Although domestic violence is perpetrated mostly behind closed doors, thankfully, there has been an increasing awareness of it in the public space.

Studies have shown that being able to work is essential for those experiencing family violence, and that having the ability to change work patterns can give victims a sense of safety, empowerment and increased productivity.

Employers should be aware of their obligations in respect of issues that touch on domestic violence as it relates to a person’s employment.

Flexible Work Arrangements

In 2013, amendments were made to the Fair Work Act 2009 (Cth), enabling workers to request flexible working arrangements from their employers. Flexible working arrangements and the right to seek them is often assumed to be relevant to parenting, for example leaving work early to pick up children from school or daycare. However, the provisions of the Fair Work Act are much broader than only parental commitments.

Upon these amendments being made, the then Sex Discrimination Commissioner, Elizabeth Broderick, said that “These changes are of great assistance to those workers who are assisting our economy both through paid work and shouldering the responsibility, personal commitment and economic contribution of caring for others…Equally, those people who are living through the personal hell that is domestic and family violence – the vast majority of whom are women – will now have additional support when it comes to ensuring security in employment.”

Who can request Flexible Work Arrangements?

The following classes of individuals have the right to approach their employers about flexible work (as long as they have worked for the one employer for 12 months or more):

  • Parents or those who are responsible for caring for a child who is either of school age or younger;
  • Are 55 years old or more;
  • Have a disability;
  • Are recognised as a “carer” under the relevant legislation;
  • Are experiencing family or domestic violence; or
  • Provide care or support to someone who lives in their household, or is a member of their immediate family, who requires such care because of family or domestic violence.

What is required for a flexible work arrangement?

Requests for flexible working arrangements may take many different forms; however, the most common are listed below:

  • Changes to an employee’s hours of work e.g. leaving early, arriving late, or working half days;
  • Changes to the way work is arranged e.g. having a role that used to be done by one person divided between two; and
  • Varying the location at which work is done e.g. working from home, working from an alternate employer premises, working remotely in another way, etc.

Employees have to make requests for flexible working arrangements in writing, and must state what changes they are seeking and detail the reasons they are trying to change their working conditions.

What should an employer do as best practice?

The Fair Work Act requires Employers to consider an Employee’s request for a flexible working arrangement and are only able to refuse a request for it if there are “reasonable business grounds” to do so.

Examples of reasonable business grounds for refusal include cost, the inability of an employer to change other employees’ working arrangements to suit the request, impracticality, or that the requested change would significantly reduce an employee’s productivity.

Take the following example – Sarah is a full-time manager at a retail clothing store. She has recently moved away from the family home because of domestic violence and has had to enrol her son in a school that is further away from her place of work. Sarah has made a written request to the store owner stating that she wishes to vary her working arrangements so that she can arrive later at work because of the move that was required due to her home situation.

The shop Sarah works in is quite small, and traditionally she is the only assistant in the store until later in the day when another employee arrives to assist her with the lunch hour rush. Sarah’s request to arrive at work later would mean that the business owner would be required to hire additional staff at an extra cost, which the business currently cannot support.

Sarah has put her request to her store owner who has 21 days within which to respond, however, given the nature of Sarah’s request, her store owner has tried to come to a swift resolution.   The store owner tells Sarah that unfortunately she cannot hire additional staff to cover the morning so that Sarah can arrive later. Together they sit down to consider other options to assist both parties to come to arrangements that work for both Sarah and her employer.

One compromise might be that the store owner has a shop in a location closer to Sarah’s son’s school, and Sarah might wish to move there for a period until she can change her child care arrangements, or her son is old enough to be able to catch public transport to school.

There have been some criticisms levelled at the changes, arguing that it is very difficult for persons in certain situations, especially in circumstances of family violence, to disclose such issues to their employers. It is best practice for employers to reassure their employees of the confidentiality of anything that is told to them in relation to their employment, and that it will be handled sensitively and appropriately.

Unfair Dismissal?

Employers who are unable to accommodate an employee’s request for flexible working arrangements should be careful about how they respond. Being unable to change working arrangements may mean that an employee has to cease employment and can claim that an employer’s inability to adjust to their request means they were constructively dismissed.

In the case of domestic violence, the Fair Work Commission recently awarded a victim $27,000 in compensation for unfair dismissal in circumstances where the employer made no effort to accommodate her continued employment (Ms Leyla Moghimi v Eliana Construction trading as Eliana Group (2015) FWC 4864). Although in this case the woman had not made a request for flexible working arrangements, the basis of the unfair dismissal was of similar grounds – that her employer made no reasonable efforts to allow her employment to continue in circumstances where it would have been possible.

Conclusion

Should you be approached by an employee in respect of flexible working arrangements, especially in the case of domestic violence where they are particularly vulnerable and in need of support, be sure to check with a specialist employment lawyer about your responsibilities to this individual.

Next Steps

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