FWC case highlights the importance of proper procedures for dismissal

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

Sarah Singh (Applicant), a Senior Pharmacy Assistant at a Priceline retail store, had been experiencing domestic violence from her ex-husband. On 29 December 2022, the Applicant informed her Store Manager that she needed time off because she couldn't find someone to care for her son, of whom she had full custody and was a primary caregiver. The Applicant disclosed that she was worried for her son's safety and that her ex-husband had assaulted the child. She claimed this had been the latest episode in a series of incidences of physical, verbal and emotional abuse.

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

The "incident" was 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 27 October 2022.

The Owner claimed that the Applicant’s dismissal was unrelated to her leave request and instead attributed it to poor performance, disrespecting a new manager, bullying and harassment. Further, her manager 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

While the Applicant asserted her request for domestic violence leave triggered her dismissal, 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 went on to determine that the former employer did not have a valid reason for the dismissal.

In making its decision, the FWC considered texts exchanged between the Applicant, her manager and the Owner, as well as the Applicant’s uncontested evidence regarding her termination conversation with the Owner in which no misconduct allegations had been raised. The Applicant had also requested a formal termination letter which was not forthcoming until it was submitted to the FWC as part of the proceedings. Deputy President Boyce 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. While the FWC accepted that there “was some misconduct on the part of the Applicant during her employment”, 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 with Deputy President Boyce awarding her $17,874.70 plus super, having deducted 5 per cent for misconduct and 10 per centfor contingencies.

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

Key takeaways

• Family and domestic violence leave is derived from the National Employment Standards:
  • from 1 February2023, employees of non-small business employers (employers with 15 or more employees on 1 February 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 1 February 2023) can access paid leave from 1 August 2023. Until then, 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. 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. By doing so, employers can ensure that victims of domestic violence feel empowered, protected, and supported in their workplace.

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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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