"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.
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.