Can an Employer Refuse an Unpaid Leave Request?

by Nov 11, 2022All Posts, Human Resources

A question that troubles many employers, ‘is it okay to deny an unpaid leave request?’ There is no one simple answer to this question, as it varies dependent upon circumstance. In most cases, there is no obligation to grant unpaid leave, however there are minimum entitlements for some types of leave that SHOULD be granted, and others in which it is highly advised to do so, to avoid unlawful discrimination claims.

It is at the discretion and agreement between employee and employer to grant unpaid leave for the purpose of study, sabbatical, and appointments (unless they are prenatal appointments). Notice should be given to an employer as soon as practicable, and evidence can be asked to substantiate requests. An employee’s inability to provide evidence gives substantiated grounds for an employer to deny a leave request. 

In accordance with the National Employment Standards, employees are entitled to the following leave as a workplace minimum and upon the provision of statuary declarations, doctor certificates and/or other court issued documents as evidence, there is limited grounds to deny such requests, when:

  • An employee has used their accrued personal/sick leave, they are entitled to request and receive 2 days of unpaid carers leave per occasion, to take time for themselves, and/or to care for an immediate family or household member due to illness, injury, or emergency.
  • An employee is dealing with circumstance of Family and Domestic Violence (FDV), they are entitled to receive 5 days of unpaid Family and Domestic Violence Leave each year (this does not accrue but resets annually). This should be granted to help with the ongoing circumstance, such as investigations, court proceedings and arrangements of safety for self and/or family members.
  • An immediate family or household member of an employee has been diagnosed with a life-threatening illness or has died, an employee can request 2 days of paid compassionate leave per occasion. Employees are also entitled to this if a defacto partner or spouse have experienced a miscarriage or stillbirth. 

*The definition of immediate family or household member is inclusive of a current or former spouse, a current or former defacto partner, and a grandparent, grandchild, sibling, or child of the employee, current or former spouse, or current or former defacto partner.

Employees are also entitled to unpaid leave to conduct training or study efforts, however every employer has the right to deny such if they can ascertain that the study has no relevance to the business and if the employee is requesting an unreasonable amount of time to complete such.

Sometimes the decision of granting leave is more about work life balance and considering the effects a holiday or training will have on an employee’s productivity and the risk of losing a good employee should the request be denied. This is especially relevant in today’s society where balance, flexibility, and workplace culture are becoming increasingly important to employee satisfaction and retention.

Employers need to be fair within decisions surrounding employee leave, ensuring that thought and evidence have been considered to support decision making. For example, granting an employee a month of unpaid leave due to extended family member illness, sets the expectation that another employee request in regard to a direct family member illness (of similar circumstance) would be entitled to the same.

It is advisable to communicate openly with your employees and to be realistic of leave duration, especially requests due to illness, surgery or caring for another, as this may impact future working capacities. Identifying and planning with an employee will prevent unnecessary stress all round and will reduce the likelihood of disruption to your business.  

Navigating employee leave and entitlements can be difficult as these conditions are subject to continuous reform, alongside the consideration of individual employee circumstance both within the situation of application and employment type. Assurance HR have specialists within the field of Human Resource Management who can assist you to navigate employee leave, by providing aid in the form of advice and/or the drafting of appropriate notice and adjustments of agreements. Contact us today on 1800 577 515 and allow us to reduce your HR workload.

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