Carer’s Leave – What exactly amounts to an Emergency?

The National Employment Standards allow an employee to take paid personal/carer’s leave if the leave is taken “to provide care or support to a member of the employee’s immediate family… because of… an unexpected emergency affecting the member.”

The case of Klowss v Groote Eylandt Mining Company Pty Ltd (C 2013/1515), which was delivered verbally on 24 October 2013, potentially expands the scope of circumstances in which carer’s leave can be claimed on the basis of “emergency”.

The employee, Lynda Klowss, lived in Cairns and was employed as a FIFO worker with Groote Eylandt Mining Company Pty Ltd.  She worked a seven-days-on, seven-days-off shift, which coincided with her husband’s shifts with the same employer.

Mrs Klowss had an arrangement with her parents where they looked after her 14 year old son while she worked away.  On this occasion, her parents were unavailable, so she arranged a babysitter.

Four days before her shift was due to start, the babysitter experienced a family emergency and had to leave Cairns at short notice, leaving  Mrs Klowss unable to find a replacement.  Accordingly, she informed her employer that she would be unable to attend her shift.

Mrs Klowss was not criticised for missing her shift, but an issue arose over whether it should be treated as carer’s leave or annual leave.

Vice President Lawler was “satisfied on the evidence… that the unavailability of the babysitter due to the family emergency… did amount to an unexpected emergency affecting the son of the applicant and accordingly… the applicant was entitled to carer’s leave.”

The Vice President focused on whether Mrs Klowss responded reasonably to an unexpected situation. It was accepted that a 14 year old boy could not be left alone for seven days and it was also accepted (despite suggestions by her employer to the contrary) that Mrs Klowss had no other options available to her.

Employers should therefore be aware that an “emergency” does not necessarily require the sort of catastrophic circumstances that one might ordinarily associate with that term.

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