'I have to take my children and run away': Chef fired after being denied family violence leave

An Auckland hospitality worker told his boss he needed a week off after he and his children had to “escape their mother” following family violence.

But the company owner took that as the chef resigning after the employee texted him saying “I am not coming back brother. I have had to take my children and run away unfortunately”.

The employee, who has name suppression, had also had time off to grieve the loss of his dog, go to a festival and often didn’t turn up for his shifts.

The company owner, who also has name suppression, told the employee he had “abandoned at least 3 shifts which under your contract deems you have terminated your contract”.

But Employment Relations Authority member Matthew Piper said in a recent decision the employee was entitled to family violence leave and awarded the employee more than $13,000 in compensation and nearly $8000 in lost wages.

“[The employer’s] failure to engage further with [the employee] regarding the circumstances of his family violence issue and its decision to dismiss him for missing work when he was entitled to be away to deal with a family violence situation were not actions a fair and reasonable employer could have taken,” he said.

The employee worked at an Auckland hospitality business as a chef since 2023.

The authority heard he had a poor attendance record and had missed several shifts, which created significant operational difficulties as it was a small business.

The absence issues were discussed with the employee at the time they occurred and no disciplinary action was taken.

On February 4, 2024, his dog became unwell and was put down. He asked for time off to grieve on February 8 and 9.

He then had pre-booked time off on February 10 and 11 to attend a festival.

On February 10, before going to the festival, there was a confrontation between his current and ex-partner which he told the authority was an assault. Police were called.

Later that evening, while at the festival, his partner was again confronted by his ex-partner.

He told the authority he left the festival, picked up his children from his ex-partner’s house and did not return because he was concerned for their safety.

He took his children to his then partner’s house and they lived there for three weeks until a safer place became available.

Did the employee ‘abandon’ his employment?

On Monday, February 12, he did not show up to work.

When his employer asked where he was, he sent a text saying “I am not coming back brother. I have had to take my children and run away unfortunately. There [sic] mother is very mentally unstable. I understand I have just had time off but I have to make urgent calls as I’m taking custody of my kids.

“I understand that me not coming in puts my job at risk. At this stage I could cone [sic] back in Wednesday but I need to do things today and tomorrow to get my boys safe and OK as well as my partner. Otherwise I will have to resign instantly. Sorry mate.”

The next day the company owner asked him for confirmation as to whether he was coming back.

He responded that he had an urgent family situation and he and the kids had to “escape their mother”, there were court proceedings underway and he needed the week off to “keep my kids safe and get a protection order against my old partner” but that he would be happy to come back.

Later that evening the company owner emailed the employee saying he had volunteered his resignation because he wasn’t given the time off that he had requested without notice and noted this was not the first time this had happened.

The email went on to say “you have abandoned Mondays [sic] shift as you claim you have to runaway and hide with your children due to encounters with your EX and that you now need to take the week off as a result, be it you said you would be in on the Wednesday to work, of shifting house with your kids to escape their mother”.

The employee responded saying he had not “abandoned my employment”.

“I have let you know every step of the way of my situation and why I have not been able to attend work. If you are happy for me to return as of next week, so be it. I will be there, however if you don’t want to comply, I will just walk away.”

In their final email exchange of the evening, the owner said that the employee was to turn up the next day or that his resignation will be accepted.

The employee responded saying he could not attend work that week. He was not rostered the following week.

Piper said the employee was entitled to family violence leave in the week of February 12 and not having him back on the roster for the following week was a dismissal.

“[The employee’s] communications, when considered in their totality, cannot properly be read as him having resigned.”

Piper ruled the employee had been unjustifiably dismissed.

The employer was ordered to pay $15,000 in distress compensation to reflect the humiliation, loss of dignity and emotional harm he suffered because of his dismissal, but this was given a 10% reduction as the employer contributed to his grievances by missing work often.

The employee was also awarded $8800 in lost wages, which was lowered to $7920 because of the 10% discount.

Brianna McIlraith is a Queenstown-based reporter for Open Justice covering courts in the lower South Island. She has been a journalist since 2018 and has had a strong interest in business and financial journalism.