In Ms Leyla Moghimi v Eliana Construction and Developing Group Pty Ltd. (U2015/2893) [2015] FWC 4864. ROE, C. 23 JULY 2015, the applicant had migrated with her partner from their native Iran. Both obtained work with one employer. Both worked in an open plan office.

 

On returning from a short holiday to Iran to visit family, the applicant’s partner became violent and took away her possessions and evicted her from their family home.

 

The employer argued that the applicant had “resigned”, which was rejected by the FWC.

 

The FWC also found that the applicant was unfairly dismissed because, whilst offering the applicant the ability to work from home (which she was unable to do), the same offer was not put to the partner, and any event, the AVO provided for the applicant and her partner working in the same working space (subject to limitations) and the two had separate roles and were not required to interact in their daily working lives.

 

The FWC, in awarding the maximum six month’s compensation stated:

 

“I accept that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees. Ultimately employees have to be capable of performing the inherent requirements of their jobs. When seeking to accommodate the reasonable needs of employees the impact on the business will be a consideration. However, I am satisfied that Eliana did not explore all available options and discuss these matters over a reasonable period of time with those affected.

 

“I am satisfied that the vulnerable position faced by Ms Moghimi as a relatively recent migrant who was facing a domestic violence situation made the termination particularly harsh.

 

“Taking all of these factors into account I have no hesitation in determining that Ms Moghimi was unfairly dismissed. The termination was harsh, unjust and unreasonable.”

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.