As of 1 April 2019, the Domestic Violence – Victims’ Protection Act 2018 (“the Act”) came into force and is applicable for employers and employees all around New Zealand.
Similar to an employee’s rights to take bereavement/sick leave in a 12-month working period, the Act allows employees who are victims of domestic violence to take up to 10 days leave a year in order to deal with and attend to the effects of domestic violence abuse that they have faced (“the Leave”).
The victims will also be entitled to request short-term changes or variations to their working situations, which may include a decrease in their working hours, change of location or the types of duties undertaken. Any request for short-term changes to their employment situation can only be requested for a maximum period of up to two months. The employer must respond to any request for short-term change(s) made by an employee within 10 working days of receipt of the request.
The Leave can be taken for prior domestic violence happenings that occurred, prior to the employee’s current employment or within a specified period of time prior to the request. On this basis, it can be used to deal with domestic violence effects, no matter how long ago the abuse had occurred. The
Leave may be taken on various occasions during any 12-month period, in relation to recent or previous domestic violence incidents, and does not have to be concentrated into one use per year. This allows victims to spread the Leave out to deal with effects of one or multiple acts of domestic violence.
Should an employer deny an application for the Leave or short-term employment changes, and the employee believes this denial is on unreasonable grounds, then under the Act, the employee can make a complaint within 6 months of their request to the Ministry of Business, Innovation and Employment (MBIE) or the Human Rights Commission (if there are no internal processes).
The Act further protects domestic violence victims from suffering discrimination in the workplace on the basis that they have or are assumed to be domestic violence victims. This provision is further solidified in law by its integration into the Human Rights Act 1993, as a form of discrimination under the heading “adverse treatment in employment of people affected by domestic violence”.
It is important to note that similar to many standard employment contracts in New Zealand, the Leave can only be claimed if the employee has been employed for at least six months (unless by mutual employer/employee agreement). Furthermore, if the Leave is not taken during one year, the unused days are not able to be ‘rolled over’ into the next working year.
Proving the domestic violence in order to gain the Leave is not yet specified in the Act or in any case law. In the interim, it is likely that the Leave would be treated in a similar tact as sick/bereavement leave, but this will likely be clarified as the Act goes through its initial phases and issues arise.
Employees and employers should equally be aware of these new laws to ensure that they know their rights and obligations moving forward.
