By Jeff Salton

As an employer, what would you do in the following circumstances … a worker applies for annual leave for a period of four days to care for his wife and two children as his wife was expected to have elective surgery.

The worker doesn’t provide details of the specific nature of the surgery and you respect the worker’s privacy and don’t pry into what the surgery entails.

But on his return to work, the employee provides you with a carer’s leave certificate and asks to be paid personal leave as opposed to annual leave. He claims he contacted the Fair Work Commission and was advised he is within his rights to do this.

Are you legally obliged to pay carer’s leave in the circumstances? Do any laws allow you to see more information or evidence that there was an actual illness? Does elective surgery meet the definition of injury or unexpected emergency?

Editor-in-Chief of the Employment Law Practical Handbook Charles Power says that under the Fair Work Act 2009 (Cth) (FW Act), workers can use their personal/carer’s leave entitlement to take paid leave to provide care or support to a member of their immediate family or household who requires care or support because of a personal illness or injury, or an unexpected emergency.

We don’t consider that leave to take time off to care for a household member who has undertaken elective surgery meets this test. Therefore, the worker would have to use their annual leave for this purpose.