In a recent Fair Work Commission decision, Commissioner David Gregory held that Champions IGA lawfully terminated the employment of an employee who was subject to domestic violence. In considering the lawfulness of the dismissal the Commissioner had regard to previous attempts by the Employer to accommodate the employee’s personal circumstances.
Background
The Employee commenced employment with the Employer in 2007 and subsequently worked in several roles before her dismissal in 2018. The Employee commenced a personal relationship in 2014, following which the Employer began to hold several concerns about the Employee’s conduct, including:
failure to arrive on time for rostered shifts without providing prior notice;
unexplained absences;
leaving the store during shifts for extra breaks without notifying management; and
not working the required number of hours.
In February 2018, the Employer held a meeting with the Employee to discuss its ongoing disciplinary concerns. After it was revealed that the Employee was a victim of domestic violence, the meeting was adjourned and the Employee was provided with four weeks long service leave. The meeting was re-commenced on the Employee’s return to work, at which point she was informed of her dismissal.
Commissioner Gregory held that the Employee’s regular failures to attend work on time and her frequent absences during rostered shifts amounted to a valid reason. However, in concluding that the dismissal was not harsh, unjust or unreasonable, Commissioner Gregory made reference to the ‘extraordinary lengths’ the Employer went to over an extended period of time to support the Employee through personal issues, which included:
providing two small loans to the Employee;
funding eleven private counselling sessions to the Employee;
allowing the Employee to take her daughter to school during work time without loss of pay;
not docking the Employee’s pay when she took unauthorised breaks;
continued leniency and tolerance despite the Employee’s failure to follow reasonable and lawful directions; and
allowing the Employee to bring her daughter to work and leave work early without reducing the Employee’s pay.
During cross-examination the Employee acknowledged that she had been given ‘a large number of chances’.
Importantly, Commissioner Gregory provided:
It is impossible not to be sympathetic towards [the Employee]. However, at the same time [the Employer] has been very fair and reasonable in its dealings with her in response to conduct that extended over a prolonged period of time.
Notably, it was also provided that an Employer and the Commission must consider the surrounding circumstances where an Employee is a victim of domestic violence as an explanation for poor performance at work. However, in the situation before the Commission where an Employee is also creating a workplace health and safety issue by taking unapproved breaks and failing to inform the Employer whenever she would be late to work, dismissal of the Employee was justified. In the circumstances, Commissioner Gregory concluded that the Employer had gone ‘above and beyond’ to support the Employee and consequently, the dismissal was not harsh, unjust or unreasonable.
As an aside, the Employee raised concerns over the Employer’s absence of policies and training to deal with domestic violence. While the Employer contended that it was under no obligation to maintain a domestic violence policy, this provides an important reminder for all Employers to develop or maintain appropriate training and policies for managers and supervisors to assist Employees experiencing domestic violence.
For further information or for assistance with developing domestic violence policies for your business, please contact:
Jasmine O'Brien
Principal
Sladen Legal
T +61 3 9611 0149 l M +61 401 926 108
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: jobrien@sladen.com.au
Katherine Dennis
Senior Associate
Sladen Legal
T +61 3 9611 0151 | M +61 407 013 010
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: kdennis@sladen.com.au
