This begs the obvious question; when can an employee take carer’s leave? In this case, Mrs Johnstone’s wife gave birth to his son 10 weeks’ prematurely. Adam was the couple’s fifth child, 3 of whom were aged under 5 years’ old. Mr Johnstone called his employer, MTGI on the way to the hospital whilst in hot pursuit of the ambulance who was ferrying his wife to hospital for her to undergo an emergency caesarean. He advised MTGI that his wife was about to have their baby prematurely and he would need to go on leave. 

Initially, Mr Johnstone took annual leave for the purpose of looking after his other 4 children during the hospitalisation of his wife and Adam. However, at the instigation of a hospital social worker, Mr Johnstone applied for carer’s leave. At the time, he had over 270 hours of accrued personal leave. In his email requesting carer’s leave, Mr Johnstone attached a letter of support from the social worker co-signed by neonatologist and the Director for Newborn Care at the hospital. Mr Johnstone received no reply from MTGI so assumed that the leave was approved. 

Once he returned to work, Mr Johnstone asked why he had not received any carer’s leave payments which accounted for a mere 2 weeks. MTGI advised that they believed he had abandoned his employment.  A lot transpired in between, including despicable emails from MTGI suggesting that the Johnstones should have aborted Adam and should use contraception. The end result was that Mr Johnstone made an application to the Fair Work Commission claiming he had been unfairly dismissed. 

MTGI responded saying that Mr Johnstone abandoned his employment by not showing up to work once his annual leave expired. This is notwithstanding the fact that Mr Johnstone continued to work remotely occasionally and was in email communication with MTGI whilst on carer’s leave.

The Commission and subsequently the Federal Court held that Mr Johnstone was entitled to take carer’s leave, his employment had been unfairly terminated and he was awarded damages.

Section 97 of the Fair Work Act states that an employee may take personal/carer’s leave if: (a) the employee is unfit for work because of a personal illness or injury; or (b) to care or support to an immediate family member who requires care or support because of: (i) a personal illness or injury affecting the member; or (ii) an unexpected emergency affecting the member.

This entitlement to take leave is not contingent upon obtaining the employer’s consent. However, the employee must comply with s 107 of the Act which requires the employee to give their employer notice as soon as practicable (which may be after the leave has started), and to advise the employer of the expected period of leave. If the employer requires, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97. 

If you have been in this situation, no matter what side of the fence you sit on, you should seek legal advice about what your rights are.