Showgirls have a Wi$h Li$t: Responding to requests for unpaid leave

They want that

Yacht life under chopper blades

They want those

Bright lights and Balenci shades

And a fat ass with a baby face

They want it all

They want that complex female character

They want that critical smash Palme d'Or

And an Oscar on their bathroom floor

They want it all…

And they should have what they want

They deserve what they want

Hope they get what they want

I just want ... [unpaid leave]

Wi$h Li$t by Taylor Swift from The Life of a Showgirl

These days, people have many interests outside of work and may request unpaid leave to do a variety of things, including caring for a sick or loved one, study, travel, or pursuing a side hobby amongst other things (or if you’re Taylor’s friends, needing unpaid leave for that yacht life, Oscar or Palme D’Or winning film, living off the grid, contract with Real Madrid or a spring break…)

How should an employer respond to a leave request? Especially an unpaid leave request?

This article is not talking about paid leave, such as annual leave or personal or sick leave, where there are clear criteria to such paid leave.

What about a request for unpaid leave? Are employers required to grant unpaid leave?

Firstly, is it a legally required unpaid leave entitlement, such as under the National Employment Standards of the Fair Work Act 2009 (Cth)? Some forms of unpaid leave are legal requirements if certain requirements are met.

For example, employees are entitled to two days’ unpaid carer’s leave every time an immediate family member or household member needs care and support because of illness, injury or an unexpected emergency, if they have run out of paid personal/carer’s leave.

Another example is the entitlement to unpaid community service leave.  This could include voluntary emergency management activity such as the work conducted by a recognised emergency management body (e.g. the Country Fire Authority or State Emergency Services). Another example of community service leave is jury duty.

Parental leave, including extended parental leave, which is 12 months’ of unpaid leave with a possible extension to 24 months’ unpaid leave, is a legal entitlement subject to meeting certain requirements including minimum service requirements.

Compassionate leave can be taken where a member of an employee’s immediate family or household dies, or contracts or develops a life-threatening illness or injury, a baby in their immediate family or household is stillborn, if they have a miscarriage or their current spouse or de facto partner has a miscarriage.  While compassionate leave can be paid, it can also be taken as unpaid leave for casual employees.

Some Awards also have a provision for ceremonial leave, where a person who is legitimately required by Aboriginal or Torres Strait Islander tradition to be absent from work for traditional ceremonial purposes is entitled to up to 10 working days’ unpaid leave in any one year, with employer approval.

Is there a policy on unpaid leave?

Secondly, does the employer have a specific policy in relation to unpaid leave?

Most employers don't have a specific policy or contractual term in relation to unpaid leave. However, if there is one, then an employer should follow the guidance set out in that policy. For example, some employers do have a policy in relation to study leave, which may grant employees time off in relation to study leave, whether paid or unpaid.

What is the purpose of the leave?

Thirdly, if this is not a case of a statutory entitlement to unpaid leave, or a clear policy or guidance requirement, then what should an employer do?

What is the reason for the request for unpaid leave? Is it because an employee has used all of their personal leave? Is it an extension of an entitlement to paid leave (such as paid personal leave) but requires a few more days’ off work? Or caring for a sick child that requires a few more weeks of tests?

Employers have the discretion to consider carefully any requests for unpaid leave, including the amount of time requested to be taken off, the reason for the request, and organisational factors.

If an employer does not have any policy in relation to unpaid leave, then they should consider a number of factors and ask questions such as:

·         What is the purpose of the leave? Does it make sense in relation to the employee's circumstances? Is there a hardship or extenuating circumstances? Does the leave (e.g. study leave and skills learned) actually assist the employer’s business?

·         Will the leave benefit the employee's well-being or professional development? While this does not mean that every request should be granted, it may set or drive a culture of the importance of professional development and employee wellbeing or flexibility.

·       Can the work that the employee does be managed or covered during their absence? This will also be related to the time requested to be taken off as well as the nature of the role.

·         How have other similar requests in the organisation been dealt with? Again, while not a determinative factor, as each situation will be different, it would be helpful to understand if a similar request has been granted previously.

·         Will the employee return to work after their leave? Is there an interest in retaining that employee?

Communicating the decision

Fourthly, if the answer to the request for unpaid leave is “no”, then an employer should consider providing clear reasons for the decline of the request.  This may mean that an employee simply resigns from their role if they are determined to have that time off or they may attend work but be disgruntled.  However, if an employer has considered all the above factors, and communicated the reasons, this may assist in helping both parties understand the position.

Another option rather than just saying no, is to suggest an alternative i.e. a shorter time period or suggesting different dates for the unpaid leave (e.g. not during the busy Christmas period trading season for example).  Other alternatives could be to move to part-time work or changing work days to accommodate the request.

If the answer is “yes”, then an employer should consider the exact terms of that unpaid leave.  While salary may not be paid and paid leave entitlements will not be accrued, what about superannuation payments? Eligibility for bonuses or allowances? Will the employer hold the employee’s role open for them when the unpaid leave ends? All these issues should be clearly set out in response to any request for unpaid leave.

In conclusion, employers need a clear response when someone says they want to “boss up, settle down, got a wish-wish list-list…”

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.