A Melbourne architectural and construction business has lost its bid to overturn an unfair dismissal ruling after sacking a domestic violence victim. McDonald Murholme Lawyer Trent Hancock weighed in emphasising that employers need to make better attempts to understand the position of employees who are victims of domestic violence
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Domestic violence victim told ‘keeping you both in the office is a no’
A Melbourne architectural and construction business that sacked a domestic violence victim has lost its bid to overturn an unfair dismissal ruling.
The Fair Work Commission refused Eliana Construction and Developing Group permission to appeal against the unfair dismissal ruling earlier this month.
The alleged domestic violence victim had been employed as a draftsperson at Eliana since June 2014 and her husband was also employed by the business.
“They were pretty quick to further victimise her when she had already been a victim of domestic violence.” – Trent Hancock
In fear of her life
In January there was an alleged incident of domestic violence. The woman’s phone was taken by her husband and she was left “in fear for her life”.
She obtained a Family Violence Safety Notice, which excluded her husband from the family home.
The intervention order was amended by a magistrate to allow both the woman and her husband to continue working from the same office but it specified the husband was not to “approach or remain within three metres” of her.
She gave evidence that she was comfortable with those arrangements.
Magdy Sowiha, a director of Eliana held a meeting with the woman to discuss her absence from work following the alleged domestic violence incident and “in an attempt to mend relationships between her and her husband to ensure a harmonious work environment”.
Sowiha asked the woman if her husband had physically attacked her.
“She told me that he had, many times,” Sowiha said. “She told me that the intervention order specified that they needed to remain three metres apart and that her husband could not contact or communicate with her.
“Given they work in the same department I told her that this was not possible. I told [the woman] that I can’t have them both working in the office in the same department as I cannot protect her from him.”
Sowiha told the woman he could not fire her husband and suggested she work from home.
The woman said this was not possible because her husband had taken everything and she did not have a home.
Sowiha could not explain why he asked the woman to work from home and not her husband. He said she gave him an “ultimatum” that either she or her husband had to leave, and then offered her resignation.
But the woman argued that Sowiha told her he had to sack her “because it would not be safe or nice for the employment to continue” and “keeping you both in the office is a no”.
Too much weight on family violence outside the workplace?
At first instance the court found the woman had been unfairly dismissed. However, Eliana appealed against this decision, arguing that too much weight was placed on the issue of family violence committed outside the workplace.
The Fair Work Commission refused permission to appeal noting there was no issue of public interest in this case.
It found the commissioner made a specific finding that the employee was dismissed because Eliana believed the intervention order directed at her husband meant the employee could no longer work in the office.
The Fair Work Commission found there was no issue of general application arising from these findings as they were specific to the evidence and submissions put to the commissioner.
A clear and reassuring message
Trent Hancock, employment lawyer at McDonald Murholme said it was a clear and reassuring message from the Fair Work Commission that it is prepared to protect employees from being dismissed as a result of domestic violence.
“Employers need to make better attempts to understand the position of employees who are victims of domestic violence,” Hancock said.
“In this situation they were pretty quick to further victimise her when she had already been a victim of domestic violence. It’s certainly something I think employers need to be more aware of and better prepared to deal with.”
Eliana declined to comment.
Reference: ‘Domestic violence victim told ‘keeping you both in the office is a no’, The Sydney Morning Herald, 27 November, 2015.