Employer advice – What proof is required for Domestic / Family Violence Leave?

The Employment Relations Authority has issued a determination which provides guidance to employers regarding proof required for family violence leave. The Domestic Violence – Victims Protection Act 2018 (the Act) provides minimum protections for family violence victims in employment, through amendments to the Employment Relations Act and Holidays Act. [1] The Authority has confirmed that an employer is entitled to request that an employee applying for family violence leave provides proof that they are affected by family violence. However, it applied a relatively low threshold, noting that “any proof” that an employee is affected by family violence will be sufficient.[2] 

Background relationship in RDJ v SGF [2003] NZERA 462  

In RDJ v SGF, the employee (RDJ) and his ex-wife (ZEL) were in an employment relationship. RDJ had jointly owned a business with his wife, before they separated. After the end of the marriage, the husband ended his financial interest in the business, which was owned by a trust which his ex-wife was a shareholder and sole director. Other shares were held by the trust for the benefit of their children. 

RDJ returned to work for the business under the company’s general manager (Mr F), while his ex-wife was recovering from ill-health. His ex-wife moved to be with a new partner. A dispute between RDJ and ZEL over care arrangements continued over months. The ex-wife arranged for an old friend (Ms G) to start working for the company. Ms G lived at the ex-wife's house, where the company office was located. Ms G and the ex-wife subsequently married, although described the relationship as limited to an expression of support between the two, who were raising children together, and, ZEL remained living out of town, with her new partner. 

A meeting between RDJ and ZEL about parenting arrangements became heated and resulted in Police involvement. On arriving at work in the subsequent days, RDJ noticed a samurai sword, a gun and adult toys had been placed on the windowsill of a room in his ex-wife's house, which he walked past to get to the office. He felt threatened by this. The ex-wife later described this as “a joke” with Ms G, and denied any intention to intimidate. 

A further parenting argument which occurred at work became heated and resulted in yelling and RDJ banging his fists on the table. He was then invited to a disciplinary meeting to respond to a complaint about his behaviour towards women at work, which could result in serious misconduct and his dismissal. However, it was found that no further action should be taken. 

The personal grievance claims raised by RDJ 

RDJ resigned, giving the required notice, with his last day of employment being the end of the month. He raised a personal grievance, on the basis that his resignation amounted to a constructive dismissal from incidents of bullying and inappropriate behaviour by his former wife, which meant that he no longer felt comfortable on the worksite. (This claim was not upheld by the Authority). 

The second ground of claim related to allegations about how he was treated during his notice period, and that this amounted to instances of unjustified disadvantage. RDJ had applied to take the third and fourth week of his notice period as domestic violence leave. However, the employer denied his request, instead applying unpaid sick leave. 

Summary of the Authority’s determination 

The Authority accepted that there were “blurred lines between the relationship of ZEL and RDJ as ex-spouses and co-parents and the relationship between the legal entity of the company as employer, RDJ as its employee and ZEL as managing director.”[3] 

The Authority concluded that the ex-wife's actions, by using her role and control in the employment relationship to pursue her concerns about family matters, breached reasonable limits on what could properly be addressed in and through the workplace. This included unfairly pressuring RDJ while at work, to take part in discussions that should have been confined to outside of work hours. This breached the employer’s duty of fair treatment and amounted to an unjustified disadvantage.[4] 

In his request to take domestic violence leave, RDJ did not give reasons for the leave but stated that “due to ongoing issues that directly involve the managing director of [SGF], [ZEL] I am unable to discuss this matter with [her]”. He also asked that his ex-wife not contact him “on all other work-related matters until this issue has been resolved.”[5] 

RDJ's manager requested proof that he qualified for domestic violence leave. RDJ responded that providing proof was “quite tricky” but that he was “willing to talk to a third party, outside of the business to give more evidence if needed”. He attached copies of text messages from his ex-wife (ZEL) and a photograph from an earlier incident involving ZEL and RDJ’s partner in which she had been injured by ZEL (for which she had been charged with common assault), noting that ZEL had physically assaulted him in the past. He explained that he had received abusive phone calls, messages and visits, and stated that he did not believe that ZEL could handle the issue in a fair and impartial manner.  

The manager responded, reiterating a request for proof that he was the victim of domestic violence. 

The Authority stated that it was more likely than not that a reasonable employer, aware of the complex and volatile context, would have accepted that the threshold for the type of behaviour that was defined as family violence had been crossed in the interactions between the husband and his ex-wife. On that basis, RDJ was a person affected by family violence “and a reasonable employer, acting fairly, would have granted the ten days leave requested.”  

During the notice period, the employer had also used an occasion to meet RDJ to collect his work phone and car, and while there served RDJ with trespass notices for the street address of the ex-wife’s residence and the office, and for another address. The Authority found that RDJ “was also unfairly treated by Ms G using the opportunity of a work-related visit to him to serve him with two trespass notices that clearly related to personal matters.” This created an unjustified disadvantage and RDJ was awarded lost wages for the notice period (where he should have been paid domestic violence leave) and compensation for humiliation, loss of dignity and injury to feelings. 

Employer obligations when considering an application for Family Violence Leave 

Of significance for employers, is that the Authority stated: 

“[52] The Holidays Act provides no guidance on a situation where an employer, or some other person in a position of management responsible for making decisions about Family Violence Leave applications, is the alleged perpetrator of the violence. However the measure for assessing what any employer has done in considering an application for Family Violence Leave is the standard set by section 103A of the [Employment Relations] Act for assessing all employers’ actions. This asks whether what the employer did was what a fair and reasonable employer could have done in all the circumstances at the time.”  

 A low threshold for proof required to support an application for Family Violence Leave 

In considering a request for Family Violence Leave, the Authority observed: 

“[61] Such an employer is entitled to request, as SGF did, proof that the applicant for Family Violence Leave is a person affected by family violence. The statute does not establish what level of proof is required. Learned commentaries suggest it is set at a low bar. The analysis in those commentaries also note that Parliament rejected prescribing the range of acceptable documents that may be provided in support of a Family Violence Leave request. Rather “any proof” that an employee was affected by family violence would be sufficient.” 

Employer guidance 

Employers are reminded that: 

• An employer is legally entitled to seek proof to support an application for domestic violence leave. 
• If requested, proof must be provided by an employee. 
• What amounts to proof is set at a low bar. For example, this may include medical reports, court documents, communication from organisations providing support for domestic violence, information from friends or families (i.e. less intrusive forms of proof). 
• Employers receiving an application for domestic violence leave must act in good faith, and consider what is fair and reasonable in all the circumstances. 
• Those receiving applications for domestic violence should be providing training to ensure that they treat disclosures with confidentiality and sensitivity, and that they meet the employer's obligations in respect of managing domestic / family violence and its harm, within the context of the employment relationship. 
• Workplaces should provide clear guidance to employees about who disclosures can be made to and the process to follow. 

For advice on managing employment relationships, including managing Domestic/Family Violence situations, please don’t hesitate to contact our specialist employment lawyers at DTI Lawyers. You can contact us on 07 282 0174, or reception@dtilawyers.co.nz