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Employment Update – September 2018 – New domestic violence leave entitlement and valid reasons for dismissal not enough

This month we look at the new family and domestic violence leave entitlements and some recent unfair dismissal cases which highlight that a valid reason for dismissal is not enough.

New family and domestic violence leave entitlement

Modern award covered employees can now take 5 days’ unpaid family and domestic violence leave each year.

The new leave entitlement:

  • applies from the first full pay period on or after 1 August 2018;
  • is available in full at the start of each 12 month period of employment;
  • does not accumulate from year to year; and
  • is not pro-rated for part time or casual employees.

Under the new provisions, an employee may take the leave if they are experiencing family and domestic violence and need to do something to deal with the impact of the violence and it is impractical for them to do it outside their ordinary hours of work.  The reasons may include making arrangements for safety, attending urgent court hearings or accessing police services.

Employees must give their employer notice of the leave as soon as practicable (which may be after the leave has started) and advise of the expected period of leave.

An employer may require evidence that the leave is taken for family and domestic violence reasons such as by a document issued by the police, a court or a support service or by a statutory declaration.

Employers must take steps to ensure information concerning the leave is treated confidentially as far as is reasonably practicable.

What should employers do?

Employers should be familiar with the new leave provisions contained in the modern awards and may need to update their policies.

Employers may also want to communicate with employees about the new entitlements, the circumstances in which the leave can be taken and employee notice requirements.

Recent unfair dismissal cases highlight the need for employers to follow a fair process when dismissing employees

Several recent decisions by the Fair Work Commission have found the dismissal of a badly behaved employee to be unfair because the employer did not provide procedural fairness during the termination process.

These decisions highlight the fact that a valid reason for dismissal is not enough.  If employers don’t also follow a fair process they may be forced to defend unfair dismissal claims and pay compensation to badly behaved, dismissed employees.

A few of the recent decisions are briefly discussed below.

Waite v Serco Australia [2018] FWC 3113

An employer dismissed a security guard for sleeping and using an iPad during her night shift.

The employee was initially told that the allegations came from a nurse at the hospital where she worked.  In a later disciplinary meeting the employee was told that it was in fact her colleague that had reported her conduct and had taken photos of her.  The employee was also denied a copy of the investigation report.

The Commission found that the employee was blindsided at the meeting and was not able to properly respond to the allegations.  The employer was ordered to pay compensation of $6,758.

Jarmain v Linfox [2018] FWC 3255

An employer dismissed a security guard after clients complained about his conduct with customers and employees.

The Commission found the dismissal was justified but that procedural issues during the investigation made the dismissal unfair.  These included not telling the employee what was being investigated before recording an interview to discuss the allegations and choosing a support person for the employee when his chosen person was unavailable.

The employer was ordered to pay compensation of $8,592

Gibbens v Commonwealth of Australia [2018] FWC 4151

A Perth airport employee was told he would be offered no further shifts, effectively terminating his employment following several complaints about his behaviour towards passengers.

Again, whilst the reasons for dismissal were valid the process followed was flawed and found to be unjust.  The Commission found that at no time did the employer expressly warn the employee that further instances of the behaviour would result in termination of his employment and ordered the employer to pay $5,278 in compensation.

Lessons for employers

These cases highlight that a valid reason for dismissal is not enough.  Employers need to afford employees procedural fairness at all stages of the termination process.

As a start, employers need to have appropriate and up to date policies and procedures in place and keep good records of all meetings and decisions.

Contact us for assistance

If you would like advice about the new family and domestic violence leave provisions, the following of a fair process when dismissing an employee or any other employment related matter, please contact us.

Lisa Aitken

Managing Director

+61 7 5413 4000

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