Termination of employee subject to domestic violence not valid

An employer was recently ordered to pay the maximum amount of compensation payable under unfair dismissal laws after it terminated an employee who was subject to domestic violence by her partner who was also a co-worker. In making the determination, the Fair Work Commission found, amongst other factors, the employer had failed to adequately explore workplace options and discuss these matters with the relevant employees.

Background

The employee was employed as a full time architectural draftsperson by Eliana Construction and Developing Group Pty Ltd (Eliana).  She was employed shortly after her graduation in June 2014 and was the only female in the design team.

The employee's domestic partner was also employed by Eliana and although the couple worked in an open plan office, there was no requirement for the employee to directly interact with her partner to complete work tasks.

Shortly after her return from annual leave which ended on 19 January 2015, the employee was subject to domestic violence inflicted by her domestic partner in their home.  

The next day, an Intervention Order was ordered against the employee's partner which included that the partner was not to approach or remain within 3 metres of the employee. The order was made with the employee's consent and instead of the usual 5 metre order, a 3 metre order was applied due to the practicalities of the common workplace.

On 22 January 2015, the employee returned to work but was not allocated any work pending a meeting with a senior manager.  The meeting occurred at lunchtime.

During the meeting the senior manager advised the employee that:

• "keeping you both in the office is a no";
• he had to terminate her employment "because it would not be safe or nice for the employment to continue"; and
• it had been decided by the employer that either her or her partner's employment had to be terminated and the relevant manager had determined it should be hers.

When the employee returned to the office, she was extremely upset and began to pack her belongings. The employee was then approached by another employee, who, during the discussion suggested it would be better for her future employment prospects is she resigned, and provided her with a resignation letter which the employee signed as "she felt helpless and felt that she had no real choice."

Subsequent to the termination, the employee lodged an unfair dismissal application with the Fair Work Commission.

Decision

The Fair Work Commission found that the:

• employee did not resign and was dismissed at the employer's initiative due to its belief that that the employee and her domestic partner could no longer work in the same office. Of note, the employee gave evidence that she felt safe working in the same office as her partner as there were other work colleagues present;
• reason for termination was not valid. Further, although there are limits to the extent which an employer can be expected to accommodate an employee's private life, that the employer did not seek to accommodate the employee's reasonable needs by exploring available options and discussing those matters over a reasonable period of time with those affected; and
• employee was not provided with an opportunity to respond to the reason for her termination and the dismissal did not relate to the employee's unsatisfactory performance.

The employee did not seek reinstatement as she had had recently obtained alternative full time employment however,  for the reasons stated above, the employee was awarded $27,500, being the maximum compensation of 26 weeks' earnings able to be awarded.

Lessons

The case highlights the impact on the workplace arising from domestic violence. As a key take away, employers should ensure where an employee is subject to domestic violence and remains capable of performing their duties, in considering its ability to accommodate the reasonable needs of the employee against the needs of the business, that it explores the options available and discusses the issues with the affected employee.

If you would like to know more about this case or the management of employees affected by domestic violence generally, please contact National Workplace Lawyers on  +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.