Termination of Employees subject to Domestic Violence

By Adam Foster

An employer was recently ordered to pay compensation 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 the workplace. The Fair Work Commission found, amongst other things, that the employer had failed to adequately explore workplace options and discuss these matters with the relevant employees.

The employee was a full time architectural draftsperson, and was employed after her graduation in June 2014. She was the only female draftsperson in the team, and her partner also worked in the same office. Although they worked together, there was no requirement of the employee and the partner to directly interact with one another. Shortly after returning from annual leave in January 2015, the employee was subjected to domestic violence inflicted by her partner in the home. An intervention order against the employee’s partner included that the partner was not to approach or remain within three metres of the employee. This was as a consequence of the practical realities of a common workplace.

After the intervention order was made, senior management met with the employees and advised them that:

• Keeping both in the office would not work;
• It had been decided by the employer that either the employee, who was the victim of domestic violence or her partner, the alleged perpetrator, had to be terminated; and
• The employee, who was the victim of domestic violence had to be terminated because it would not be safe or nice for the employee to continue.

As a consequence of the termination, she then approached the Fair Work Commission for unfair dismissal. The Fair Work Commission held that:

1. She had not resigned and was dismissed.
2. Her reason for termination was not valid.
3. The employee was not provided with an opportunity to respond to the reason for a termination.

The employee sought and was granted the maximum penalty for 26 weeks’ earnings.

Lessons to be Learned

This case reflects the reality of domestic violence continuing to affect not just people’s personal lives but also their working lives. It is important that when domestic violence is raised in a workplace, employers act swiftly to consider how they can accommodate the needs of the employee who is subject to domestic violence. It is also an important reminder that when terminating employees, an employer must provide the employee with an opportunity to respond to the allegations that are put to them.

(See the decision of Elliana Construction and Developing Group Pty Ltd.)

If you would like to discuss employee termination further, please contact Chris Morey, Director of Dispute Resolution or Adam Foster, Associate, Dispute Resolution and Employment Law on (03) 9629 9629.