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Carer’s leave – what is an unexpected emergency?

Are employees entitled to paid leave if they need to leave unexpectedly?
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Carer’s leave – what is an unexpected emergency?

Carer’s leave – what is an unexpected emergency?

26 March 2021

Are employees entitled to paid leave if they unexpectedly have to leave work to collect a child from school?

Life doesn't always go to plan and one day you may need to leave work for an 'unexpected emergency'. But what exactly is an unexpected emergency for the purpose of leave entitlements?

Consider this example. An employee has a longstanding arrangement whereby a friend collects his son from school. Yesterday, the friend was unable to collect the child and rang the employee at work to tell him. The employee was unable to make alternative arrangements and left work two hours before his normal finishing time.

The employee claims he is entitled to two hours of paid carer's leave due to an 'unexpected emergency'. The employer, on the other hand, thinks an ‘unexpected emergency’ in the Fair Work Act relates to a medical emergency where an employee needs to provide ‘care or support’ to a member of their immediate family.

Who is right? Is the employee entitled to paid carer’s leave under the National Employment Standards (NES)?
The answer is 'yes'. As the employee left the workplace because of his responsibilities as a parent a court would likely consider this circumstance as an unexpected emergency. Consequently, he would be entitled to paid carer’s leave.

The meaning of “emergency” in the dictionary is “a sudden state of danger, conflict, etc., requiring immediate action, a medical condition requiring immediate action”. The carer’s leave requirement within the NES provides for “care or support”, hence there are alternatives. Further, such leave is not tied to the incidence of illness but can apply to an illness or an injury or to an emergency situation affecting the family or household member.

This means an employee may elect to use personal/carer’s leave to provide “support” to a family or household member affected by an emergency situation. That is, without reference to illness and injury. Thus, while an unexpected emergency includes a medical emergency, the term also applies to non-medical emergencies.
This exact circumstance was considered by the Federal Circuit Court which determined that an employee's need to collect her child from primary school, because a friend could not pick up the child as usually arranged, was an ‘unexpected emergency’ for the purposes of paid personal/carer’s leave. See Wilkie v National Storage Operations Pty Ltd.

Unpaid carer's leave

The amount of accrued paid carer’s leave that can be taken each year is not capped, subject to an employee’s accrued balance of leave at the time. An employee who has exhausted their accrued personal/carer’s leave may access up to two days’ unpaid carer’s leave. An employee must use all of their accrued paid personal/carer’s leave before accessing unpaid carer’s leave.

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