Recent decision confirms that bar for proof of family violence is low
The Domestic Violence – Victims Protections Act 2018 amended the Holidays Act 2003 (Act) and created entitlements to family violence leave. Section 72G of the Act provides that where an employee requests family violence leave, an employer may ask for proof that the employee is a person affected by family violence.
Unhelpfully, the Act does not define what “proof” means. The recently released Employment Relations Authority decision, RDJ v. SGF [2023] NZERA 462, provides a worked example of the Authority’s wrestling with this issue.
The facts of this matter involve a complicated and messy overlap between family disputes over childcare arrangements (which did become violent) and the workplace. The employee in this case (RDJ) was employed by SGF, three years after he and his ex-partner (ZEL) had separated. RDJ had previously ended his financial interest in SGF on separation but ZEL remained Managing Director of the business.
Despite ZEL’s lack of engagement with the day-to-day aspects of SGF, she continued to liaise with RDJ regarding contentious family disputes (both inside and outside of the workplace). During one heated discussion, ZEL physically assaulted RDJ’s partner and subsequently received police diversion. Shortly afterwards, RDJ was invited to a meeting with ZEL at SGF’s offices, which RDJ thought was about work but ended up being about parenting matters and, again, became heated.
In February 2021, SGF received a complaint from its second-largest customer about RDJ’s work along with a request that RDJ be removed from working on her portfolio of properties. Shortly after this, the work was reassigned to another employee.
After the resignation of an office administrator in March 2022, ZEL sent an email about a meeting to discuss a potential restructure so that property managers would complete more of their own administration and a change to salary structure.
RDJ resigned prior to this meeting and later raised a constructive dismissal. He was not successful in his claim.
RDJ was successful in his claim that SGF had failed to fairly consider his family violence leave application.
Two weeks into his notice period, in mid-March, RDJ applied for family violence leave from his manager, Mr F. RDJ’s email set out that “due to ongoing issues that directly involve the managing director of SGF, ZEL, I am unable to discuss this matter with her.”
When asked to provide evidence, RDJ responded with copies of text messages he had received from ZEL, a photograph of a bite mark on his partner’s arm (which had been inflicted by ZEL) and stated he had received abusive phone calls, messages and visits from her. RDJ volunteered to talk to a third party about his reasons further and expressed concerns that ZEL could not handle this issue in a fair and impartial manner.
Mr F insisted that he needed proof that RDJ was “the victim of domestic violence.”
In the course of the Authority investigation, it became clear that ZEL had been involved in drafting Mr F’s email responses. ZEL eventually took over from Mr F and declined RDJ’s request for family violence leave.
The Authority held that it was not reasonable for ZEL, given her personal involvement in the events leading to the leave request, to be the decision maker in respect of RGH’s family violence leave request. RGH was entitled to remedies for unjustified disadvantage in respect of this issue and was awarded $7,000 in compensation for distress and humiliation under s. 123(1)(c)(i) of the Act.
RDJ also sought payment of his family violence leave. In its discussion on proof, the Authority noted that “the bar to proof is a low one” and that “any proof” that an employee was affected by family violence would be sufficient.
The Authority here held that, based on the material provided to SGF and weighing the background, a reasonable employer would have accepted that the interactions between RDJ and ZEL constituted family violence and RDJ would have granted the leave.
If you have decided that asking for proof of family violence is necessary in considering whether to grant the leave, the proof does not need to be on an “official” looking form (such as a police report or doctor’s certificate). Text messages which demonstrate abusive language may be sufficient (as was the case here, combined with photos of physical violence). In our earlier article, we set out that a letter from a family friend may be appropriate.
Employers should consider carefully whether the person making the decision about family violence leave is best placed to do so. In RDJ v. SGF, the Authority commented that even allowing for the small size of the business, it was clearly inappropriate that the alleged perpetrator of family violence was in the position of making a decision. Employers should also ensure the person with whom employees can raise concerns of family violence is approachable and would deal with such matters with confidentiality and sensitivity.
In RDJ v. SGF, the timing of when the family violence (at least the physical aspect) occurred and when family violence leave was sought is notable. The physical incidents took place on 4 November 2020, and RDJ sought family violence leave on 17 March 2021. Importantly, s. 72C of the Holidays Act 2003 records that to be entitled for family violence leave, when the family violence occurred is irrelevant, “even if the family violence occurred before the person became an employee.”
Family violence: where to get help or refer others:
Sexual violence: where to get help or refer others:
Gwen Drewitt is a Special Counsel in the employment team at Lane Neave in Christchurch. Tamsin Woolf is a Senior Solicitor in the employment law team at Lane Neave in Wellington. This article first appeared on Lane Neave’s website on 8 October 2023.
