Friday, 30 June 2023

FWC Finds Pharmacy Worker was Unfairly Dismissed After Making a Request for Family Domestic Violence Leave

In a recent unfair dismissal application, the Fair Work Commission (FWC) has found that the dismissal of a pharmacy assistant who requested time off to take care of her son in January 2023 amounted to an unfair dismissal.

The applicant in this matter was Ms Sarah Singh, who was employed by Priceline Sutherland Pty Ltd as a Senior Pharmacy Assistant working in NSW.

Ms Singh was solely responsible for the care of her 9-year-old son, for whom she has sole custody. Ms Singh’s former husband would occasionally care for their son to enable her to continue her employment.

After an incident in December 2022, where Ms Singh’s former husband dropped off their son, he informed her that he no longer wished to stay with his father. This prompted Ms Singh to contact her store managers informing them that she would be unable to attend work for approximately one week, as no-one else was available to care for her son.

Ms Singh later requested to take the majority of January off to care for her son after he had been allegedly abused by her husband. Ms Singh also alleged that this was only the latest example of physical, verbal and emotional abuse directed towards both of them.

The FWC said this request was made in circumstances “where she had been struggling to deal with (or juggle) the care of her nine year old son (of whom she has sole custody as a single mother) in the context of recent (and potentially on-going) domestic violence events“.

Instead of consulting with Ms Singh as to her request for leave, and refusing or granting the request, or coming to some other arrangement, the store owner dismissed her during a phone call in January 2023.

During this call Ms Singh was informed by the store owner that they could “no longer have (her) working there anymore”. The store owner also added “I should have fired you after the last incident”, referencing an earlier incident where Ms Singh received an official warning for swearing at another staff member in front of customers.

Ms Singh then made an unfair dismissal claim to the FWC alleging that the dismissal harsh, unjust, and/or unreasonable.

The Decision

Under the Fair Work Act 2009 (Cth)(Act), when determining if a dismissal is unfair, the FWC must consider whether dismissal was harsh, unjust, or unreasonable based on a range of factors, including whether there is a valid reason for dismissal, and whether procedural fairness has been afforded to the employee.

In this case, the FWC found that the reason for the dismissal was Ms Singh’s time off request, which was not a valid reason for dismissal.

Whilst the store owner sought to rely on Ms Singh’s unsatisfactory conduct as the reason for dismissal in the termination letter provided to Ms Singh, the FWC rejected this and noted that those incidents were not discussed during the phone call where Ms Singh’s employment was terminated. The FWC considered this as an attempt to “reframe or otherwise justify the reasons for the dismissal after it occurred”.

The FWC therefore found that the “operative reason for her dismissal… concerns her request for time off”.

The FWC also found that as a result of there being no valid reason for dismissal, Ms Singh wasn’t notified of such a reason before her dismissal and she had not been given a genuine opportunity to respond, meaning the dismissal was also procedurally unfair.

The FWC therefore ordered that Ms Singh be paid compensation for unfair dismissal in the amount of $17,874.70 plus 10.5% superannuation, after a 15% deduction was applied for Ms Singh’s misconduct during her employment and other contingencies.

Lessons for Employers

This case highlights the importance of ensuring employers have a valid reason for termination under the Act. Further, even if there is a valid reason for terminating an employee, if it is not the operative reason for the dismissal, and is merely being used as a means of justifying a termination after the fact, then that employer may be vulnerable to an unfair dismissal claim.

As an observation, given the reason for dismissal was found to be on the basis of Ms Singh exercising a workplace right to request family and domestic violence leave, as an alternative to unfair dismissal, Ms Singh may have also had grounds to make a ‘general protections’ claim under the Act, and seek compensation, damages and penalties from her employer. Notably, compensation in general protections claims is uncapped, unlike in unfair dismissal claims where compensation is capped at the lower of 6 months wages or half the high-income threshold.

The decision also serves as a timely reminder that employers should consider adopting an empathetic and supportive approach to supporting employees experiencing family and domestic violence, particularly in light of the new entitlement to paid leave.

Entitlement to Family and Domestic Violence Leave

As a reminder, from 1 February 2023, all employees of employers with 15 or more staff are entitled to 10 days of paid family and domestic violence leave per year under the National Employment Standards contained in the Act. These entitlements apply to full-time, part-time, and casual employees.

From 1 August 2023, employees of small business employers will also be entitled to 10 days of paid family and domestic violence leave per year.

Employers are encouraged to familiarise themselves with these obligations, as well as setting up systems to educate staff on their entitlements, and provide support to employees experiencing family and domestic violence.

Please contact HR Legal if you require any assistance with understanding your legal requirements relating to managing employees or administering family and domestic violence leave and other related supports.

Case reference: Sarah Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321 (15 June 2023)


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.