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Employee unfairly dismissed for requesting family and domestic violence leave

All employees (including part-time and casual employees) will soon have the entitlement to 10 days of paid family and domestic violence leave per year under the National Employment Standards, replacing the existing entitlement to five days of unpaid family and domestic violence leave.

All employees (including part-time and casual employees) will soon have the entitlement to 10 days of paid family and domestic violence leave per year under the National Employment Standards (NES), replacing the existing entitlement to five days of unpaid family and domestic violence leave.

The new paid family and domestic violence leave provisions came into effect on 1 February 2023 for employees of non-small business employers with 15 or more employees. For small business employers with less than 15 employees, this leave will apply from 1 August 2023.

The Fair Work Commission (FWC) was recently required to consider an employee’s request for unpaid family and domestic violence leave in the decision of Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321.

The employee was employed by Priceline Sutherland Pty Ltd (the Employer) as a Senior Pharmacy Assistant.

Throughout her employment with the Employer, the employee and her nine-year-old son, for whom she had sole custody, experienced various instances of domestic violence by her former husband (who was also the father of her son).

In or around December 2022, the employee requested time off work for a few days to care for her son following an incident which occurred while he was in his father’s care and resulted in him advising that he did not wish to stay with his father again.

Upon returning to work in early January 2023, the employee had to leave early due to a domestic violence incident involving her son and former husband, which she reported to the police.

This incident prompted the employee to call the Store Manager to request time off until the end of January 2023 so that she could care for her son until school returned from holidays.

During this phone call, the Store Manager terminated the employee’s employment, stating that he should have dismissed her after an incident that occurred in or around October 2022 where the employee received a formal warning for swearing at a colleague in front of customers.

Soon after this phone call, the employee received a termination letter which stated that she was dismissed from her employment due to regularly failing to complete her rostered shifts, taking excessive leave, poor performance and the issue of a formal warning, engaging in poor workplace behaviours, and bullying and harassing other staff members.

The employee made an unfair dismissal claim in the FWC alleging that her dismissal was harsh, unjust and unreasonable.

Having regard to the evidence, the FWC rejected the Employer’s purported reliance on the performance and conduct related reasons for the employee’s dismissal as setout in the termination letter. It found that these reasons were no more than an attempt by the Employer to reframe or otherwise justify the reasons for the employee’s dismissal.

The FWC held that the actual and operative reason for the employee’s dismissal was because she requested unpaid domestic violence and/or carer’s leave to care for her son.

The FWC stated that such leave request was made in circumstances where the employee “had been struggling to deal with (or juggle) the care of her nine-year-old son (of whom she has sole custody as a single mother) in the context of recent (and potentially ongoing) domestic violence events”.

The FWC was critical of the Employer in this regard, stating that instead of consulting with the employee as to her leave request, and refusing to grant the leave or coming to some other arrangement, it dismissed the employee on the spot.

On this basis, the FWC found that dismissing the employee for requesting leave to deal with the impacts of domestic violence and provide care for her son was not a sound, defensible and well-founded reason for dismissal.

The FWC also considered there to be “a total absence of procedural fairness” in the dismissal process, noting that the employee was not provided the opportunity to respond to the reasons for her dismissal.

It found that the Employer had gone to great lengths to justify the employee’s dismissal on the basis that she was an unreliable employee who had multiple and repeated performance and conduct issues.

The FWC said that while there may have been “some substance” to the performance and conduct allegations and acknowledging that the Employer’s frustrations were “reaching boiling point” – these factors did not negate its finding that the employee’s dismissal was harsh, unjust and unreasonable.

Therefore, the FWC held that the employee had been unfairly dismissed from her employment.

Taking into account the employee’s misconduct throughout her employment and other contingencies, and considering reinstatement to be inappropriate in the circumstances, the FWC ordered that the employee be paid compensation in the amount of $17,875.00 plus superannuation.

Lessons for employers

The entitlement to paid family and domestic violence leave forms part of the NES, meaning that it is a minimum entitlement like paid annual leave and paid personal/carer’s leave.

For most employers, the new paid entitlement to family and domestic violence leave is already in effect, and small business employers should take note that the paid leave entitlement will be applicable to their employees from 1 August 2023.

All employers must ensure that they comply with the new paid family and domestic violence leave provisions by educating those responsible for managing requests for leave, reviewing and updating its policies and procedures to ensure compliance, and implementing record-keeping arrangements to track leave taken.

If you or someone you know is experiencing, or is at risk of experiencing, domestic, family or sexual violence - call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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