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
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
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
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
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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