Published 26 June 2016
A woman whose employment as a solicitor was terminated for repeated unexplained absences, which resulted from domestic violence, was awarded $11,064.28 in compensation after the Fair Work Commission found the dismissal was unfair.
King was employed by Lee and Lyons, a law firm, on 15 December 2014. On 19 December, King was a victim of domestic violence perpetrated by her former partner. King informed Owens, the Human Resources Manager, and Flannery, a Special Counsel who she reported to, of this incident.
During April, July and September, King was absent from the office on a number of occasions. She sometimes informed Flannery of her absences, however, on some occasions her employers were unaware of her whereaboutes. She was informed on two separate occasions that she was required to inform Flannery, or in the event that he was away, Lyons, of her whereabouts if she needed to leave.
On 22 September, King informed Flannery and Owens that she was required to go to court in relation to her domestic violence matter on 23 September at 9:30am and would probably finish at 11am. At around 5pm, King was informed that the matter was unlikely to be heard until 12 noon. She did not inform anyone of this time change. At 5:11pm, King was asked to attend court for a work matter the next morning. She agreed to attend.
On the morning of 23 September King prepared for the work court matter asked of her and attended court in relation to this matter. Following its conclusion, King attended court in relation to her domestic violence matter.
King returned to the office at around 2:15pm on 23 September and was notified that Lee and Lyons had decided to terminate her employment.
King claimed her dismissal was harsh, unjust or unreasonable because she was not informed her performance was significant enough to merit dismissal; she was not informed she was vulnerable to dismissal due to her lack of attendance during business hours; her lack of attendance was due to disadvantageous personal circumstances known by her employers, and she attempted to make up these hours by staying late or coming in early.
The Commission found Lee and Lyons had a valid reason for dismissing King because she owed contractual obligations to her employer, she was on notice about her attendance and she breached her obligations by not notifying anyone that she would not be in the office at 11am on 23 September.
Despite having a valid reason the Commission found that King was not notified of the reason for her dismissal and was given no opportunity to respond. Although King was told why she was being terminated during her dismissal, notification must be issued before any decision is taken to terminate employment, and this was not provided.
As King’s dismissal was partially due to unsatisfactory performance, her employer is required to warn her about this before taking any action to dismiss her. The Commission found King had not been warned as she was not told in a clear and unambiguous manner that her job was in jeopardy.
The Commission noted that Lee and Lyons did not seek, or ignored, advice from their Human Resources manager as to King’s dismissal.
The Commission considered the shame of the applicant in relation to the domestic violence incident, her continued effort to juggle the demands of her job and the impact the dismissal had in determining whether the dismissal was harsh, unjust or unreasonable.
Ultimately the Commission found the dismissal was ‘harsh and disproportionate to the gravity of the misconduct in respect of which the respondent acted’. The Commission ruled reinstatement was not appropriate given the loss of trust and confidence and the fact that the law firm King was employed by was no longer trading.
The Commission ordered a compensation of $11,064.28 to be payed to King. Notably, this amount was awarded after it was found that a 50% reduction in compensation was appropriate. This was due to what was determined to be King’s misconduct in not having communicated appropriately with her employer in relation to her absence, when she was on notice that this was required.