Can a perpetrator or accused person access FDV Leave?

With the introduction of Family and Domestic Violence (FDV) Leave on 1 February 2023, Australian workplaces are navigating the practical implications of this important legislation. Under the National Employment Standards (NES), all full-time, part-time, and casual employees are entitled to 10 days of paid FDV leave annually. This leave aims to support employees directly experiencing family or domestic violence by giving them time to attend court, access support services, or ensure their personal safety.

What about perpetrators or accused persons?

It’s important to note that this leave is only available to employees who are directly experiencing family or domestic violence themselves, not to those who may be accused or found to be perpetrators. So, individuals who are accused of being perpetrators of domestic violence are not eligible for FDV leave. This leave is specifically designed to help victims manage the personal and logistical challenges they face due to violence or abuse, such as attending court or counselling sessions, or relocating to a safe environment.

The Fair Work case study

When the leave first came out, because the legislation’s wording was somewhat ambiguous, there was a certain amount of confusion about who could access the leave. Now, the Fair Work Ombudsman (FWO) has provided a case study clarifying the matter very clearly.

In this case study, an employee named Heath, who was accused of domestic violence, did not qualify for FDV leave. Heath’s situation involved a misunderstanding with his ex-girlfriend, who accused him of stalking and sought a protection order against him. Even though Heath needed time off to attend court, he was not entitled to use FDV leave as he was not the victim of violence. You can check out the case study through the Fair Work Ombudsman for more details.

Conversely, the FWO provides another relevant case where an employee named Amy was experiencing domestic violence from a former partner. She used her FDV leave to attend police services and counselling sessions. This is a valid use of FDV leave, as Amy was dealing with the immediate impacts of violence against her, and the tasks she had to perform could not reasonably be done outside work hours.

In contrast, had Amy’s former partner been accused of being the perpetrator, they would not have been eligible for the same type of leave, even if they needed time off for legal proceedings related to the accusations. The intention of the leave is clear—it is for those harmed or in fear, not those who may be causing the harm.

Challenges for employers

As the FDV leave provision becomes more widely used, businesses are encountering complex situations that challenge their understanding of the legislation. Below are a few key areas where employers are facing difficulties:

Accusations vs. Convictions

The principle of “innocent until proven guilty” adds a layer of complexity to managing FDV leave. Employers may feel uncertain about how to handle cases where employees claim innocence but are accused of domestic violence. Although these employees still require time off for legal matters, they are not entitled to FDV leave. Employers must navigate these situations carefully, offering appropriate support without granting entitlements that aren’t covered by law.

Example: Imagine a scenario where a long-time employee, Jake, is accused of domestic violence by a partner. While Jake maintains his innocence and needs time off for court appearances, the company must balance legal obligations with workplace fairness. In such cases, employers may offer alternative leave options, such as annual leave or unpaid leave, to support the employee’s needs.

Ongoing access to FDV leave

Another question arises when determining how long employees can continue to access FDV leave. For example, if a violent incident happened years ago but an employee still needs time off to attend therapy or legal proceedings, should they continue to use FDV leave? The legislation doesn’t specify a clear timeline, leading to ambiguity in its application.

Employers should approach these situations on a case-by-case basis, considering the employee’s specific needs while maintaining compliance with legal requirements.

Example: Consider an employee, Sarah, who experienced domestic violence several years ago. Though the immediate danger has passed, she continues to access support services and therapy sessions, sometimes during work hours. Employers may question whether FDV leave remains appropriate or if another form of leave should be used. Clear communication and consistent policies can help navigate such decisions.

The financial burden on businesses

Employers, especially small and medium-sized businesses, may struggle with the financial implications of FDV leave. As this leave is fully paid, businesses are essentially absorbing the cost of an employee’s time off without any direct government support. For some companies, this is an additional financial burden, particularly if multiple employees request leave at the same time or if leave is taken repeatedly over the course of a year.

While the importance of supporting employees affected by domestic violence is unquestionable, businesses are left grappling with how to balance this financial responsibility. There’s growing discussion on whether the government should contribute to the costs associated with FDV leave, similar to how parental leave is structured.

Solutions for employers

1. Clear policies: To manage FDV leave effectively, employers should ensure they have well-documented policies in place that clearly outline eligibility criteria, privacy protections, and the process for requesting leave.
2. Training for managers: HR teams and managers should be trained to handle FDV leave requests with sensitivity and confidentiality. This is critical to maintaining trust with employees who may be experiencing trauma while ensuring compliance with the legislation.
3. Access to resources: Employers can also offer additional support by providing access to Employee Assistance Programs (EAPs) or local support services, ensuring that employees know where to turn for help.

Conclusion

FDV leave is a vital step in supporting those impacted by family and domestic violence. However, its introduction presents new challenges for employers, from managing accused persons to dealing with the ongoing financial burden. By implementing clear policies, offering compassionate support, and seeking guidance when needed, businesses can create a workplace that prioritises employee safety and well-being while remaining compliant with the law.

Written by Emily Jaksch