Australia: Think domestic violence has nothing to do with you as an employer? Think again!

"It's terrible that you're experiencing domestic violence but what's it got to do with me? I'm just your employer."

Well, actually, quite a bit, in terms of both general employee entitlements and individual cases. Of course, employers are not responsible for employees' domestic situations, but the law mandates some entitlements for employees experiencing domestic violence, and also indirectly encourages employers to provide assistance where feasible, and not to take actions which may make things worse.

So, what are the entitlements? Basically, the right to take up to five days unpaid domestic leave in order to attend to something (such as seeing the police or a lawyer, attending court, moving house, changing the children's schools) which can't be done outside work hours, and where acceptable evidence is provided. This right was originally limited to award employees but has been extended to all employees by amendments to the Fair Work Act (so the domestic violence leave provision will be taken out of modern awards).

As this is a relatively new entitlement, there is, as yet, little experience of how often employees will claim this form of leave. As it is unpaid leave, and requires the employee to disclose that they are a victim of domestic violence (which victims will often be reluctant to do for personal reasons and because of concerns about confidentiality), and because it is a time of great financial stress, it is possible that employees will more often claim paid annual or personal leave, where possible.

A background of domestic violence is also a legal basis for an employee to claim flexible work arrangements under the Fair Work Act, and employers need to accommodate such requests unless they can articulate "reasonable business grounds" for refusing. Where the reason for requesting flexibility is domestic violence, the onus on the employer to have cogent reasons for any refusal is probably higher than in other less pressing or serious situations.

Less directly, if domestic violence forms part of the background to an unfair dismissal or adverse action claim, the Fair Work Commission (FWC) is likely to expect the employer to be understanding and responsive, rather than uninterested or inflexible, in making decisions about the victim's employment.

A few illustrations:

  • a law firm, which knew an associate was involved in domestic violence proceedings, sacked the employee when she was slow to inform them of a delay at court, and therefore did not attend for work when expected: while the employee should have told them sooner, there was "a lot going on" for her, which partially excused the delay – the law firm was ordered to pay $11,000 compensation, after a 50% reduction because the employee was partly responsible;

  • an architectural business employed a couple, and when an AVO was imposed on him because of a domestic violence incident (the AVO requiring the couple to come no closer to each other than 3m), the business decided to sack the female victim, as the male offender was more important to the business: the FWC held that while there are "limits to the extent to which an employer can be expected to accommodate the private lives of employees," the employer could have accommodated both employees, as their work didn't require interaction in the workplace - the employer was ordered to pay $27,000 in compensation;

  • an IGA supermarket dismissed a female employee of 10 years' standing, who was experiencing domestic violence: the termination was upheld because the employee's attendance had become erratic, she had been repeatedly counselled and warned, and the employer had "been very supportive of her" and "very tolerant" and "went to extraordinary lengths over an extended period of time to assist in dealing with issues outside of work" (such as paying for counselling sessions) but became frustrated by the employee's failure to comply with directions to make prompt contact when she could not attend work.

Family Businesses

These issues can become even more difficult where the employer is a family business.

In the Family Law context "family violence" can include financial control, where one party is "unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support".

A common occurrence in Family Law matters, in circumstances where parties are operating and working within a family business together, is where one party, usually the controlling party within the family business, takes steps to remove the other party's access to the business, removes the other party as a Director, restricts the other party's access to the business accounts and prevents the person from participating in the daily operation of the business. This type of conduct can amount to family violence, particularly in relationships where there is an already existing cycle of family violence in the more traditional sense of physical or psychological abuse.

It is important for a person experiencing this form of family violence (and for the employing entity or the controllers of that entity) to know that in this situation, they can seek legal recourse from the courts where necessary. The courts have power to make a wide range of orders, such as ordering one party to reinstate the other party within the business, or for a party to continue to receive an income from the business, or ordering the accountant for the business to disclose all financial documents to a party, and ensuring, as far as possible, that the perpetuation of family violence does not occur.

The Take Home Point?

Where employees are involved in domestic violence situations, or where a business is embroiled in family violence between people working in the business, employers need to take a step back, and consider both employment law issues and, in family businesses, family law issues, before acting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions