In Australia, one woman is killed by her partner every week. Between 1 July 2008 and 30 June 2010, 116 women and 75 men were killed by an offender with whom they shared a domestic relationship. These statistics are alarming!
Although domestic violence usually occurs outside the workplace, it can have significant impacts inside the workplace as well. Given that employment can be a critical factor in helping victims of domestic violence to achieve independence this is an issue that needs to be addressed. Some public service employees are already entitled to paid domestic violence leave and such leave is likely to be introduced into other modern awards and in other states.
The purpose of such leave is to assist victims of domestic violence to “recover, attend court and medical appointments, seek legal advice and make alternative living arrangements without the repercussion of adverse action being taken in relation to their employment” and in a recent Fair Work decision employers were encouraged to have policies providing for such leave to send a clear message that no stigma is attached to victims of domestic violence.
Victim dismissed due to risk of domestic violence in the workplace: the FWC says no!
In another recent decision a company was held to have unfairly dismissed an employee who worked with her former partner, due to the workplace’s purported inability to facilitate both parties working in the same office.
Leyla Moghimi v Eliana Construction and Developing Group Pty Ltd  FWC 4864
On 19 January 2015, Ms Moghimi (Employee) was the victim of domestic violence at the hands of her former partner. Police attended the employee’s home and issued a Family Violence Safety Notice.
On 20 January 2015, a subsequent hearing was held and an Intervention Order was issued against the employee’s former partner. One of the prohibition actions was that the former partner was not to approach or remain within 3 metres of the employee, reduced from the usual 5 metres to enable the parties to continue to work together at Eliana Construction and Developing Group Pty Ltd (Eliana). On 21 January 2015, the employee telephoned her manager to inform him of the domestic incident and the Intervention Order.
On 22 January 2015, the employee came to work and was advised by her manager that a meeting had been arranged with a director of Eliana to discuss the employee’s non-attendance at work on 19-20 January 2015 and to ‘mend relationships between [the employee] and her husband to ensure a harmonious work environment’.
Eliana alleged that on 22 January 2015, the employee came to work with the intention to resign. Eliana’s internal legal counsel provided a letter to the employee, which she signed, to the effect that she was resigning immediately. The employee said that prior to signing the resignation letter, she had been dismissed at the meeting with the director of Eliana.
The FWC determined the relevant facts in issue were:
- Whether the employee resigned from her employment or whether she was dismissed at the initiative of the Eliana?
- Whether the employee failed to notify Eliana of her absence from work on 19 January and 20 January 2015 and, if so whether this amounted to misconduct?
- If the employee was dismissed, was there a valid reason for dismissal? and
- Was the employee unfairly dismissed?
FWC decision on unfair dismissal
Commissioner Julius Roe held that there was no basis to conclude that the employee came to work with the intention to resign on 22 January 2015 and it was accepted that the employee had been dismissed prior to signing the resignation letter. Commissioner Roe also held that Eliana was aware of the employee’s absence on 19-20 January 2015 and the reasons for her absence.
Commissioner Roe was satisfied that the reason for the employee’s dismissal was based on Eliana’s belief that the Intervention Order meant that the employee could no longer work in the same office as her former partner.
Ultimately, Commissioner Roe held that the Intervention Order did not provide a valid reason for termination and that there was no evidence that there was a valid reason for dismissal related to her purported misconduct, conduct or performance. Eliana did not explore all available options with both parties of the domestic incident. Accordingly, Eliana unfairly dismissed the employee and the termination was found to be harsh, unjust and unreasonable. Eliana was ordered to pay the maximum compensation payable to the employee, namely 26 weeks wages, despite her having been employed for only 7½ months prior to her termination. The decision was upheld on appeal.
Complying with your further obligations in relation to domestic violence victims
The above decision exemplifies the FWC’s approach to domestic violence in the workplace and how employers must take a proactive approach to facilitating victims where possible. It is clear that employers owe an additional duty of care to domestic violence victims in the workplace. Sheer refusal by an employer to accommodate a domestic violence victim is likely to result in an adverse finding against an employer.
What can you do to help victims of domestic violence?
Use this checklist to see what you are already doing and what more could be done:
- Provide flexible or varied working arrangements pursuant to a written request;
- Encourage the use by employees of available employee assistance programs;
- Provide training to managers and senior employees regarding victims of domestic violence;
- Permit extensions of restraining orders to include the workplace;
- Provide additional security to the employee, such as escorts to and from transport and changing contact details; and
- Develop policies and procedures to support victims of domestic violence and promote a better understating of domestic violence in the workplace.
If you need any assistance implementing any of these measures we are here to help.
Post by Matthew Gradidge and Sarah Jones