[Australia] Importance of proper dismissal procedures highlighted by F

18 Jul 2023

In Australia, a recent Fair Work Commission (FWC) case has highlighted the reasons it is essential for employers to have proper dismissal procedures in place, Mondaq reports.

In Sarah Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321, the FWC ruled in favour of a worker after she was unfairly dismissed for requesting domestic violence leave from her employer.

Ms Sarah Singh (Applicant) was a Senior Pharmacy Assistant at a Priceline retail store. Ms Singh had been experiencing domestic violence at the hands of her ex-husband. On December 29, 2022, the Applicant informed her Store Manager that she needed time off to care for her son of whom she had full custody and was a primary caregiver.

The Applicant reportedly disclosed that she had concerns for her son's safety and that her ex-husband had assaulted him. Ms Singh claimed this had been the latest episode in a series of physical, verbal and emotional abuse incidents.

The Applicant requested unpaid leave for a significant portion of January. This led to a telephone conversation on January 9, 2023, with the Priceline Sutherland store owner, Mr Ackram Kalache (Owner), with whom she had had minimal direct interaction. During the conversation, the Owner terminated the Applicant's employment stating that "[he] should have fired [her] after the last incident."

The "incident" was reportedly a reference to the official warning the Applicant received in relation to a verbal altercation (involving swearing) that she had with another staff member in front of customers on October 27, 2022.

The Owner claimed that Ms Singh's dismissal wasn’t related to her leave request. He attributed it to poor performance, disrespecting a new manager, bullying and harassment. Her manager further stated that "Sarah's behaviour was having a negative impact on the team when she came to work" and that "Sarah did not stay at work long enough for any of the managers to address her [behaviour]".

Findings

The Applicant asserted that her request for domestic violence leave triggered her dismissal, however, her former employer claimed misconduct was the primary reason for dismissal. The FWC accepted the Applicant's argument and found that ".the actual or operative reason for her dismissal (on the evidence) concerns her request for time off". The FWC reportedly went on to determine that the former employer did not have a valid reason for the dismissal.

In reaching its decision, Mondaq says the FWC considered texts exchanged between the Applicant, her manager and the Owner together with the Applicant's uncontested evidence regarding her termination conversation with the Owner in which no misconduct allegations had been raised. In addition, the Applicant had made a request for a formal termination letter which was not forthcoming until it was submitted to the FWC as part of the proceedings.

Deputy President Boyce reportedly found that the reasons referred to in the 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 harsh, unjust, and unreasonable and that the employer had not provided her with procedural fairness under section 387(h) of the Fair Work Act 2009 (Cth).

This resulted in the FWC finding that the Applicant was unfairly dismissed because she had requested leave to address domestic violence issues and care for her son. The FWC accepted that there "was some misconduct on the part of the Applicant during her employment" but it was "not satisfied on the evidence that there is a direct connection between such misconduct and the Applicant's dismissal".

The Applicant sought compensation rather than reinstatement. Deputy President Boyce awarded her $17,874.70 plus super, deducting 5 per cent for misconduct and 10 per cent for contingencies.

The FWC reportedly emphasised that the Applicant's dismissal was unjustified and lacked valid grounds. Ms Singh’s former employer had failed to engage in constructive discourse or consider alternative arrangements. By ruling in favour of the Applicant, Mondaq says the FWC emphasised the need for employers to demonstrate empathy and understanding when dealing with situations related to domestic violence.

Key takeaways for employers

Family and domestic violence leave is derived from the National Employment Standards:

from February 1, 2023, employees of non-small business employers (employers with 15 or more employees on February 1, 2023) can access 10 days of paid family domestic violence leave - including part-time and casual employees
employees employed by small businesses (employers with less than 15 employees on February 1, 2023) can access paid leave from August 1, 2023. Until this date, employees can continue to take unpaid family and domestic violence leave.

This case highlights the role employers must play in supporting employees who experience domestic violence. According to Mondaq, the FWC's decision underscores the significance of providing adequate leave policies and procedural fairness to protect employees' rights and well-being.
It is crucial for organisations to develop comprehensive domestic violence policies, raise awareness among employees and establish protocols to ensure a safe and supportive work environment. Employers can ensure that victims of domestic violence feel empowered, protected, and supported in their workplace by doing so.

Source: Mondaq

(Links via original reporting)