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Domestic violence victim found to be unfairly dismissed

An employee and her partner both worked for the same company. They worked in the same office, but did not perform the same tasks or interact to perform their tasks.

After returning to Australia from an overseas trip, the employee was subjected to domestic violence by her partner. He took her phone and she said she feared for her life.  The Police issued an order excluding the partner from the employee’s residence.

The employee was due to return from annual leave on 19 January 2015, but was unable to due to the impact of the domestic violence.  She spent 20 January in Court trying to obtain relevant court orders.  As her phone had been taken, she had difficulty in keeping her employer informed about her delay in returning to work, however the Fair Work Commission accepted that her employer was made aware of the reasons why she couldn’t attend work.

The employee returned to work on 22 January after the employer giving her 21 January off. The employee was requested to have a lunch meeting with the employer.  Commissioner Roe accepted that a Director of the employer said:

 “I told [the employee] that I can’t have them both working in the office in the same department as I cannot protect her from him.”

Commissioner Roe accepted that this statement by the director was essentially a dismissal of the employee and “reinforced the message that it was the victim of domestic violence who had to be removed from the workplace not the man.”

Commissioner Roe also accepted that another employee had suggested it might help the employee’s employment prospects if she resigned. He also noted that no performance or misconduct issues had been raised with her as a reason for the dismissal.

Accordingly, it was determined that there was no valid reason for the dismissal and the employee was awarded the maximum compensation of 26 weeks’ pay.

Lisa Aitken is the Managing Partner of Aitken Legal, an Employment Law specialist firm for Employers. The information provided is a guide only.  Liability limited by a scheme approved under professional standards legislation.

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