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Domestic Violence Orders – businesses make take reasonable steps to accommodate workers

By Kristin Ramsey12 Sep 2016

A recent decision of the Full Federal Court to uphold a 2015 decision of the Fair Work Commission highlights some of the practical difficulties employers may face when dealing with the impact of domestic violence orders in the workplace.

Ms M and her husband both worked for the same architectural firm in Victoria, in the same office and same department.

In early January 2015 Ms M was the victim of domestic violence and as a result the police issued a Family Violence Safety Notice which excluded Ms M’s husband from their home. The Ringwood Magistrates Court subsequently issued an Intervention Order against Ms M’s husband and upon becoming aware of the parties’ common employment, the Magistrate reduced the usual restriction area from 5 meters to 3 meters so that they could continue to work in the same office (albeit that Ms M’s husband could not contact her or approach or remain within 3 meters of her).

When Ms M returned to work following a 2 day absence as a result of the impact of the domestic violence and the need to attend court, she was asked to attend a meeting with one of the directors of the business.  

During the meeting, the circumstances of the Intervention Order and the restrictions associated it were discussed. Whilst the precise content of the discussion was the subject of conflicting evidence, the Commission found that the director told Ms M that he couldn’t keep both of them in the office as a result of safety issues and that out of her and her husband, Mrs M was the one that had to go.

Following the meeting, it was suggested to her (by the company’s in-house lawyer) that she resign as this would make it easier for her to get another job. As a result, Ms M signed a letter of resignation that was provided to her by the lawyer.

Ms M subsequently brought an unfair dismissal claim alleging that there was no valid reason for her dismissal. Her employer argued that Ms M had resigned and therefore had not been dismissed.

Commission Roe dismissed the employer’s argument that there was no dismissal and found that the business had terminated her employment because of its belief that the Intervention Order meant that Ms M could no longer work in the office.  Commission Roe further found the reason for dismissal was not a valid reason as:

  • it didn’t relate to Ms M’s performance or conduct – rather the conduct of another employee (Ms M’s husband); and
  • he wasn’t satisfied that the Intervention Order made it impossible for continued employment for both of them.

The Commission ultimately found that the dismissal was unfair and ordered the business to pay $27,500 in compensation (which represented 6 months’ pay and therefore was the maximum amount that could be ordered).

The business attempted to appeal the decision to the Full Bench of the Fair Work Commission and later the Federal Court, but both applications were rejected and the business was ordered to pay additional money in costs.

Key learning’s for employers

Arguably the key failing by the business in this matter was making assumptions about Ms M and her husband’s ability to continue to work in the same office and the risks Ms M would be exposed to. In addition, Ms M was effectively penalised because of actions engaged in by a co-worker (her husband), rather than as a result of her own conduct or performance.

With the increase in domestic violence orders and the prevalence of romantic relationships in the workplace, it may not be uncommon for businesses to find themselves in a similar situation where there are restrictions on the way in which employees are able to communicate and deal with each other. This decision makes it clear that employers have an obligation to take reasonable steps to accommodate the requirements of such employees.

For businesses that find themselves in this situation the recommendations are clear:

  • Carefully consider the details of the Intervention Order and whether or not they can be accommodated by the business;
  • Don’t make assumptions about what the employees involved would or would not like to happen; and
  • Explore all reasonable options and discuss them with all affected parties.

In circumstances where it is simply not possible to maintain the employment of both parties, a decision to terminate the victim in a domestic violence situation is highly likely to expose the business to legal risk and public criticism.

Moghimi v Eliana Construction T/A Eliana Group [2015] FWC 4864 (23 July 2015)