​Domestic violence victim sacked; ex-partner retained

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​Domestic violence victim sacked; ex-partner retained

An employer that sacked a victim of domestic violence – but retained her ex-partner – has failed to overturn a finding of unfair dismissal.

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An employer that sacked a victim of domestic violence – but retained her ex-partner – has failed to overturn a finding of unfair dismissal.

A woman obtained a domestic violence intervention order that prohibited her ex-partner from coming within three metres of her. The terms of the order were set to try to enable both parties to remain employed with the same employer.

However, the employer dismissed the woman and retained her ex-partner, resulting in a successful claim of unfair dismissal. 

The employer’s appeal against the verdict and an award of $27,500 compensation was dismissed and costs were awarded against the employer.

The woman worked as a draftsperson for a firm of architects. The employer told her it did not believe it would be safe or pleasant for both of the ex-couple to continue working in the same office, so it had to dismiss one of them, and chose her. There was no evidence that job performance issues affected the decision.

She gave evidence that she still felt safe working in the open office area, as other employees were always present. The couple seldom needed to communicate directly with each other about their work.

Technically, the employee had resigned, after following the employer’s advice that it would look better for her career if she did so rather than be dismissed. The employer therefore tried to claim that she had voluntary resigned.

However, it also claimed she had suggested the employer dismiss both employees, which a Fair Work Commission full bench found to be inconsistent with a claim the woman had voluntareed to resign. It was therefore clear the woman was dismissed.

Grounds of appeal


The employer argued that the commission’s conclusion that the woman was the victim in the couple’s dispute was an incorrect assumption not supported by evidence.

However, the Federal Court found there was clear evidence the woman was the victim. It added that there was no “public interest” reason to justify allowing an appeal to proceed and that the employer had failed to establish any errors in the original judgment. Its reason for lodging an appeal was simply that it disagreed with that judgment.

What this means for employers

  1. Employers need to comply strictly with the terms of any domestic violence intervention order that affects employees at the workplace. They have a legal duty of care to protect the safety of all employees.
  2. An employer can take into account the effect an order is likely to have on employees’ ability to perform the inherent requirements of their jobs and its impact on the operation of the business. In this case, the terms of the order were intended to permit both parties to continue working as it was deemed safe and practicable to do so. 
  3. An employer should take all the relevant evidence into account. In this case, the evidence clearly indicated the woman was the victim, so her dismissal was unfair and contrary to the intent of the intervention order.
Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113, 18/8/16
 
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