Declining COVID-19 related miscellaneous paid leave
An employee applied to us for a secondary review of a decision made by their agency to decline their request for miscellaneous leave with pay to cover a number of months they were absent from work, due to being overseas and unable to return home due to COVID-19 related travel restrictions.
The employee's situation
An APS employee travelled overseas in late 2019 and was due to return to Australia in the second half of 2020. They had travelled overseas for a holiday, using their long service leave. The employee was still overseas when the Australian government issued advice in March 2020 for all overseas Australians to return home as soon as possible. The employee did not return home, but did contact their airline and confirmed their flight later in 2020 was still scheduled as planned.
Unfortunately for the employee, due to the challenges and restrictions of the pandemic, in mid 2020, the airline cancelled the planned flight and advised they would not be running flights again for several months.
The employee contacted their manager and advised that they would not be able to return until late 2020. The employee did not book a ticket with another airline because they had a strong preference to remain on their booked airline for a number of reasons, including their assessment of the risks of travel during the pandemic. The employee asked for paid leave to cover their absence from work, or in the alternative, to work from home from their location overseas.
The agency's decision
The employee asked their agency to provide them with miscellaneous leave with pay to cover their absence from duty while overseas.
The agency had a COVID-19 related leave policy, which provided decision makers in the agency with discretion to grant leave where an employee was unable to work due to a COVID-19 related reason, such as being required to isolate or quarantine, or being barred from leaving a foreign country.
The agency denied the employee's request as, in their view, the employee had not demonstrated they met the required criteria to be eligible for paid leave. That is, the employee did not appear to have been prevented from returning home, rather, they had conducted their own risk assessment and decided not to return home until later in the year.
When the employee did return to Australia, and entered hotel quarantine, they were granted paid miscellaneous leave for this two week period, as this met the requirements of the policy.
The employee's review application
The employee disagreed with the decision and considered it was unfair. In their view, they considered paid leave ought to be provided due to their difficulties in returning to Australia given the international travel caps on entering Australia, the challenges of the COVID-19 pandemic generally, and their willingness to work from home while overseas, which would have negated the need to take leave.
On review, the agency considered they had fairly applied the policy, and confirmed their original decision.
As they remained unsatisfied, the employee applied to the Merit Protection Commissioner for a secondary review of the decision.
In conducting this review, we considered:
- the employee's circumstances and submissions
- correspondence between the employee and their manager during the employee's time overseas
- the agency's leave policies including special COVID-19 provisions
- the agency's work from home policy and IT security policy
- the Australian government advice from the time about international travel and returning to Australia.
After considering all of this information, we formed the view that the agency's decision was fair and reasonable in the circumstances. We reached this decision after considering a number of factors:
- miscellaneous paid leave is discretionary, and not an entitlement
- the employee's needs and interests need to be balanced with those of the agency, and the proper use of Commonwealth resources
- the employee had not followed relevant Australian government advice to return home as soon as possible
- the employee's assessment of the risks of travel, and their subsequent choices, did not meet the threshold required by the policy to demonstrate they could not leave a foreign country or could not return to Australia
- it was appropriate to decline the employee's request to work from home while overseas, given a range of factors including security risks and lack of appropriate hardware.
As such, we recommended the agency confirm the decision under review.