Bereavement leave – general entitlements

For most employees there is a minimum entitlement to bereavement leave after the first six months of continuous employment.

Employees who do not meet these eligibility requirements can, however, access bereavement leave in some circumstances. These are covered later in this fact sheet under “The effect of various work patterns”.

Our Holidays Online Tool (http://www.ers.govt.nz/holidays-online-tool/default.aspx) makes it easy to work out what sick and bereavement leave an employee is entitled to. It also calculates public holiday entitlements. Make sure you have payroll information or a payslip handy when you use the tool.

On the death of an immediate family member, the Holidays Act 2003 provides a minimum entitlement of three days’ paid bereavement leave. This can be taken at any time and for any purpose genuinely relating to the death. “Immediate family members” are the employee's spouse, parent, child, sibling, grandparent, grandchild or the spouse's parent. Where there is a multiple bereavement, the employee is entitled to three days' bereavement leave in respect of each death.

For example, this would mean that if an employee was to have three "immediate family members" die at the same time, that employee would be entitled to nine days bereavement leave.

Using bereavement leave

Employees do not have to use bereavement leave immediately, nor on consecutive days, nor even use any or all of the entitlement. Following are examples of bereavement leave usage that are allowable under the Holidays Act 2003:

• Bob is entitled to three days' paid bereavement leave when his brother Jack is killed in an accident while living overseas. The funeral is in Sydney. Bob uses two days of paid bereavement leave to attend the funeral in Sydney. Six months later, Bob takes the other day of paid leave to attend a local memorial service.
• Rangi is entitled to three days' paid bereavement leave when his grandmother dies. He takes two days of bereavement leave immediately to attend her tangi. A year later, he takes the third day of paid leave to attend the unveiling of his grandmother's headstone.
• Joyce takes two days' paid bereavement leave when her sister dies after a long illness. Over the next several weeks, she takes two more half days' paid leave to talk to the lawyer about settling the details of her sister's will.

In the event of a death outside the immediate family that causes a person to suffer a bereavement, an employee is entitled to one day of paid leave if the employer accepts that the employee has suffered a bereavement. In considering whether a bereavement has occurred for that employee, the employer should take into consideration:

• how close the association was between the employee and the other person
• whether the employee is responsible for any aspects of the ceremonies around the death
• whether the employee has any cultural responsibilities he or she needs to fulfil in respect of the death.

The Employment Relations Infoline is able to provide information on managing sick leave and bereavement leave. The Infoline can be reached on 0800 20 90 20.

Payment for bereavement leave

Relevant daily pay is used to calculate payment for bereavement leave.  It reflects what the employee would have been paid if they had worked on the day in question.

1. In many cases it will be clear what payment the employee would otherwise have earned on the day – if this is the case, then that amount should be used as relevant daily pay. Any such calculation must include:
   • productivity or incentives payments, including commission and piece rates, if those payments would have been received had the employee worked
   • overtime payments
   • the cash value of board & lodgings provided.
2. In cases where this amount is not clear the payment is calculated by dividing the employee's gross earnings for either:
   • the four weeks before the end of the pay period immediately before the leave, or
   • where the pay period is longer than four weeks, the pay period before the calculation
   • by the number of whole or part days the employee either worked or was on paid leave or holiday during that period.
3. Employment agreements may specify a rate of relevant daily pay, but only if that rate is greater than or equal to the rate determined according to (1) or (2) above.

Bereavement on a public holiday

Where an employee would have been working on a public holiday but suffers a bereavement, the payment for the day would be as if they had a paid unworked holiday. Therefore:

• the employee would not be entitled to the minimum time and a half payment they would have received had they worked, nor to an alternative holiday
• no bereavement leave would be deducted.

The effect of various work patterns

Most people are entitled to bereavement leave whether they are full- or part-time, permanent or fixed-term employees, providing that they have completed six months' continuous employment.

The Holidays Act 2003 also provides bereavement leave entitlements after six months to employees whose employment is not continuous if, during those six months, they have worked for the employer for:

• an average of at least 10 hours per week, including
• at least one hour per week or 40 hours per month.

Employees on a series of fixed-term agreements or employees sometimes described as “casual” would become entitled to bereavement leave if they meet this test.

The payment for bereavement leave would be made where it is a day the employee would otherwise have worked, and would be made at the employee's relevant rate of pay for the day.

The entitlement to bereavement leave is subject to the same test each 12 months. If in any year the work pattern does not meet the above test, then no new bereavement leave entitlement arises. However, they may requalify on the basis of the previous six months service.

Managing changes to employment agreements: moving from special leave to sick and bereavement leave

The previous Holidays Act 1981 provided a joint sick leave and bereavement leave entitlement called “special leave”. Many employment agreements use the language of this Act to express employees' conditions for leave.

If the agreement is framed in this way, even if its provisions in some ways exceed the new minimum established, the employer and employee should consider renegotiating the employment agreement to reflect the provisions and language of the Holidays Act 2003.

Failure to make needed changes may create leave entitlements that were not intended.

When you are renegotiating, make sure that any reference to each form of leave in your agreement (such as domestic leave, special leave or family leave) maintains the minimum bereavement leave entitlement while also reflecting the special arrangement between you and your employees.

Be sure that any negotiated changes are in writing, as “custom and practice” may not be sufficient if there is a dispute.

Periods of employment before 1 April 2004 go toward qualifying for bereavement leave. For example, if a full-time employee was employed on 1 February 2004 they will qualify for bereavement leave on 1 August 2004.