Australia: As an employer, is domestic violence any of your business?

Generally, employees believe that their private affairs are none of an employer's business, and generally, employers are happy to leave it that way however, private and work lives have been encroaching on each other for years. IT and electronic devices have blurred the lines about where and when work is done. It is well recognised that employers have a legitimate interest in an employee's actions in their own time, if they end up on Facebook or Twitter and detrimentally affect the employer. Elevated concern about drugs and alcohol and the workplace mean that testing may identify private-time drug use, with workplace consequences.

So what about domestic violence?

A number of recent enterprise agreements have included domestic violence leave provisions, in addition to standard leave entitlements. Whether such provisions should be part of awards generally is being considered as part of the Fair Work Commission's four-yearly review of modern awards, currently underway. A recent case illustrates how domestic violence may become a sharp-edged workplace issue – and how NOT to deal with it.

Leyla Moghimi, a recent migrant from Iran, worked as an architectural draftsperson for Eliana Construction and Developing Group. Ms Moghimi's partner also worked for Eliana. They worked in the same office, but didn't perform common tasks and Ms Moghimi didn't have to directly interact with her partner at work.

In the early hours of 19 December 2014, Ms Moghimi was the victim of domestic violence at the hands of her partner. Ms Moghimi attended court the next day, where a police Intervention Order was issued against her partner, preventing him from approaching or coming within three metres of her.

A few days later, Ms Moghimi returned to work, telling her employer that her partner had physically assaulted her and that an Intervention Order was in place, preventing him from being within three metres of her. The employer told her that it wasn't possible to have both working in the same department and office, as he couldn't protect Ms Moghimi from her partner. Ms Moghimi's employer told her that he wouldn't dismiss her partner, and asked whether it would be possible for her to mend her relationship with her partner so there was a harmonious work environment.

Shortly afterwards, Eliana's legal adviser notified Ms Moghimi that it would be easier for her to find a job if she resigned. Ms Moghimi asked Eliana to provide her with a resignation letter which she then signed.

Ms Moghimi brought a claim for unfair dismissal in the Fair Work Commission. Eliana argued that she'd resigned, and that if she was dismissed it was because she didn't tell Eliana that she wouldn't be at work on 19 and 20 December 2014 which constituted misconduct. Commissioner Roe found that it was unlikely that Ms Moghimi had wanted to resign and that her employment had been terminated - Eliana had been notified absence and there was no misconduct as the absence was reasonable in the context.

Commissioner Roe stated that he had "no hesitation in determining that Ms Moghimi was unfairly dismissed. The termination was harsh, unjust and unreasonable," and awarded the maximum compensation of 26 weeks' salary (in this case $27,500).

Eliana's conduct in dismissing Ms Moghimi was harsh, unjust and unreasonable because she was penalised for being the victim of domestic violence. Commissioner Roe said "there are limits to the extent to which an employer can be expected to accommodate the private lives of employees" and that "when seeking to accommodate the reasonable needs of employees, the impact on the business will be a consideration." Despite this, Eliana was found to have unfairly dismissed Ms Moghimi because it had not taken steps to investigate all (or any) available options that would enable her to remain at work.

Of course, this presents an employer with a dilemma, as action against the partner could result in a claim by him, and at that stage, the court had not decided whether or not the partner was guilty of the conduct alleged. Nevertheless, on the face of things, the Intervention Order constrained his actions, not Ms Moghimi's, as he was to keep away from her so the consequences should have been for him to deal with – as opposed to the loss of her job.

Situations like this can present employers with extremely difficult situations, but as this case shows, penalising the apparent victim of domestic violence is not the way to go.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lisa Qiu
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