The Fair Work Commission recently found that a senior pharmacy assistant who was experiencing family and domestic violence, was unfairly dismissed by an employer after requesting leave until her son could return to school.
The case highlights the importance of employers understanding:
- the rights that their employees have to request leave including for dealing with the impacts of family and domestic violence; and
- employer responsibility to ensure that disciplinary and dismissal processes are carried out lawfully and appropriately.
About Family and Domestic Violence Leave
What is Family and Domestic Violence Leave?
From 1 August 2023 all employees, including casual employees, under the National Employment Standards (NES) became entitled to 10 days of paid family and domestic violence leave in a 12-month period. The laws have been in effect for non-small business employers since 1 February 2023.
When can Leave be Applied For?
“Family and domestic violence” is violent, threatening, or other abusive behaviour by a close relative of a person a member of a person’s household, or a current or former intimate partner of a person, that seeks to coerce or control the person, and causes the person harm or to be fearful.
The leave can be applied for by an employee:
- who experiences family and domestic violence;
- who needs to do something to deal with the impact of the family and domestic violence (e.g., arranging safe accommodation, attending counselling); and
- for whom it is impractical to deal with the family and domestic violence outside their ordinary hours of work
What Evidence is Required?
An employer may ask the employee to provide evidence that will satisfy a reasonable person about those matters.
Evidence may include documents issued by police or the court, family violence support service documents, and statutory declarations.
Facts of the Case
Ms. Singh was employed at a Priceline Sutherland store as a Senior Pharmacy Assistant and had been experiencing domestic violence by her former husband. In December 2022, she requested time off from work as she could not arrange care for her son.
She disclosed that she was concerned for her son’s safety, that her former husband had assaulted the child, and that there had been previously physical, verbal, and emotional abuse.
In January she requested further unpaid leave until her son could return to school. In a phone call on 9 January 2023 the Priceline Sutherland store owner, Mr. Kalache, terminated her employment stating that he “should have fired [her] after the last incident.”
The incident referred to occurred in October 2022 when she received a warning for a verbal altercation with another staff member that occurred in the presence of customers.
The Applicant requested a formal termination letter which she said was not given to her until it was submitted by the employer as part of the unfair dismissal proceeding. The letter gave various reasons for dismissal including disrespectful behaviour to other staff and speaking negatively about other staff.
The Decision
Ms. Singh brought an unfair dismissal application alleging that her request for leave until her son could return to school – which was an impact of the family and domestic violence that she had been experiencing – was the true reason for dismissal.
The Fair Work Commission accepted her argument, finding that “…the actual or operative reason for her dismissal (on the evidence) concerns her request for time off”, and that it was not a valid reason for dismissal.
The Commission also found that the reasons referred to in the termination letter were “…no more than an attempt by the [employer’s owner] to reframe or otherwise justify the reasons for the dismissal after it occurred”.
The FWC found that the Applicant’s dismissal was unfair and awarded compensation of $17,874.70 plus superannuation.
Implications
The case highlights the need for employers to:
- understand the rights of employees to request leave including for dealing with the impacts of family and domestic violence, and to meaningfully engage with requests;
- refrain from kneejerk decision-making that may result in an unfair dismissal or a breach of workplace law; and
- adopt an informed decision-making process that will help to ensure that decisions are made for lawful reasons.
*Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.