Posted by Maeve Doyle | 02 December 2019 | Employment & Workplace Relations
A recent unfair dismissal application in the Fair Work Commission looked at what consideration should be given to an employee who had experienced domestic violence.
Ms Murphy was dismissed from her job as a child care worker for serious conduct in October. She reacted inappropriately to a co-worker who was critical of her and with whom she did not have a good working relationship. Ms Murphy threatened her co-worker with violence by saying words to the effect of “Do you want to settle this outside?”
Earlier this year, Ms Murphy ended an abusive relationship with her ex-partner and was involved in court proceedings where personal safety intervention orders were made against both her and her ex-partner. She claimed that, as a result, she had suffered psychological injury and suffered from anxiety. This, in turn, had affected her ability to process and respond to confrontation.
Her application for unfair dismissal remedy was dismissed before a single commissioner in the FWC.
Ms Murphy was successful in appealing this decision before a full bench of the FWC on the basis that the Commissioner had not taken into account the effect of involvement in family violence had on her ability to manage conflict situations. The full court considered that it was in the public interest to grant the appeal because it raised a significant issue concerning the intersection between family and domestic violence and the workplace, and how to respond to employee conduct in circumstances where an employee has been subjected to family and domestic violence.
Ultimately, Ms Murphy was not successful in gaining any compensation because of the absence of any medical evidence regarding her mental health issues, limited evidence of her experience of domestic violence and limited evidence about medical consequences after she was dismissed.
While Ms Murphy was not successful, this case does raise issues about what an employer can reasonably do in the workplace if they are aware of mental health issues of an employee that have been caused by involvement in domestic violence.
Please contact us if you have any concerns about how to manage the conduct of employees in the workplace who have a mental health issue or have experienced domestic violence.
[Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre  FWCFB 6914]]
Maeve Doyle is a senior employment lawyer with Nexus. If you need further advice or support, she can be contacted on firstname.lastname@example.org or by telephone +612 9016 0141.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
In a decision on 8 April 2020, the FWC varied most awards. Every employee will be entitled to take up to 2 weeks’ unpaid leave if required to self-isolate. An employee and their employer may agree to the employee taking twice as much annual leave on half pay (including leave loading).
News Update - The FWC to decide on changes to Clerk’s Award tomorrow - measures include: (1) Employers can direct employees to take annual leave (2) Employees can agree to a temporary reduction of working hours (3) Employers can have a close down with one week’s notice