LUMA PIMANTEL/UNSPLASH

Despite being left as the primary caregiver, the situation a Christchurch man's partner was in before she died means there will be no paid parental leave. (file photo)

The case of a father who can't get paid parental leave to care for three children after his partner died has prompted the Government to reassess part of the parental leave scheme.

The Christchurch man's partner died following the birth of their child. During pregnancy, she had been having trouble breathing so she was taken to hospital.

However, on arrival, her heart stopped and their child was born by emergency Caesarean section at 33 weeks, the New Zealand Herald reported.

His partner died after attempts to save her life.

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The child was their first, but she also had two other children who he was also now caring for. She would have been the new child's primary caregiver.

The man was working full time while his partner hadn't had a job in the 12 months leading up to her due date.

After her death, the man's employer allowed him paid time off work, but that couldn't continue.

Now, he can't access any paid parental leave, despite becoming the primary caregiver.

HOW DID IT GET TO THIS?

Ministry for Business, Employment and Innovation engagement and communications acting manager Katie Horrex said: "Under the Parental Leave and Employment Protection Act the primary entitlement for paid parental leave rests with the birth mother, who can transfer some or all of the payment to their spouse/partner, if they are also eligible.

"Unfortunately in this particular circumstance the mother would not have been eligible for payments, meaning the entitlement could not be transferred to the father."

Ros Webby, partner at Dundas Street Employment Lawyers said in her nearly 20 years of experience the situation hadn't arisen before.

Asked why the situation could not be "reset" and the man considered the primary caregiver, she said: "That was exactly my question when looking through the act.

"That seems the most obvious way of going about it. But no, and that's because the way in which the act defines primary carer, it means you can't do it. It just can't happen.

"So they're going to have to, I think, amend that definition of primary carer to enable that to happen."

She suspected when the legislation was written, such circumstances were not considered.

"The whole thing is strictly governed by this piece of legislation and while absolutely, I don't think there would be anyone in New Zealand who wouldn't feel sympathy for this guy and wouldn't want those payments to be made, but under the statutory regime, it cannot occur."

As the act was currently written, there was no way around it, she said.

"This act in particular has given us many a complicated hour slash day slash week to work out or apply it to odd or unique situations.

"I think it's simply a case of it never occurred to whoever was writing it and it obviously went through its select committee process and again, it never came up. Or if it did, they discounted it as being highly unlikely that it would ever happen."

Horrex said the situation was "an unforeseen consequence of the parental leave legislation".

"MBIE is in discussions with the father and will look to issue an ex gratia payment to resolve this anomaly, as well as explore what other government assistance may be available at this time. MBIE will be working with Ministers to address this gap in the parental leave scheme."

Webby said she hadn't been aware of the gap in the act before, either.

"I can't imagine the Government will be wanting this loophole there for much longer, so they may well have a look at putting through an amendment to the act, but that has to go through the usual statutory amendment processes."

Webby couldn't think of any other similar situations but said if there was one, it would eventually be found.

There could be some forms of benefit available for the man, Webby said.

The MBIE extended its condolences to the family. 

 - Stuff