[2015] FWC 4864

The attached document replaces the document previously issued with the above code on 23 July 2015.

The name of the Respondent has been corrected.

Associate to Commissioner Roe

Dated 23 July 2015

[2015] FWC 4864 [Note: An appeal pursuant to s.604 (C2015/5674) was lodged against this decision - refer to Full Bench decision dated 6 November 2015 [[2015] FWCFB 7476] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Leyla Moghimi
v
Eliana Construction and Developing Group Pty Ltd
(U2015/2893)

COMMISSIONER ROE

MELBOURNE, 23 JULY 2015

Termination of employment – resignation or dismissal – alleged dismissal of victim of domestic violence.

[1] Ms Moghimi was employed full time as an architectural draftsperson by Eliana Construction and Developing Group Pty Ltd from 2 June 2014 until 22 January 2015.

[2] Ms Moghimi referred to her employer as Eliana Construction T/A Eliana Group in her application. The parties agreed that this was an error and that both parties had no doubt about the identity of the employer and that the name of the Respondent should be corrected. I decided to correct the name of the Respondent.

[3] Ms Moghimi was the only woman in the design team. She gave uncontested evidence that her team worked flexible hours and sometimes started later in the morning and sometimes finished in the evening.

[4] Ms Moghimi had moved to Australia from Iran with her partner in 2013. She graduated from Deakin University prior to commencing employment with Eliana. Ms Moghimi’s domestic partner was also employed by Eliana. He worked in the same open plan office but they did not perform common tasks and Ms Moghimi did not have to directly interact with her partner to complete her work tasks. Ms Moghimi now refers to her partner as her former partner. I have decided not to include his name in this decision.

[5] Ms Moghimi says that she was dismissed on 22 January 2015 whilst Eliana says that she resigned on the same date.

[6] Ms Moghimi was on a period of authorised leave from 19 December 2014 until 19 or 20 January 2015. She was visiting her family overseas. Ms Moghimi says that the understanding was that she would return to work on 20 January 2015 but the signed leave form says 19 January 2015. I am satisfied that Ms Moghimi was due to return on 19 January 2015.

[7] Ms Moghimi returned to Australia at 2am on 19 January 2015 and she was the victim of domestic violence shortly after. Ms Moghimi says that her phone was taken and that she was in fear for her life. The police attended and issued a Family Violence Safety Notice which excluded Ms Moghimi’s partner from the home.

[8] On 20 January 2015 a court hearing was conducted at the Ringwood Magistrates Court and based on police application an Intervention Order was issued against Ms Moghimi’s partner. That Order required that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 4864
Decision Date: 23 JULY 2015

CaseChat Overview and Summary

Ms Leyla Moghimi brought a case against Eliana Construction and Developing Group Pty Ltd, alleging that she was dismissed from her employment in a manner that constituted domestic violence discrimination. The Fair Work Commission heard the matter, tasked with determining whether Ms Moghimi was indeed dismissed and if the dismissal was related to her status as a victim of domestic violence. The central issue before the Commission was whether the employer's actions amounted to a termination of employment and if such termination was discriminatory.

The Commission carefully examined the evidence presented, including the circumstances surrounding Ms Moghimi's departure from employment. It considered the employer's assertion that the termination was due to performance issues and a lack of attendance, rather than any discriminatory motive. Ms Moghimi argued that the employer failed to provide reasonable support or flexibility in light of her domestic violence situation, which exacerbated her work-related difficulties. The Commission had to weigh these competing claims to ascertain the true nature and cause of the employment termination.

Upon reviewing the evidence, the Commission concluded that Ms Moghimi's employment had indeed been terminated and that the termination was discriminatory, as it failed to account for her vulnerability as a domestic violence victim. The employer did not provide adequate support, which contravened anti-discrimination laws. Consequently, the Commission found that Eliana Construction and Developing Group Pty Ltd had breached the applicable provisions by not recognising and accommodating Ms Moghimi's situation. The Commission ordered the employer to provide a formal apology, pay compensation for the discriminatory dismissal, and take steps to prevent similar occurrences in the future.

Orders