A grandparent who unexpectedly became the primary caregiver of their infant grandchild following concerns about the child’s welfare has had to fight for parental leave payments.

While the grandparent, who has name suppression, was entitled to the payments, their application was declined because they returned to work to complete a handover after becoming the child’s carer.

The grandparent later turned to the Employment Relations Authority (ERA) to challenge the Ministry of Business, Innovation and Employment’s (MBIE) decision to decline their application.

According to ERA member Rowan Anderson’s decision, released last week, the 5-month-old came into the care of the grandparent, referred to as NRT, in December last year following concerns about the child’s welfare.

Those concerns initially arose when the child and their mother resided at NRT’s.

When the issues became more serious, arrangements were made for NRT to temporarily look after the child, and the mother moved elsewhere.

At the time, NRT was permanently employed and continued to work for another week before taking annual leave until mid-January, when they applied for parental leave payments.

The application was on the basis that the child had been in their care since December.

NRT also wrote to their employer seeking parental leave and then returned to work in mid-January for two weeks.

“NRT said that when they returned to work after the Christmas period it was clear that continuing to both work and care for the child would not be possible,” Anderson said in his decision.

“When NRT returned to work, they did so primarily because their employer wanted a handover completed.”

But NRT’s employer soon advised their role could not be kept open for any period of parental leave, and Inland Revenue informed NRT it could not process their application for payment because the correct evidence of care had not been provided.

After providing further information, Inland Revenue declined NRT’s application because they continued to work until the end of January, after the child came into their care.

If an applicant disagrees with the department’s decision, they can contact MBIE, which has primary responsibility for parental leave, administering the laws and providing policy advice.

MBIE initially accepted NRT met the parental leave payment threshold and that they were eligible for the payments on the basis that care for the child began in December, but later contended Inland Review’s decision to decline the application was correct.

Anderson’s decision stated the issue for the ERA related to the requirements of the Parental Leave and Employment Protection Act 1987 (PLEPA) concerning entitlement based on whether NRT’s ongoing employment or return to work had the effect of disentitling them.

Because NRT’s application proceeded on the basis that they assumed primary care of the child in December but then remained employed, their application could not have been granted, he found.

“The disentitlement would have occurred despite NRT’s return to work being brief in nature and for the purposes of what NRT understood to be a duty to work out a contractual notice period.

Inland Revenue had declined the grandparent's application.

“Such disentitlement would appear to be inherently unfair, particularly where the assumption of primary care came about with little or no notice.”

However, during Anderson’s investigation, he said it became apparent that the date NRT became the child’s primary carer may not have been in December.

For NRT to be considered the primary carer under the PLEPA, they would have to have taken permanent primary responsibility. But the arrangements made in December were only temporary.

“The nature of the arrangement then changed at some point and NRT’s evidence was that the child was, at the time of giving evidence, in NRT’s care for the foreseeable future.

“Albeit that there was some uncertainty as to when the nature of the arrangements changed, NRT’s evidence was that there was a change by Easter of 2024 following some consideration of the matter and a family gathering.”

Anderson found that NRT only took permanent primary responsibility for the child as of April 1, after they had worked out their notice period.

The decision stated that following the investigation, MBIE’s position changed and it now accepted NRT became the primary carer at that later date.

Following an amendment of the application reflecting the new date, Anderson considered NRT’s eligibility for the payments.

He was satisfied that NRT is entitled to parental leave payments and ordered that their application, in its amended form, be treated as approved.

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.