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Employment Relations Authority untangles complex family drama, says bosses entitled to request proof before granting domestic violence leave

8 Sep 2023

| Author: Vivian Mitchell

Employment Relations Act 2000 – personal grievance – constructive dismissal – family violence leave compensation for unjustified disadvantage – lost wages

RDJ v SGF [2023] NZERA 462.

 

A couple (RDJ and ZEL) co-owned a business, SGF, for several years in Hamilton. Their relationship ended in 2016 and RDJ consequentially cut his financial ties to the business. In 2019, RDJ agreed to return to work while ZEL recovered from a mental health breakdown.

RDJ and ZEL have ongoing contact due to family matters and disagreement about living arrangements for their children.

In 2020, ZEL moved to where her new partner lived. ZEL hired a friend, G, to work at the Hamilton business. ZEL later married G as “an expression of support between two women who were raising children together”, despite never being coupled with her. ZEL continued her relationship with her new partner who was a cousin of G.

In 2020, RDJ, his new partner and ZEL met at a café to discuss family matters. The discussion ended badly with ZEL biting RDJ’s partner.

When RDJ arrived at work the following day, a samurai sword, a slug gun and “adult toys” had been placed on the windowsill at work. RDJ felt threatened, but ZEL explained the items were a joke with G, and denied any intent to threaten.

ZEL called a “meeting” with RDJ and G, which turned out to be a discussion on family matters. RDJ became angry during the meeting, hitting the table and slamming the door.

ZEL later announced she would step back in as managing director. RDJ was called into a disciplinary meeting about his treatment of ZEL and was warned of serious misconduct. They agreed to keep their personal and professional relationships separate.

Two months later, RDJ wanted to leave the business but refused to resign as he wanted a pay-out to change jobs. A few weeks later, he resigned and stated his resignation was a constructive dismissal due to “bullying and inappropriate behaviour” from ZEL. He explained he suffered “unjustified disadvantage”.

RDJ arranged to return work equipment to the office but G retrieved the equipment and served him trespass notices from the office, which was connected to ZEL’s home.

RDJ asked the business for “domestic violence leave” until the end of his notice period but it was recorded as unpaid sick leave. When asked to provide evidence, RDJ cited a history of physical assaults by ZEL, text messages and the bite-mark on his partner’s arm. ZEL was directly involved with assessing RDJ’s leave request despite RDJ asking for a fair assessment.

 

Legal Reasoning

Employment Relations Authority member Robin Arthur found there was no constructive dismissal but agreed RDJ had suffered unjustified disadvantage.

Arthur recognised ZEL had used her “role and control in the employment relationship to pursue her concerns about personal family matters”. However, the totality of evidence did not support constructive dismissal.

In regard to unjustified disadvantage, Arthur found RDJ was unfairly treated when the work-related visit was used to serve trespass notices that concerned personal matters.

Arthur also found the application for domestic violence leave was unfairly assessed and that a reasonable employee would have agreed to the leave. Arthur said employers were entitled to request (as the business had done) proof that an applicant was affected by family violence. Arthur said while the statute does not establish the level of proof required, learned commentaries have suggested the bar is low.

 

Applicable principles: statutory interpretation – evidence – constructive dismissal – unjustified disadvantage – separation of personal and professional relationships – threshold for family violence leave –– compensation for unjustified disadvantage.

 

Held: SGF was ordered to pay RDL $2,230 for lost wages and $7,000 compensation for humiliation, loss of dignity and injury to feelings.

 

Vivian Mitchell is an LLB/BA graduate.

 

RDJ v SGF [2023] NZERA 462.

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