Internal Code : MAS479
Case Study :
Unfair dismissal of domestic violence victim, 19 August 2015
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• Employee, who was domestic violence victim, dismissed
• Employer claimed it could not protect her from her domestic partner who worked in the same office
• Maximum compensation of $27K ordered
The Fair Work Commission (FWC) has ruled that a property developer unfairly dismissed a domestic violence victim, when it terminated her employment on the basis that they could not protect her from her domestic partner who worked in the same office. The employee returned one day late from a period of annual leave because she was a victim of domestic violence. She was absent from work as she spent the day in court dealing with the application for an intervention order that had been filed on her behalf by the police. She was unable to contact her employer as her husband had taken her phone and because of the stressful situation. An intervention order was granted, which stipulated that her husband was not allowed to “approach or remain within 3 metres of the victim”. When her employers were informed of the situation, they took issue with why she had not contacted them to notify the absence. The employer suggested that an attempt could be made to mend the relationship between her and her husband “to ensure a more harmonious workplace”. The employer stated that it was not possible for them to remain three metres apart working in the same office and that they were not able to protect her. Later the employer asked her to resign, on the basis that it would not be “safe or nice for the employment to continue” and a choice was made to retain her husband. A resignation letter was provided by the employer’s lawyer for the employee to sign. Commissioner Roe found no basis to conclude that the employee wished to resign, given she was already in an extremely vulnerable situation. Her absence from work was understandable as she was unable to contact her employer at that time. Her employer became aware of the reason one day later, and dismissal for non- attendance in this circumstance was not a valid reason.
Accepting there are limits to the extent to which an employer should accommodate the private lives of employees, Roe C stated that the employer should have explored more options, and engaged on further discussions over a reasonable period of time. Commissioner Roe stated that the dismissal of an employee who is relatively recent migrant in a situation of domestic violence was particularly harsh.
Blasé attitude to work no reason for dismissal, 19 August 2015
• Employee dismissed for attitude to work
• Commission found no proof of performance issues
• Compensation awarded
The Fair Work Commission found that an employer’s dismissal of an employee for his slackening and blasé attitude to work was unwarranted and therefore harsh, unjust and unreasonable.The applicant, Mr Michael Torr (the employee), was employed as a manager by the respondent, Global Viande Pty Ltd T/A Global Food and Wine (the employer). After completing a shift on 26 September 2014, the employee was handed a notice of termination. The
reasons for his dismissal included his alleged:
• slackening off in his attitude towards his work
• failure to lead by example
• blasé attitude to work in the number of hours worked in a two-week period, including his failure to adhere to start and finish times each day, and
• the condition of his workplace and paperwork not being maintained at an acceptable standard.
The employee submitted that he had received no prior written or verbal warnings before his dismissal. Commissioner Simpson was not satisfied that the employer had a valid reason to dismiss the employee on reasons related to his capacity or conduct. His Honour held that the employer had failed to provide evidence of conduct or performance-related issues that were sufficient to warrant the employee’s termination of employment. The employee was also not warned of his alleged unsatisfactory performance prior to his dismissal or provided with an opportunity to respond to the reasons related to his capacity or conduct. The employee was merely advised by his employer to “let the letter do the talking”. The Commissioner was satisfied that the employee was not provided with any procedural fairness in the termination of his employment and that the termination was therefore harsh, unjust or unreasonable. As reinstatement was considered to be an inappropriate remedy, the employee was accordingly awarded compensation in the amount of $7,826.93 plus superannuation.
Students have a choice of a case study. These case studies are available for download from BlackBoard under Assessment Task 2. This task can be done as an individual or in a group.
Assessment criteria will be identical. The first case study is based on performance management and the second one is based on the employer’s duty of care. Both are real cases from Fair Work Commission decisions in 2015.
Students please read both matters and choose one to research and report on. You can be guided by material from the required textbook or from the material on the CCH databases (available through the USC library – Wolters Kluwer CCH Intelliconnect — NB: don’t forget you have to sign in to get free access to the USC library’s resources, use the Discovery entry page on the Library’s website). You are required to have a minimum of 8 academic references. Your textbook is a potential source of references as long as you cite the appropriate reference from within the textbook, not the actual textbook. For example, the use of Nankervis et al 2014 is discouraged. Minimum use is acceptable, overuse will be penalised.
Identify a minimum 5 key recommendations for the Human Resource Management professional to design improvements to resolve workplace issues described in the case you chose. Higher grades will be awarded to the more comprehensive reports. An example of the type of issues are:
• Determine performance needs and develops a plan.
• Implement plan (activities to achieve desired performance).
• Monitor and evaluate performance.
• Adjust, improve activities.
The format of the report should be consistent with the Summers and Smith reports guidelines found on BlackBoard This resources will provide you with the necessary guidelines. Please also see the material posted under assessment for formatting [the checklist is Check List for Style Guide compliance.pdf]. A letter of transmittal is not required, nor are the authorisation details.