One in five pregnancies will miscarry, according to Health New Zealand Te Whatu Ora. Photo / 123rf
Warning: This article discusses miscarriage and stillbirth.
“Why do you need two days? You’re not the mother.”
That was the response head chef Aaron Wallace received when he asked his boss if he could have time off work because his wife had experienced a miscarriage and required surgery.
His boss at Auckland’s Buoy Cafe, Sok Heang (Irrene) Toun, later said that she couldn’t recall making those remarks when the case went to the Employment Relations Authority (ERA) after the couple was dismissed last November.
Buoy Cafe owners lost the case and were ordered to pay the couple about $95,000.
Miscarriage, a pregnancy that ends by itself before it reaches 20 weeks, is a common occurrence and talking about it is no longer the taboo it once was. According to Health New Zealand Te Whatu Ora, one in five pregnancies will miscarry. If the pregnancy ends after 20 weeks, it is considered a stillbirth.
But Wallace’s case shows that the stigma of a partner getting support when they weren’t the ones carrying the child still exists. So what are the rules in the workplace?
Kate Tennent, employment lawyer at Edwards Sluiters Employment Lawyers, explains that, under Section 69 of the Holidays Act 2003, an employee can take bereavement leave if they or their partner’s pregnancy ended by way of miscarriage or stillbirth.
“This may also apply where a pregnancy of another person ends in miscarriage or stillbirth, and the employee would have been the biological parent of that child, even if the employee is not in a relationship with that person,” says Tennent.
“Or if the employee or their partner had undertaken to be the primary carer of the child of the pregnancy, for example, in the case of a proposed adoption.”
If the worker has been with the company for at least six months, working at least an average of 10 hours per week, the employer must provide three days’ paid bereavement leave in this situation.
There is no difference in entitlements for the person who miscarried versus their partner. Both get three days’ bereavement leave, explains Tennent, and “the person who miscarried may also need to take sick leave, which is a separate entitlement”.
It also doesn’t matter what stage the pregnancy has reached. Both miscarriages and stillbirths are covered by the act.
Tennent says the worker always has an obligation to act in good faith and be constructive and communicative with their employer, which may mean providing medical proof.
“If an employer requests medical proof of the miscarriage or stillbirth, it would fall under the employee’s obligations of good faith to provide this,” she says, adding that medical details would not need to be provided, in her opinion, only the fact that a miscarriage or stillbirth had occurred.
For charity founder Susan Numan, “there is no difference between mum and dad”.
“They are both parents, they’ve both had a baby that they’re now having to bury or cremate,” she tells the Herald.
Eighteen years ago, Numan founded Baby Loss New Zealand, a charity that supports families impacted by early loss. Every year, it meets with dozens of families who have had babies born under 20 weeks at Middlemore and Auckland Hospitals.
Numan says she sees partners holding their baby in the palm of their hands. “The emotional toll can be absolutely huge ... there are so many of them that will just sit here and cry ... they’ve said [the charity] has given them a place where they do feel that it’s okay to grieve for their baby, they don’t have to push it down.
“So then when you’ve got things like being forced to go back to work, they’re not having that time to be able to grieve themselves for that baby that they also lost,” she said.
“In the past, it used to be that the dad needed to be there for the wife and be the strong one ... And these dads are grieving too.”
“The employee can raise a concern with the Labour Inspectorate for a breach of the act, or raise an unpaid wages claim if the employee has taken the leave they are entitled to and not been paid for it,” says Tennent.
“Note that due to recent legislative changes, failure to pay money owed to an employee under the act is now considered theft under the Crimes Act 1961, so a police report can also be made.”
It’s also possible to raise a personal grievance if the worker feels they have been disadvantaged in their employment due to asking for their entitlement. This must be done within 90 days of the disadvantaging action being taken by the employer.
“The law is crystal clear on this issue,” says Tennent.
“If an employee is entitled to bereavement leave, those entitlements arise, not just on the death of a close relative, but also in the event of miscarriage or stillbirth.
“Employers who do not allow staff to take this leave or fail to make payment for it are liable to be criminally charged or have a determination against them in the ERA.”
Varsha Anjali is a journalist in the lifestyle team at the Herald. Based in Auckland, she covers entertainment, travel, and more.