In a landmark ruling, the Fair Work Commission (FWC) awarded over $17,000 in compensation to a pharmacy worker who was unjustly fired following her request for unpaid leave due to domestic violence. The dismissal was claimed to be due to performance issues by her employer, but this was subsequently dismissed by the FWC.
The Priceline store, located in southern Sydney, ended the employment of their senior pharmacy assistant on January 9 during a phone conversation. The words of dismissal were simply, “we can no longer have you working here anymore”, with a further mention of an “incident” that should have led to her termination earlier.
This “incident”, occurring 11 weeks prior, was an alleged altercation where the assistant was accused of using inappropriate language towards a colleague in the presence of customers. This led to an official warning.
However, the termination call was preceded by a leave request from the assistant who sought time off for the rest of January. The reason? To care for her nine-year-old son, a victim of an alleged assault by her ex-husband, marking yet another episode of the physical, verbal, and emotional abuse faced by both mother and son.
In his assessment of the employer’s justification, Deputy President Gerard Boyce stated that the dismissal occurred because she asked for time off. She intended to use this time, tagged as unpaid domestic violence and/or carer’s leave, to look after her son until school resumed and after-school care could be arranged.
The Deputy President noted the assistant’s struggle as a single mother with sole custody of her child, amid recurring domestic violence incidents. Rather than discussing her leave request and potentially granting or denying it, or even exploring alternatives, the store owner dismissed her.
Evidence and Termination Letter Discrepancies
The Deputy President inferred the owner’s absence of evidence, despite being present at the hearing, as a sign that it wouldn’t have supported his claim. He further dismissed the justifications listed in the termination letter as reasons for the employee’s dismissal.
According to him, the issues mentioned in the termination letter were not part of the discussion during the termination call on January 9. He suggested that the letter seemed to be an attempt by the owner to reframe or justify the reasons for the dismissal post-factum.
“Even if it could be argued that the reasons for her dismissal included the matters mentioned in the termination letter, the actual or operative reason for her dismissal revolves around her request for time off (unpaid domestic violence and/or carer’s leave) until 27 January 2023,” he said.
Upon declaring the dismissal as unfair, the Deputy President acknowledged the assistant’s preference for compensation over reinstatement and granted her $17,874.70, plus superannuation, after deducting 15% for misconduct and contingencies.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au