Notice and evidence for family and domestic violence leave
If an employee takes family and domestic violence leave, they have to let their employer know as soon as possible. This can happen after the leave has started.
Employees also need to tell their employer how long they expect the leave to last.
On this page:
Support services
1800RESPECT is the national domestic, family and sexual violence counselling, information and support service. If you or someone you know is experiencing, or at risk of experiencing, domestic, family or sexual violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
Evidence requirements
An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence. If the employee doesn't provide the requested evidence, they may not get paid the leave.
The evidence has to convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence and it’s not practical for them to do so outside of their work hours.
An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:
- the employee consents
- the employer is required to deal with the information by law, or
- it’s necessary to protect the life, health or safety of the employee or another person.
The employer can't use the information for other purposes, including to take adverse action against the employee.
Types of evidence
Types of evidence can include:
- a statutory declaration
- documents issued by the police service
- documents issued by a court, or
- family violence support service documents.
Employers can ask employees to provide evidence for as little as one day or less off work.
Example: Employee providing evidence
Michael is the manager of a food manufacturing business.
A full-time employee lets Michael know about an upcoming court date to deal with an issue relating to family and domestic violence. The employee needs to attend court on 2 work days and will need to take 2 days of paid family and domestic violence leave.
Michael asks the employee to provide evidence for the leave. The employee gives Michael documents from the court. The documents show the dates they’re required to attend court.
The employee is entitled to be paid for all the hours they would have worked on those days if they weren’t on leave. Michael must keep the information provided by the employee confidential.
Confidentiality
Employers have to take reasonable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes:
- information about the employee giving notice that they’re taking the leave
- any evidence they provide.
Employers can disclose information if:
- it’s required by law, or
- is necessary to protect the life, health or safety of the employee or another person.
Any information about an employee’s experience of family and domestic violence is sensitive. If information is mishandled, it could have adverse consequences. Employers should work with their employee to discuss and agree on how this information will be handled.
Find information and guidance about workplace privacy in our Workplace privacy best practice guide. The guide includes:
- best practice guidance on privacy principles
- obligations about providing information to third parties
- guidance on privacy in relation to email and the internet.
Source reference: Fair Work Act 2009 s.107 (3)
Tools and resources
- Employer guide to family and domestic violence leave
- Workplace privacy best practice guide
- Difficult conversations in the workplace - employee course
- Difficult conversations in the workplace - manager course
