When Compassionate Leave Is Mishandled: A Reminder for Employers

A recent Fair Work Commission (FWC) decision highlights how quickly a workplace issue can escalate when compassionate leave is handled too rigidly. What began as an employee requesting time off after the sudden death of a family member ultimately ended in dismissal and an unfair dismissal finding against the employer.

Brief Background

The employee had been working part-time in a supervisory and administrative role for over a year when her grandmother passed away unexpectedly. She informed her employer that she would be taking compassionate leave and personal leave to deal with the loss.

Shortly after being notified, the employer asked the employee to provide evidence, such as a death certificate or funeral notice, to support the leave request. The employee explained that those documents were not yet available. During this time, some family members contacted management to explain the situation and request additional time for the documentation to become available.

Despite these explanations, the situation escalated. The employer ultimately dismissed the employee for alleged serious misconduct. The termination letter stated that the employee had provided management’s contact details to family members, which allegedly resulted in distressing phone calls, refused to provide the required evidence for leave, failed to respond to communications from the business owner, and caused significant distress to members of management.

Why Did the FWC Reject the Employer’s Actions?

The FWC found that the dismissal was unfair and that there was no valid reason for terminating the employee’s employment. The FWC considered it unreasonable to insist on documentary proof of death only days after a close family member had passed away. While the communications from the employee’s family may have been firm, the FWC did not consider them to be abusive, threatening, or serious misconduct by the employee.

The FWC was also critical of the process followed by the employer. The employee received a warning shortly before being dismissed and was not given a genuine opportunity to respond to the allegations. Most importantly, the employer failed to properly consider the employee’s personal circumstances and the emotional distress associated with the sudden loss of a family member.

As reinstatement was not considered appropriate, the FWC ordered the employer to pay $7,596 in compensation (equivalent to 12 weeks’ pay), plus superannuation.

Key Takeaways for Employers

Be reasonable about the timing of requests for evidence, particularly when an employee has recently experienced a bereavement.

Ensure employees are given a genuine opportunity to respond before disciplinary action is taken.

Consider the employee’s personal circumstances before escalating a situation into misconduct proceedings.

This decision is a useful reminder that while employers are entitled to request evidence and enforce workplace standards, those rights should be exercised fairly and with compassion, especially during emotionally difficult situations.

This article is general in nature and is not legal advice. If you need help dealing with working arrangements with employees or require assistance with another employment law matter, Voice Lawyers can assist you.

We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, or give us a call at 02 9261 1954, or use the link on our website to book a consultation to speak with one of our lawyers.