Pharmacy assistant unfairly dismissed for accessing unpaid domestic violence/carer’s leave
In the recent decision of Sarah Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321, the Fair Work Commission (FWC) awarded compensation to a pharmacy assistant who was unfairly dismissed after taking unapproved domestic violence/carer’s leave.
Facts
The Applicant, Ms Sarah Singh, had been employed by the Respondent, Priceline Sutherland Pty Ltd (Priceline) as a pharmacy assistant.
Ms Singh is separated from her former husband, with whom she shares a nine-year-old son. On 29 December 2022, Ms Singh’s son informed her that he did not wish to spend any more time with his father, after being dropped off by him unexpectedly at Ms Singh’s house. Ms Singh informed the Store Manager of Priceline via text message that she would be unable to attend work for a few days, as she was concerned for the safety of her son. The Store Manager of Priceline was on leave at that time, but approved Ms Singh’s emergency domestic violence leave.
On 4 January 2023, Ms Singh returned to work from her period of leave, however, she left work early as her former husband had again unexpectedly dropped her son at her home. Ms Singh was concerned for her son’s welfare as he has advised her that he was subject to physical abuse by his father. Ms Singh subsequently contacted the Police who investigated her concerns. The following day, Ms Singh texted Priceline’s management to apply for unpaid domestic violence/carers leave until 27 January 2023, to allow her to care for her son until school returned.
In response, the Priceline Store Manager advised that she was unable to approve a further request for leave while she was not at work. The Priceline Store Manager recommended Ms Singh contact the Priceline Store Owner, Mr Ackram Kalache, to approve her application for leave as a matter of urgency.
On 9 January 2023, Ms Singh texted Mr Kalache, with her leave request. Upon receiving this message, Mr Kalache telephoned Ms Singh, and informed her that her employment had been terminated. During the call, Mr Kalache cited an altercation between Ms Singh and a colleague that had occurred two months earlier as the basis for her dismissal, and stated words to the effect that he ‘should have fired [her] at the time’.
On 12 January 2023, Ms Singh was emailed a letter of termination (the Termination Letter). The Termination Letter detailed several workplace incidents involving Ms Singh dating as far back as September 2022, and culminated in Mr Kalache concluding that her behaviour was in breach of her employment obligations.
Ms Singh subsequently filed an unfair dismissal application in the FWC, asserting that she was dismissed for accessing domestic violence leave and not for the reasons provided in the Termination Letter.
Decision
Upon consideration of the relevant text message exchanges between Ms Singh and Priceline’s management, the FWC concurred with Ms Singh’s claim that her dismissal was due to her requesting unpaid domestic violence/carers leave until 27 January 2023. The FWC noted that Ms Singh had requested leave in circumstances where she had been struggling to deal with the care of her son amidst ongoing domestic violence events that were out of her control. The FWC held that, in light of these circumstances, there was no valid reason for Ms Singh’s dismissal.
The FWC found that the incidents detailed in the Termination Letter were no more than an attempt by Mr Kalache to reframe and justify the reasons for Ms Singh’s dismissal, after it had occurred.
Notably, the FWC noted that Mr Kalache, as the decision maker in Ms Singh’s dismissal, gave no evidence in the proceedings, despite being present at the hearing. The FWC inferred that Mr Kalache refrained from giving evidence as it likely would not have assisted the Priceline’s case.
The FWC also had regard to the fact that Ms Singh was not given a genuine opportunity to respond to the issues relied upon to justify her dismissal, contributing to its finding that Ms Singh’s dismissal was unfair.
Whilst the primary remedy for unfair dismissal is reinstatement, Ms Singh did not seek to be reinstated. The FWC was satisfied that compensation was instead appropriate. The FWC awarded Ms Singh six months remuneration, less a deduction for her prior misconduct. Priceline was ultimately ordered to pay Ms Singh $17,874.70 in compensation plus superannuation.
Take home messages
Employers should appreciate the importance of supporting employees experiencing domestic violence. The FWC will not look kindly on any employer failing to treat such employees with empathy and understanding.
This case emphasises the importance of having well-founded procedures and protocols in place before dismissing an employee. Employers should ensure that employees are afforded procedural fairness in conducting workplace investigations and determining outcomes, before making a decision to terminate their employment.
Should you wish to discuss any matters raised in this article, please contact please contact Lincoln Smith on + 61 8 8210 1203 or lsmith@normans.com.au, Thomas Tagirara on + 61 8 8217 1337 or ttagirara@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.
