The Fair Work Commission has updated all industry and occupation Awards, whereby all employees covered by a Modern Award (including part-time and casual employees), are now entitled to 5 days unpaid family and domestic violence leave (DVL), effective 1 August 2018. There is talk that this should be legislated for all employees irrespective of whether they are covered by an Award.
What is the entitlement?
The three points that must be fulfilled to obtain DVL are:
- The employee is experiencing Family and Domestic Violence; and
- The employee needs to do something to deal with the impact of the violence; and
- It is impractical to do so outside of ordinary hours of work.
Family and Domestic Violence “means violent, threatening or otherwise abusive behavior by a family member of an employee and that causes them harm or to be fearful”.
What evidence is required?
Employers can request evidence from employees before granting DVL. The relevant test when assessing evidence is “whether a reasonable person would be satisfied that the employee took the leave for the purpose of DVL”.
Whilst there is no case law on this yet, examples of evidence that can be requested may include documents issued by the police, court or a family violence support service, or a statutory declaration.
The obligation of confidentiality
Employers have an onus to take steps to ensure any notice requesting DVL or evidence provided is treated as confidential, as far as reasonably practicable. However, this onus is balanced against any disclosure required under existing Australian Laws or disclosure considered necessary to protect the life, health or safety of the employee or another person.
Case Law Review
Introductions of DVL falls on the backdrop of the Fair Work Commision (FWC), increasingly recognizing the negative impacts DV has on the employment sector in Australia.
Aaron Hunt v Coomealla Health Aboriginal Corporation  FWC 3743 (26 June 2018)
- The employee was dismissed after police arrested and charged him with assaulting his partner
- The employee’s role included running a men’s group that addressed issues including domestic violence and mental health
- The employee’s contract incorporated the organisation’s code of conduct which promoted community confidence
- The employee was dismissed as his actions breached his employment contract and its code of conduct
- The employee argued his dismissal was unfair as it concerned out of hours conduct and mitigating factors included intoxication and new mental health medication
- The FWC held the dismissal was justified, proportionate and fair, as Mr Hunt had breached his contractual obligations, particularly his obligation not to act violently
- The case referenced Rose v Telstra  AIRC 1592 which held conduct outside the workplace can provide a valid reason when it is“likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee”
- Growing trend of the FWC to respond effectively to incidences of domestic violence which affect employment
- Implement policies and procedures for dealing with domestic violence
- There is a significant role for codes of conduct and internal policies when terminating employees
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