Alexis King v D.C Lee & L.J Lyons [2016] FWC 1664 (U2015/12294). JOHNS,C. 16 MARCH 2016

As a “side-bar”, both parties in this matter sought to be represented by a lawyer. The Commissioner granted this request citing Warrell v FWC [2013] FCA 291 due to the “…complexity of the matter, [the Commission] would be assisted in the efficient conduct of the hearing…”

The irony being that the respondent is a law firm, with the applicant a previous employee of said law firm as an “Associate” with an annual remuneration package of $140,000.

The applicant in this matter was victim of domestic violence which caused her to be absent from work on occasion to prepare and attend court cases relating to criminal charges against her ex-partner and to settle property issues. She advised a small number of her work colleagues of this situation, however was reticent to advise the partners, according to the Commissioner.

“…as an educated professional woman, the applicant felt a sense of shame and embarrassment about the domestic situation in which she found herself. As a result, she had confided in only a small number of people within the office about the personal matters which were distracting her from her work. She was encouraged to tell the partners but she chose not to.”

Her employer raised issues relating her diminished work performance/productivity and time-keeping.

Following a short period of sick leave, the company moved the applicant to an office closer to the manager so that the applicant could be more closely monitored.

It was during the winding up of these proceedings that the applicant was delayed and was unable to attend to matters that she had previously committed to doing. This matter was delayed which kept out of the office for longer than expected.

Upon her return, the applicant was dismissed with “immediate effect”.

Procedurally, she was not provided with the opportunity to respond and was not provided with a reason for her dismissal. Her subsequent e-mails requesting that the firm reconsider its decision to dismiss her were of no effect.

 

 

The Commissioner concluded:

“[I am] satisfied the dismissal of the applicant was harsh. Although the applicant breached her obligations to her employer by not telling them that she would not be returning to the office by 11.00 am on 23 September 2015, the consequences for her (the loss of her employment), was harsh and disproportionate to the gravity of the misconduct [my emphasis] in respect of which the respondent acted…[finding that] the applicant’s dismissal was unfair”.

Because of the applicant’s lack of communication with the partners, the Commission reduced the amount of compensation by 50 per cent, awarding $11,064.28.

Commentary

The commissioner in this matter cited the seriousness of domestic violence and a woman’s right to be protected. However, the lack of communication with the firm’s management went against her, whilst the firm could have done better in the procedural stakes.

As a HR Manager, I would have asked (and we don’t know if this was or was not asked) whether the applicant had any issues that was affecting her work. If the answer was “no”, then the firm had every right to focus on her performance, alternatively if the answer was “yes” then reasonable accommodations ought to have been provided (eg a leave of absence).

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.