NES, although this may have been a conscious decision

I don't think the NES refers to "illness" in the personal leave provisions, just "sick", "injured" and "unexpected emergency".

My personal view is that the last two are reasonably unambiguous, but "sick" could mean anything. In fact in modern slang, it can even mean "really good"!

But if we just stick to the traditional meaning, the reason why one is "sick" could vary considerably.

Just to put this issue into perspective, an employee's spouse could be sick because they drank too much alcohol the night before.

So someone could presumably phone their employer and say I'm taking a day of personal leave to care for my spouse who is sick. If questioned about the nature of the sickness (and I am not even sure that would be legal), the employee could say their spouse has a really bad head ache and is vomiting and can't get out of bed.

As an employer it would be hard to argue against that.

With regard to the case in question (ceasarian section), one could argue that Personal/Carer's Leave is actually more appropriate that Parental Leave, because while the father is likely to be caring for his new born child, a very large part of reason he is taking the leave is the care for his spouse who has just had major surgery and will be able to do very little for herself several weeks.

[Snooze]

Sorry Moz im not trying to tell you how to suck eggs, but im pretty sure the NES doesnt mention the word "sick" probably for that particular reason
Section 97 (a) not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b)To provide care or support....because of: i) a personal illness, or personal injury affecting the member

[Moz]

Snooze, I don't profess to be any expert in this stuff, I don't work in IR and I didn't have time to trawl through the Act. I was simply going on what most employees would look at, which is this; Personal, carer's and compassionate leave - Leave - Fair Work Ombudsman

which says;
"When: when the employee is sick or injured or when the employee needs to care for an immediate family or household member who's sick, injured or has an unexpected emergency. "



At the end of the day, if the employee makes a complaint, it's Fairwork Australia's interpretation of the Act that matters. This area of law is far from black and white, as numerous employers have already found out to their cost.

Snooze, if you are male, you could just call Fairwork Australia and ask the question, as if you are the person wanting to take the personal leave.

If you tell them you are the employer they won't help you! (at least they wouldn't when I have tried in the past).

[Snooze]

Ah ok fair enough :-)

I am not male, but I can use the live chat service!
Ill let you now how it goes!

[HeyPete]

Hi snooze

While I am not an IR expert, I have taken courses about this issue through WA’s Chamber of Commerce and Industry.

This example was raised on a few occasions, and by their experience in Industrial Relations, the male employee would ABSOLUTELY be entitled to personal / carers leave through the FWA’s NES.

I would be advising your employer of the risks involved, namely Contravention of the FWA (Sec 44(1)), possibly penalty for the Corporation $33,000 through the Federal Court or Federal Magistrates Court.

[Snooze]

Hi All

According to Fair Work live chat advise, this is the response:

The FW Act does not exclude paid personal/carer’s leave being taken while on paid parental leave. The method of interaction between other types of paid leave such as personal leave and annual leave suggests that an employee can take a period of paid personal leave whilst on paid parental leave.

However, in relation to a period of unpaid parental leave, section 79(2) of the FW Act specifies that an employee is not entitled to paid personal/carer’s leave whilst on unpaid parental leave

Parental leave under the NES is unpaid. Therefore our view that is the parental leave entitlement comes from the NES the employee can either be on parental leave or personal leave and not both. This is specifically stated in the Fair Work Act 2009 - section 79(2).

[HeyPete]

Snoooze... appologies but I didn't clearly read the bit in your initial question about taking personal leave 'while on parental leave' ... and by the looks of the other replies, neither did anybody else.

big difference

[Snooze]

I thought made it pretty clear by saying "wants to use his personal leave during his period of parental leave"

Not to worry

[Moz]

Hey Snooze, thanks for letting us know what the FWA said

I thought made it pretty clear by saying "wants to use his personal leave during his period of parental leave"

I didn't really understand that anyway. How can you be on two types of leave simultaneously?

Surely if you went on personal/carer's leave while on paid parental leave, the former replaces the latter.

Given the FWA response, the solution for the employee is easy. He simply applies for personal (carers) leave, and retracts any application for unpaid parental leave

[Snooze]

Surely if you went on personal/carer's leave while on paid parental leave, the former replaces the latter.

Moz, employee was not taking "paid" personal leave, it is unpaid, hence the reason for wanting to get paid through entitlements

I think this has all just been a big confusion. Apologies if I wasnt clear enough. Thanks everyone for the input.

As you said, the solution is simple and thats what ill be doing.