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Domestic violence victim’s sacking over work absences found to be unfair: lack of HR expertise cited

The FWC has found a lack of HR expertise could have been a factor after a law firm unfairly dismissed a domestic violence victim for repeated unexplained absences.

The firm terminated her employment for her failure to obtain the partners' permission for a part-day absence in September last year or inform them of her whereabouts when she was attending the District Court to finalise her own action over a December 2014 domestic violence incident.

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The Commissioner found the firm's lack of HR expertise might have affected the dismissal process.

He said that while a HR manager was available, "one can only assume that as a human resources professional she must have been horrified at the summary way in which the [associate's] employment was terminated."

Despite the Commissioner finding the associate breached her obligations to the firm when she failed to tell the partners she would not be returning to the office until late that afternoon, he said dismissing her was harsh and disproportionate to the gravity of her misconduct.

He agreed with the partners that there was "a regrettable lack of procedural fairness" afforded to the associate and she was not given an opportunity to respond to the allegations. The partners acknowledged this was an "unfair way to treat an employee".

The partners contended that they dismissed the associate for her poor performance, time management issues — including with the recording of her billable hours — failure to provide updates about her client management and unexplained absences. They said that the associate had breached her duty to the firm by not being in her office and failing to devote "the whole of her time and attention to her employer's business" and claimed her conduct was "wilfully disobedient", amounting to serious misconduct that warranted summary dismissal.

This was particularly so given she was counselled about notifying the partners of when she was leaving the office in the days leading up to her dismissal.

But the associate, who had only recently completed a six-month probation after starting on a remuneration package of $140,000 a year, argued she wasn't told her performance, in terms of meeting deadlines and meeting client service standards, was of a significant magnitude to warrant dismissal.

While the associate accepted there were issues with her poor attendance during ordinary business hours, she was not told it might put her employment in jeopardy.

In one performance review meeting, it was confirmed that there were no issues about the applicant’s technical ability as a lawyer but there were concerns about her ability to meet deadlines. There was also a concern expressed about the need for her to increase her “Face time”.

She also said she notified the firm about the "disadvantageous personal circumstances" that contributed to her attendance issues, but that she made attempts to recover the lost hours by working late or starting early.

The associate said that she had informed the firm's HR manager and a senior lawyer that her ex-partner was violent towards her and that this had led to further disputes including over a property they had purchased together.

She said that she would ordinarily advise her administrative assistant about her whereabouts.

In April last year the associate attended a District Court criminal hearing of charges against her ex-partner. This matter required her to attend court again in July and September last year, as did the property settlement.

But following those absences, a period of sick leave and a meeting with HR, the firm moved the associate to an office closer to one of her supervising partners to "ensure closer monitoring of her attendance".

In September last year the associate attended the District Court to finalise the domestic violence case that she had already reported to firm. She said that it was "likely to finish at about 11am" and that she expected to return to the office at that time.

However, the District Court matter was not heard until later that day, which prevented her from returning to the office on time. She returned at around 2.15pm whereupon she was summoned to the boardroom where the partners and HR Manager were waiting for her. At this point, the applicant was informed that the partners had decided to terminate her employment effective immediately.

While the associate urged the partners to reconsider, they ignored her pleas.

As the partners have since ceased trading, the Commissioner accepted that reinstatement was inappropriate and that it was likely the associate's employment would have continued up until that period if it were not for her dismissal.

The Commissioner also reduced the compensation payable due to her relatively short service – she was awarded a sum of approximately $11,000. He added that while the domestic violence incident provided an explanation for the associate's failure to properly communicate her whereabouts, this did not fully excuse her conduct, noting that it wouldn't have taken much time to email or call the firm to inform it of the delay. It was fair that the associate bear some responsibility for this failure to communicate, he said.

The Commissioner added that paid domestic and family violence leave entitlements, through policy or enterprise agreements, should be "encouraged".

Unfair dismissal cases are costly in terms of time, monetary cost and reputation. iHR Australia provides sound and practical advice and support for organisations and employers dealing with high risk Human Resource, workplace relations and industrial relations issues, including the matter of Applying Leave Provisions.

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