The Fair Work Commission in King v D.C Lee & L.J Lyons  FWC 1664, has found that a law firm was harsh and unjust when it summarily dismissed an associate who had been required to attend the District Court for a hearing in relation to her ex-partner’s act of domestic violence against her.
The applicant started work with the firm on 15 December 2014. On 19 December 2014 she was the victim of domestic violence perpetrated by her ex-partner. On 23 December 2014 she advised the HR manager for the firm, and a special counsel to whom the applicant reported, of the domestic violence incident. The applicant never personally advised the principals of the firm of the domestic violence incident.
In April 2015 the applicant was dealing with a property dispute with her former partner in addition to the domestic violence charges. During this time her employer addressed concerns with her regarding her time keeping and attendance in the office.
The applicant was required to attend the final court hearing for the domestic violence incident on 23 September 2015. She advised the special counsel and HR manager that she would be at the Court on the morning of 23 September. However, on the afternoon before the hearing, the applicant was advised the matter would not be heard until the middle of the day. Another colleague asked her to deal with a brief matter in the Supreme Court on the morning of 23 September 2015, which she agreed to do. As a result, she was out of the office for most of the morning of 23 September and did not return by the time she had previously advised she would be back in the office.
When she returned to the office she was summoned to the boardroom, where the principals and the HR manager were waiting. One of the principals then informed her that he and the other principal had decided to terminate her employment, effective immediately.
The following day the applicant sent an email to the principals setting out in detail the events of 22 and 23 September 2015. She urged the principals to reconsider, but they did not change their decision.
The firm initially contended that the applicant had breached her duty to the firm by not being in her office and failing to devote ‘the whole of her time and attention to her employer’s business’ and claimed her conduct was ‘wilfully disobedient’, amounting to serious misconduct that warranted summary dismissal. However, during the hearing, the principals acknowledged that there was ‘a regrettable lack of procedural fairness’ afforded to the applicant and that she was not given an opportunity to respond to the allegations. The principals also acknowledged the way they dealt with the applicant was an ‘unfair way to treat an employee’.
The Commission found the firm’s lack of HR expertise in the area of domestic violence might have affected the dismissal process, even though an HR manager was available to consult on the proposed termination.
Despite the Commission finding that the applicant breached her obligations to the firm when she failed to tell the principals she would not be returning to the office until late in the afternoon of 23 September, the Commission found that dismissing her was harsh and disproportionate to the gravity of her misconduct and awarded the employee $11,064.28.
This case is a further reminder of the importance of procedural fairness and demonstrates that employers should be aware of the effect that domestic violence has on the workplace.
This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – April 2016. Click here to download the full newsletter.