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Unfair Domestic Violence Dismissal – Courts reject employer’s appeal

September 09, 2016

In a recent application for judicial review, the Federal Circuit Court of Australia dismissed Eliana Construction and Developing Group Pty Ltd.’s application stating that they had no basis for unfairly dismissing an employee who had suffered domestic violence by her partner, who was also employed at the same company.

The company’s reason for dismissing the employee was their perception that the intervention order issued as a result of a domestic violence incident meant she could no longer work in the office.  In July 2015, Commissioner Roe ordered the company to pay the domestic violence victim $27,500 in compensation for unfairly dismissing her.

The Commissioner found that the intervention order was in no way related to the victim’s conduct and performance and it was possible for the two persons to continue employment as the victim felt safe in the open office. The company felt no need to maintain the victim’s employment, despite the Magistrate’s Court granting an intervention order of only three feet to allow continuation of employment of both parties.

The company believed Commissioner Roe made false assumptions about the ex-partner being guilty of domestic violence. The Full Court identified that Commissioner Roe’s findings of the company dismissing the victim were true and the ex-partner was responsible for the domestic violence.

The Court’s finding was based on evidence from a meeting that took place between the victim and her manager.  In this meeting, the manager stated to the victim that he had to dismiss her as the company believed it would “not be safe or nice for the employment to continue” and therefore decided to remove her.

In their application for judicial review the company argued that the Fair Work Commission erroneously accepted the findings that the victim suffered domestic violence without substance. However, as the company “failed to establish that the Commissioner erred in that respect” there is “no basis for these challenges to the full bench decision”.

As a result, the Federal Court dismissed the appeal and ordered the company to pay the victim $30,000 in costs.

This case serves as a reminder to employers of the importance of supporting victims of domestic violence. To learn more about how you can implement policies and processes in your company to help support victims of domestic violence in the workplace, please email us or call the NRA Hotline and speak to one of our Workplace Advisors on 1800 RETAIL (738 245).

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