Bereavement leave (for stepfather):

PART 1 — FACTS 

In July 2024, Dr Zabortseva's stepfather passed away. She was granted the first 1.5 days of her bereavement entitlement under the Enterprise Agreement. When she requested the remaining 1.5 days — to which she was entitled — the request was refused. 

At the time of her grief and while being refused her right to grieve, Dr Zabortseva was communicated by her manager accounts of employees who had previously falsified deaths to access bereavement leave.

At the same time, as deposed in Dr Zabortseva's affidavit, her scheduled annual leave — for which she had accumulated sufficient entitlement — was put on hold by HR, preventing her from traveling overseas to support her family in their grief. 

In her grief — refused her right to grieve in peace, informed of accounts of falsified bereavements, and with her scheduled annual leave to travel overseas to support her family put on hold by HR (deposited in the Court Book, ACD11/2025) — Dr Zabortseva provided the only available proof of her loss at that time: a photograph from her stepfather's public viewing.

EVIDENCE: 📃Manager's evidence on the refusal of the bereavement leave and informing Appellant about accounts of falsified bereavements at time of her grieve ( for the Appellant's stepfather) — Court Book page 1143, ACD11/2025 

PART 2 — PRIMARY JUDGE'S DECISION 

The primary judge found that the refusal was based on advice that was "clearly incorrect" (Decision [242]–[243]). However, no declaration of contravention was made. The judge's reasoning was that the financial consequences of the refusal were minor.

PART 3 — APPEAL

A) Dr Zabortseva appeals to the Full Court that this approach conflated the question of liability with the question of remedy, and assessed a right guaranteed by section 50 of the Fair Work Act 2009 (Cth) — the right to grieve — by reference to its financial value alone. The context in which the refusal occurred, and its consequences, were not taken into account.

B) Consequence: Dr Zabortseva further appeals that the characterisation of the provision of the only available proof of her loss as "erratic conduct" by the primary judge is inconsistent with the concurrent finding that the bereavement entitlement was wrongly refused. That characterisation became a central basis for the IME referral, despite the fact that the proof was provided in response to implied doubts about her honesty in the context of her grief and in the time when her bereawement leave was refused. Those findings were not reconciled. 

See also: Appeal Outline | ACD 11/2025 | AI Case Summary