Failure to Acknowledge Family Relationship Unfair

The nature of family relationships has changed a lot over recent years. Back in the day you would have a mother and father and a handful of siblings. If you were lucky you’d have the odd grandparent, and maybe a smattering of cousins (not trying to imply that all your grandparents were odd). But today this all seems to have changed and sometimes it’s impossible to get your head around the technicalities of merged families.

This can have important consequences where the law has fallen behind the times. A recent Employment Relations Authority decision considered whether the employee, Mr M, was wrongly denied full bereavement leave on the passing of his whangai brother Mr K.

In Maori culture a whangai is where the adopted child has some blood connection with the adoptive parents. However for the purposes of adoption law, whangai is an informal and customary arrangement and therefore not recognised by law.

No definition of ‘sibling’

Mr M was employed under a collective agreement which provided for 3 days bereavement leave upon the death of an “immediate relative”. The collective agreement defined immediate relative as including brother and sister, but neither the collective agreement nor the Holidays Act further explain who qualifies as a sibling. Mr M’s employer denied him full leave because it did not consider that his relationship with Mr K met the definition of brother or immediate relative.

Instead he was allowed one days’ bereavement leave and had to take two days’ annual leave.

Employer uses wide interpretation in other situations

The Authority considered past situations where Mr M’s employer had allowed full bereavement leave upon the death of an employee’s niece, and in another situation for the death of a step-parent. The collective agreement itself extended the relationships that qualified for bereavement leave to include “in-laws” generally, not just the parents of a husband or wife. This indicated the employer gave a wide interpretation to the meaning of immediate relative, even extending it to non-blood relatives.

There was no doubt that Mr M’s parents considered Mr K as another son. Mr K was raised as a son, having lived with the family since before Mr M was born. Mr K lived in the family home, helped to care for elderly members of the family and had his name on their father’s headstone. It seems clear that Mr M and Mr K were brothers.

‘Brother’ should include ‘whangai brother’

The Authority decided that the word “brother” should be interpreted in a way that recognises the relationship of a whangai brother. It was held that refusal to grant leave was not the action of a fair and reasonable employer, and Mr M should have been entitled to three days bereavement leave. The annual leave that Mr M had used was reinstated and he was awarded $1,000 in compensation for emotional distress.

Fair and reasonable is the key

Unfortunately these situations are dealt with on a case by case basis and leave allowances are specified in individual employment agreements or collective agreements. However because there is a clear duty on employers to be fair and reasonable, it is likely that there will be some flexibility in taking bereavement leave in the future. We can only but hope that one day soon the law will catch up on the various intricacies of customary relationships and merged families.