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Domestic or sexual violence leave is a job-protected leave of absence. It provides up to 10 days and 15 weeks in a calendar year of time off to be taken for specific purposes when an employee or an employee’s child has experienced or been threatened with domestic or sexual violence. The first five days of leave taken in a calendar year are paid, and the rest are unpaid.

Eligibility

Employees who have been employed by their employer for at least 13 consecutive weeks are entitled to domestic or sexual violence leave if the employee or the employee’s child has experienced or been threatened with domestic or sexual violence, and the leave is taken for any of the following purposes:

  • To seek medical attention for the employee or the child of the employee because of a physical or psychological injury or disability caused by the domestic or sexual violence
  • To access services from a victim services organization for the employee or the child of the employee
  • To have psychological or other professional counselling for the employee or the child of the employee
  • To move temporarily or permanently
  • To seek legal or law enforcement assistance, including making a police report or getting ready for or participating in a family court, civil or criminal trial related to or resulting from the domestic or sexual violence

An employee is not entitled to this leave if the employee committed the domestic or sexual violence.

“Child” means a child, step-child, child under legal guardianship or foster child who is under 18 years of age.

Length of domestic or sexual violence leave

Employees are entitled to up to 10 full days of domestic or sexual violence leave every calendar year, whether they are employed on a full- or part-time basis.

There is no pro-rating of the 10-day entitlement. An employee who begins work partway through a calendar year is still entitled to 10 days during the remainder of that year.

Employees cannot carry over unused domestic or sexual violence leave days to the next calendar year. The 10 days of domestic or sexual violence leave do not have to be taken consecutively.

Employees can take domestic or sexual violence leave in part days, full days, or in periods of more than one day. If an employee takes only part of a day as domestic or sexual violence leave, the employer can count it as a full day of leave.

In cases where the employee takes part of a day, the employer still has to pay the employee for any part of the day that the employee worked, and has to include the hours worked for the purpose of determining whether overtime was worked or a daily or weekly limit on hours of work was reached.

Employees are also entitled to take up to 15 weeks of domestic or sexual violence leave within a calendar year for the purposes set out above. A “week” is defined as running from Sunday to Saturday.

The 15 weeks can be taken consecutively or separately.

The employee may take leave for periods less than a full week (for example, single days, at the beginning, middle or end of a week), but if they do, they are considered to have used up one week of their 15-week entitlement. If the employee is on leave for two or more periods within the same week (for example, on leave on Monday and Thursday of the same week), only one week of the 15-week entitlement is used up.

The employer cannot require the employee to take an entire week of leave if the employee only wants to take leave for a single day(s), cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.

Domestic or sexual violence leave pay

The first five days of domestic or sexual violence leave taken in a calendar year must be paid. The rest are unpaid. The first five days are to be paid whether the employee takes leave from the 15-week entitlement, or the 10-day entitlement.

Domestic or sexual violence pay – what is it and when is it payable?

For domestic or sexual violence leave pay, an employee is generally entitled to be paid what they would have earned had they been at work and not taken the leave. If the employee is paid fully or partly by a performance-related method (like commission only, commission plus salary, commission plus hourly rate, or piece work) then they must be paid the greater of their hourly rate, or the applicable minimum wage for the time at work they missed because they were on domestic or sexual violence leave.

If the employee missed part of a day to take the leave, the employee would be entitled to be paid any wages they actually earned during the time they were at work in addition to domestic or sexual violence leave pay.

Example:

Chantelle usually works eight hours a day from 9:00am to 5:00pm. If she takes two hours off as domestic or sexual violence leave to attend a medical appointment, she will be entitled to two hours of domestic or sexual violence leave pay, and six hours of regular earnings for the time she spent at work. The employer may count the two hours of leave as an entire day of domestic or sexual violence leave and deduct it from Chantelle’s entitlement to domestic or sexual violence leave for the year.

Calculating domestic or sexual violence pay

There are different ways to calculate domestic or sexual violence pay, depending on how the employee is paid, and whether the employee took a full day or part of a day of leave.

Employees who are paid by an hourly rate

Domestic or sexual violence pay is the hourly rate x the number of hours the employee did not work because they took the leave

Example 1:

Naila is paid $19.00/hour and missed a full day of work to take domestic or sexual violence leave. She was scheduled to work nine hours. Domestic or sexual violence leave pay: $19.00 x. 9 = $171.00

Example 2:

Paulo is paid $17.50/hour and missed the first 2.5 hours of his shift to take domestic or sexual violence leave. He normally works 8 hours in a day.

Domestic or sexual violence leave pay: $17.50 x 2.5 = $43.75 (in addition to regular earnings for the hours he worked during the rest of the day).

Employees who are paid a salary

For an employee paid by salary, paying domestic or sexual violence is generally equal to salary continuance.

If the employee took leave for a full day: salary ÷ number of days in pay period

Example:

Theresa is paid $1500.00 per bi-weekly pay period and works a five day week. Domestic or sexual violence leave pay for one day = $1500.00 ÷ 10 = $150.00.

If the employee took leave for part of the day: hourly rate (salary ÷ number of hours the employee normally works in a pay period) x number of hours taken as domestic or sexual violence leave.

Example:

Theresa is paid $1500.00 per bi-weekly pay period and works a 40-hour week. She takes four hours of leave. Hourly rate: $1500.00 ÷ 80 = $18.75/hour. Domestic or sexual violence leave pay: $18.75 x 4 = $75.00 (in addition to any regular wages earned for the part of the day that she worked).

Performance related wages

Domestic or sexual violence leave pay for an employee paid fully or partly based on their performance is the greater of the employee’s “hourly rate, if any” and minimum wage for the time the employee took for paid domestic or sexual violence leave. “Performance-related wages” can include commission, commission plus an hourly wage, piece work, or a flat-rate.

Example 1: Employee earns an hourly rate + commission

  • Raquel earns $19.00/hour plus two per cent commission on sales
  • Raquel takes 6.5 hours of domestic or sexual violence leave
  • Domestic or sexual violence leave pay: $19.00 x 6.5 = $123.50 (plus hourly wage for any hours worked + commission earned while the employee worked, if any)

Example 2: Employee paid entirely by commission

  • Francesca earns 10 per cent commission on all sales, plus expenses and a car allowance
  • Francesca is scheduled to work eight hours, makes sales of $5000 and takes three hours of domestic or sexual violence leave
  • Domestic or sexual violence leave pay: applicable minimum wage rate x 3 (in addition to $500.00 commission earned while the employee worked, if any)

Example 3: Employee is a homeworker paid by piece work

  • Paula earns $3.50 per phone call answered
  • Paula is scheduled to work 8.5 hours, works two hours, answers nine phone calls, and takes 6.5 hours of domestic or sexual violence leave
  • Domestic or sexual violence leave pay: applicable minimum wage x 6.5 (in addition to regular wages earned on the day - $3.50 x 9)

Employees who are scheduled to work overtime hours

If an employee is scheduled to work a shift which will include overtime hours, and they miss all or part of the shift to take paid domestic or sexual violence leave, the employee will be entitled to the regular hourly rate only, not the overtime rate.

Example:

Pat is paid $17.00/hour and was scheduled to work a Saturday shift of eight hours. She had already worked 44 hours in the same week. She missed her entire shift to take paid domestic or sexual violence leave.

Domestic or sexual violence leave pay: $17.00 x 8 = $136.00

Employees who are scheduled to work hours when a shift premium is paid

If an employee is scheduled to work a shift which will normally be paid at a higher rate due to a shift premium, and the employee misses all or part of the shift to take paid domestic or sexual violence leave, the employee will be entitled to the regular hourly rate only, not the regular hourly rate plus the shift premium.

Example:

Minh is paid $19.00/hour and is paid an additional $2.50/hour for working weekend shifts. She is scheduled to work a Saturday shift of nine hours and leaves after working two hours to take paid domestic or sexual violence leave.

Domestic or sexual violence leave pay: $19.00 x 7 = $133.00 (plus regular wages of $19.00+$2.50 x 2 for the hours that she worked).

If paid domestic or sexual violence leave pay is taken when an employee was scheduled to work on a public holiday

If an employee qualifies to take domestic or sexual violence leave, this will also generally constitute “reasonable cause” for the purposes of public holiday entitlements. See the public holiday chapter for more information.

If an employee agrees to work (or is required to work) on a public holiday and misses some or all of the shift to take paid domestic or sexual violence leave, domestic or sexual violence leave pay will not include “premium pay” if the employee would have earned it had they worked instead of taking the leave.

Example:

Celina works in a restaurant and is required to work on Victoria Day. She is paid the "general" minimum wage. She is scheduled to work 10 hours on the public holiday, and the employer has decided to give her premium pay for all hours worked on that day, plus public holiday pay (but no substitute day off in the future).

Celina works 6 hours of the shift and takes the rest off as paid domestic or sexual violence leave.

Entitlements

Public holiday pay + premium pay for hours worked ("general" minimum wage x 1.5 x 6 hours)

Domestic or sexual violence leave pay: $0 because she is already receiving a full day’s pay (6 hours at 1.5 = 9 hours).

Notice requirements: Advance notice

There are two lengths of domestic and sexual violence leave that can be taken within a calendar year: a 10-day period which can be taken as either individual days or in any combination up to 10 days, and a 15-week period which can be taken continuously or not.

If an employee plans to take one or more days from the 10-day period, the employee must tell the employer that they will be doing so in advance. If the employee can’t give notice, notice must be given to the employer as soon as possible after starting the leave. Notice doesn’t have to be in writing.

If an employee plans to take one or more weeks or part weeks from the 15-week entitlement, the employee must tell the employer that they will be doing so in writing before the leave is taken. If the employee can’t give notice, notice must be given to the employer in writing as soon as possible after starting the leave.

The employee does not have to use the 10-day leave first.

For both types of leave, the employee has to give notice to the employer that they are taking the leave every time the leave is taken.

An employee who does not give notice does not lose their right to the leave

Example:

Maggie wants to take domestic or sexual violence leave for one week in March to relocate herself and her children to a new apartment. She has also been called as a witness at a criminal trial in October that is scheduled to take one week.

Maggie must give notice to her employer before she takes the leave in March, and again when she takes the leave in October, unless she is able to give notice for both leaves at the same time.

Interaction with other leaves

Domestic or sexual violence, sick, family responsibility, bereavement, declared emergency, family caregiver, family medical, critical illness, child death and crime-related child disappearance are different types of leaves. The purposes of the leaves, their length, the individuals for whom they can be taken and eligibility criteria vary.

See the respective chapters of this Guide for more information on each leave.

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

Evidence

An employer may require an employee to provide evidence reasonable in the circumstances that they are eligible to take domestic or sexual violence leave. What will be reasonable in the circumstances will depend on all of the facts of any given situation, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available, and the cost of the evidence.

Rights during and at the end of domestic or sexual violence leave

Employees who take domestic or sexual violence leave are entitled to the same rights as employees who take pregnancy or parental leave. For example, an employer cannot threaten, fire or penalize in any other way an employee for taking, planning on taking, being eligible or being in a position to become eligible to take a domestic or sexual violence leave. See "Rights during pregnancy and parental leaves."