Ms Leyla Moghimi v Eliana Construction and Developing Group Pty Ltd

[2015] FWC 4864

[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 her partner not undertake a range of actions involving Ms Moghimi. The prohibited actions included violence, damage property, follow, publish any statements, or contact or communicate. The magistrate was informed that Ms Moghimi and her partner had a common workplace and the order was modified to require that the partner was not to “approach or remain within 3 metres” of Ms Moghimi instead of the usual 5 metre restriction in order to enable them to continue to work in the same office. Ms Moghimi agreed to this approach.

[9] Ms Moghimi gave evidence that she was unable to contact work or attend work on 19 January 2015 and 20 January 2015 because of the impact of the domestic violence on 19 January 2015, because she was in court all day on 20 January 2015 and because she did not have access to a phone because it had been taken by her partner. Ms Moghimi gave evidence that she did contact a work colleague through facebook on 19 January 2015 to tell them what had happened and asked them to tell management that she was unable to come to work.

[10] Mr Sowiha, who is a director of Eliana, gave evidence that on the morning of 19 January 2015 he was told by the head of the architecture department that he had received a text from Ms Moghimi’s partner to say that neither Ms Moghimi nor her partner would be in at work that day.

[11] On 21 January 2015 Ms Moghimi telephoned her manager Mr Yassa. Mr Yassa did not give evidence. Ms Moghimi gave uncontested evidence that she told Mr Yassa that she was able to come to work that day but that Mr Yassa told her to rest and come to work the following day. Ms Moghimi gave evidence that Mr Yassa already knew about the domestic incident and the Intervention Order. Mr Sowiha gave evidence that he was not aware of the domestic incident or the Intervention Order but that he told Mr Yassa to arrange a meeting between Mr Sowiha and Ms Moghimi on 22 January 2015.

[12] Mr Sowiha said that:

“I wanted to discuss two things with Leyla. Firstly work performance issues and why she hadn’t contacted us after she was supposed to return to work; and secondly, an attempt to mend relationships between her and her husband to ensure a harmonious work environment.” 1

[13] Ms Moghimi says that she arrived at work on 22 January 2015 at about 9.30am. Mr Sowiha said that she arrived at around 10.30am and spoke to Mr Yassa in his office. As Mr Sowiha said he was very busy that morning I am not satisfied that he actually saw when Ms Moghimi arrived.

[14] Mr Sowiha confirmed that Ms Moghimi brought gifts for her colleagues from overseas and gave them to Mr Yassa and Mr Sowiha and others when she returned to work on 22 January 2015. She says that one of her colleagues offered to swap work stations so that she would be further away from her partner in the open plan office. Ms Moghimi did not commit to this because she understood she needed to speak to Mr Yassa. Ms Moghimi says that there were some difficulties with her computer log in which were eventually resolved. Ms Moghimi spoke to Mr Yassa who said that he would speak to Mr Sowiha about what could be done about the situation in the office. Ms Moghimi says that no work was allocated to her and she was told to wait and to meet with Mr Sowiha. She says that Mr Yassa told her to wait and see what Mr Sowiha says. Mr Sowiha was busy until around 11.30 or 12 noon. Ms Moghimi says it was 12 noon and Mr Sowiha says it was around 11.30am.

[15] Ms Moghimi says that at about 11am Mr Yassa and Mr Sowiha and other managers had a meeting and she assumed her situation was discussed. Mr Sowiha says that Mr Yassa told him Ms Moghimi was upset but he says that he was not aware of her situation. I do not find it credible that Mr Yassa would have spoken to Mr Sowiha about Ms Moghimi being upset but not told Mr Sowiha about why she was upset. Furthermore I do not find Mr Sowiha’s denial that he knew about the Intervention Order to be credible given that in his own statement he says that he asked Mr Yassa to arrange the meeting with her in “an attempt to mend relationships between her and her husband”.

[16] Mr Sowiha told Ms Moghimi to come to meet with him outside the office over lunch. He says that the following occurred:

“Leyla told me that she had been fighting with her husband and had been in court to file an intervention order against him.

I asked her if he had physically attacked her. She told me that he had, many times. She told me that the intervention order specified that they needed to remain 3 metres apart and that her husband could not contact or communicate with her.

Given they work in the same department I told her that this was not possible. I told Leyla that I can’t have them both working in the office in the same department as I cannot protect her from him.

Leyla gave me an ultimatum that either her or her husband has to leave.

I said I could not help her in which case Leyla volunteered her resignation.

I also made it clear to Leyla that I was not interested in personal issues however she continually maintained that she wanted her husband to lose his job.” 2

[17] In cross examination Mr Sowiha said that after “I told Leyla that I can’t have them both working in the office in the same department as I cannot protect her from him” he suggested that Ms Moghimi could work from home. Mr Sowiha says that Ms Moghimi said that this wasn’t possible because her partner had taken everything and she didn’t have a home. Mr Sowiha also said that he told Ms Moghimi that he would not fire her partner. Mr Sowiha could not explain why he thought that Ms Moghimi should work from home rather than Ms Moghimi’s partner.

[18] In cross examination Mr Sowiha added to this evidence. He made it clear that when he says that “Leyla gave me an ultimatum that either her or her husband has to leave” the exact words were “What really makes me happy is to sack me and sack him.”

[19] Mr Sowiha gave evidence that he had the impression that Ms Moghimi intended to resign when she came to work on 22 January 2015. However, I am not satisfied that Mr Sowiha established a reasonable basis for that conclusion.

[20] In response to a question as to why he did not ask Ms Moghimi for notice if she was resigning, Mr Sowiha said that he was not present when she resigned and that only happened when she provided the resignation letter later that day. I am satisfied therefore that Mr Sowiha’s evidence is that Ms Moghimi told him that she intended to resign not that she actually resigned at the lunch meeting.

[21] I found Ms Moghimi to be a convincing witness. Ms Weisz, in house counsel for Eliana, asked Ms Moghimi for her account of what happened without reference to particular points in Ms Moghimi’s statement. Ms Moghimi gave confident and detailed evidence which were largely consistent with her statement and elaborated on her statement without any reference to her statement.

[22] Ms Moghimi gave evidence that Mr Sowiha at the meeting had said that:

● He had to terminate her employment “because it would not be safe or nice for the employment to continue.”
● “It had been decided that either my employment or the employment of (Ms Moghimi’s partner) had to be terminated, and that Mr Yassa had decided that it would be my employment that would be terminated.” 3

[23] Ms Moghimi gave evidence that Mr Sowiha wanted to talk about the details of her domestic situation and she felt uncomfortable discussing such details. Ms Moghimi says that Mr Sowiha said that “keeping you both in the office is a no”.

[24] Ms Moghimi says that she told Mr Sowiha that the decision to dismiss her was unfair and that she should not lose her job because of her partner’s violence and abuse and that she wanted to continue working.

[25] Ms Moghimi and Mr Sowiha returned to the office together after their lunch meeting. Mr Sowiha returned to work and could not give any evidence about what happened next. He later saw a copy of the resignation letter but he did not speak to Mr Spasevski about the letter or the circumstances.

[26] Ms Moghimi says that when she returned to the office she was very upset. She started to pack her things. She went to the kitchen to get a glass of water and was approached by Mr Spasevski and he said that he had heard of Mr Sowiha’s decision and that it would be easier for her to find employment if she resigned. She then went to another worker’s office who was the only woman around and explained what had happened. She thought about what Mr Spasevski had said and given that she had already been dismissed thought that she should asks for the resignation letter. Mr Spasevski then provided her with the letter and she signed it because she felt helpless and felt that she had no real choice. She asked him for a copy of the letter. She then left the office.

[27] Mr Daniel Spasevski, who was legal counsel for Eliana, sent an email to Ms Moghimi’s gmail account at 2.36pm on 22 January 2015 as follows: “Hi Leyla, As requested, please find attached a scanned copy of your signed resignation letter. I wish you all the best for the future!” The attached letter was signed by Ms Moghimi and stated that Ms Moghimi resigned from her position “effective immediately”. Mr Spasevski did not give evidence.

[28] There is no dispute and I am satisfied that:

● Eliana is a national system employer.
● Eliana is not a small business.
● Eliana employs in house counsel and persons with human resource management expertise.
● Ms Moghimi was employed for a continuous period of more than six months.
● Ms Moghimi was not dismissed for reasons of redundancy.
● Ms Moghimi received a warning letter around September 2014 for taking long lunch but otherwise received no warning concerning her performance.

[29] The following matters need to be determined:

1. Did Ms Moghimi resign her employment or was she dismissed at the initiative of the employer?

2. Did Ms Moghimi fail to notify her employer of her absence from work on 19 January and 20 January 2015? Did this amount to misconduct?

3. If Ms Moghimi was dismissed was there a valid reason for dismissal?

4. Are there other relevant matters?

5. Was Ms Moghimi unfairly dismissed?

6. If Ms Moghimi was unfairly dismissed what is the appropriate remedy?

Did Ms Moghimi resign her employment or was she dismissed at the initiative of the employer?

[30] For the reasons identified earlier I prefer the evidence of Ms Moghimi to the evidence of Mr Sowiha where they are in conflict. There are a number of important points where there is no direct evidence to contradict Ms Moghimi.

[31] Mr Sowiha gave evidence that Ms Moghimi told him that she had applied in the court for an intervention order. It is a fact that the application was made by the police and I am satisfied that Ms Moghimi would have made this clear. Mr Sowiha denied that he was aware of the Intervention Order or the domestic violence situation before his lunch time meeting on 22 January 2015. This does not sit well with his evidence that he wanted to discuss how “to mend relationships between her and her husband to ensure a harmonious work environment.”

[32] Mr Sowiha says that he made the following statement to Ms Moghimi at the meeting: “I told Leyla that I can’t have them both working in the office in the same department as I cannot protect her from him.” Considered in context I am satisfied that this is effectively telling Ms Moghimi that she can no longer work for Eliana.

[33] Mr Sowiha in cross examination confirmed that he told Ms Moghimi that he would not fire her partner. I am not satisfied that Mr Sowiha suggested that Ms Moghimi work from home but even if he did, this reinforced the message that it was the victim of domestic violence who had to be removed from the workplace not the man.

[34] Mr Sowiha clarified that Ms Moghimi raised the issue of her partner’s employment after he had made it clear to her that both of them couldn’t work in the office and her partner was not going to be moved. He says that she then said “What really makes me happy is to sack me and sack him.” This alleged statement makes sense if Ms Moghimi had already been told that she could no longer be employed; it makes no sense if Ms Moghimi had already told Mr Sowiha that she was going to resign.

[35] I find no basis to conclude that Ms Moghimi came to work on 22 January 2015 intending to resign. Ms Moghimi was in an extremely vulnerable situation. So much of her security was at risk it is unlikely that she would want to give up her job. I accept the evidence that she liked her job and it was very important to her future. She was a recent graduate and she was developing her skills and her potential portfolio at Eliana. I accept the evidence that Mr Yassa told her to wait and talk to Mr Sowiha and this explains why she did not perform productive work that morning. Mr Yassa did not give evidence.

[36] I am satisfied that Ms Moghimi was dismissed by Mr Sowiha at the lunch meeting on 22 January 2015. I accept the evidence of Ms Moghimi that Mr Spasevski later suggested it might help her employment prospects if she resigned and she did so. I do not find it at all strange that Ms Moghimi stayed at work for an hour or two after she was dismissed by Mr Sowiha. She was not accused of any misconduct or poor performance. Her only crime was to have a partner who worked in the same work place and who was the subject of a domestic violence Intervention Order. In these circumstances there is nothing unusual for an employee to take some time before leaving.

Did Ms Moghimi fail to notify her employer of her absence from work on 19 January and 20 January 2015? Did this amount to misconduct?

[37] I am satisfied that Mr Yassa told Ms Moghimi not to come into work on 21 January 2015. I am satisfied that Ms Moghimi had good reason to be absent from her employment on 19 January 2015 because she was a victim of domestic violence. I am also satisfied that she had good reason to be absent from her employment on 20 January 2015 because she was in court all day dealing with the Intervention Order. I am also satisfied that she was unable to easily contact work because her partner had taken her phone and because of the extremely stressful situation in which she found herself.

[38] I am satisfied that Ms Moghimi did tell another employee on facebook to advise management of her absence. I am also satisfied that her employer was aware of her absence and the reasons for it. I note that the employer accepts that on 19 January they were advised by Ms Moghimi’s partner of her absence. I accept the evidence of Ms Moghimi that Mr Yassa was already aware of the reasons for her absence when she spoke to him on 21 January 2015.

[39] I am not satisfied that there was any misconduct involved.

If Ms Moghimi was dismissed was there a valid reason for dismissal?

[40] I have previously decided that Ms Moghimi was dismissed and that the non-attendance at work on 19 and 20 January 2015 was not misconduct and therefore could not be a valid reason for dismissal.

[41] I am satisfied that the reason for the dismissal was because Eliana, through Mr Sowiha and/or Mr Yassa, believed that the Intervention Order meant that Ms Moghimi could no longer work in the office. I am not satisfied that this was a valid reason. Firstly, it had nothing to do with Ms Moghimi’s conduct and performance and everything to do with the conduct of another employee, Ms Moghimi’s partner. Secondly, I am not satisfied that it was impossible for the two persons involved to continue in employment.

[42] Ms Moghimi gave evidence, which I accept, that she felt safe in the open office given that there were many other work colleagues around, notwithstanding the presence of her partner.

[43] It was the intention of the court in issuing the Order to make accommodation for Ms Moghimi’s employment. The Order prevents Ms Moghimi’s partner from contacting or communicating with Ms Moghimi and also prevents him from getting another person to do it for him. This does not prevent others from communicating with Ms Moghimi but it does prevent Ms Moghimi’s partner from sending messages to Ms Moghimi through someone else. I do not see how this would prevent normal work from occurring given that the evidence is that they did not have to directly engage as part of a work project.

[44] I accept that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees. Ultimately employees have to be capable of performing the inherent requirements of their jobs. When seeking to accommodate the reasonable needs of employees the impact on the business will be a consideration. However, I am satisfied that Eliana did not explore all available options and discuss these matters over a reasonable period of time with those affected.

[45] I am not satisfied that the Intervention Order provided a valid reason for termination.

[46] There was no evidence that Ms Moghimi’s performance provided a valid reason for dismissal.

[47] There was no valid reason for dismissal related to conduct or performance.

Are there other relevant matters?

[48] I am satisfied of the following in respect to the criteria in Section 387 of the Act:

● There was no valid reason for the dismissal.
● Ms Moghimi was notified that the reason for her dismissal was because the Intervention Order meant that she could no longer work in the office. I am satisfied that she was notified of this at the time of the dismissal.
● I am not satisfied that Ms Moghimi was given an opportunity to respond to the reason for dismissal. I am not satisfied that the reason related to the capacity or conduct of Ms Moghimi. The Intervention Order was sought by the police and the conduct which caused them to act was that of her partner, not her. Any opportunity to respond was unreasonable and inadequate. I am satisfied that Mr Sowiha had made up his mind before the meeting that Ms Moghimi’s partner was to remain in employment and that Ms Moghimi could not continue to work in the office.
● Ms Moghimi was not refused a support person.
● The dismissal did not relate to unsatisfactory performance.
● The employer is of reasonable size and has specialist resources and these factors did not impact on the procedures followed in effecting the dismissal.

[49] I am satisfied that the vulnerable position faced by Ms Moghimi as a relatively recent migrant who was facing a domestic violence situation made the termination particularly harsh.

[50] There are no other relevant matters. Job Watch who represented Ms Moghimi argued that there was an element of gender or sex discrimination in her dismissal. It is not necessary to determine that matter.

Was Ms Moghimi unfairly dismissed?

[51] Taking all of these factors into account I have no hesitation in determining that Ms Moghimi was unfairly dismissed. The termination was harsh, unjust and unreasonable.

Remedy

[52] Ms Moghimi no longer seeks reinstatement because she has recently found another full time job. In all the circumstances I am satisfied that reinstatement would not be appropriate. However, I do consider that an order for compensation would be appropriate.

[53] I have considered each of the requirements in Section 392 of the Act. There was no suggestion that any order I might make would affect the viability of the enterprise. The length of service was 7 � months which is a relatively short period of employment. However, I am satisfied from the evidence that Ms Moghimi saw employment with Eliana as a long term proposition. I consider this a neutral factor in the circumstances of this case. Ms Moghimi made suitable efforts to mitigate her loss and found a new full time job from 1 June 2015. Eliana submitted that Ms Moghimi had a university email address. I accept Ms Moghimi’s explanation that she had been a sessional employee at the university and that she was still on the list but had not been offered any paid employment during the period.

[54] Ms Moghimi earned $55,000 gross per annum (inclusive of superannuation). Her new job is at the same rate. She did not earn anything between 22 January 2015 and 1 June 2015.

[55] I am not satisfied that there were any significant performance issues which may have lessened the likely period of future employment. Ms Moghimi submitted that I should find that she would have remained in employment for at least a further twelve months. I accept that the employment would have continued for a considerable period of time. However, I take into account that there are uncertainties in the industry and also the relatively short period of prior employment. I therefore estimate that Ms Moghimi would have remained in employment for a period of nine months had it not been for the dismissal.

[56] I am not satisfied that there was any misconduct and therefore I make no deduction for that reason. I also do not include any consideration for shock, distress or humiliation.
[57] Ms Moghimi has earned $8,462 during the period between the dismissal and the date of the order for compensation. She will earn a further $2,115 during the two week period between the order and the actual payment. The period from the dismissal to the date of the actual payment will be 28 weeks. During that period she would have earned $29,615 from employment with Eliana. That leaves a total of $19,038 for that period. There is no need to deduct contingencies from this amount as it is known.

[58] In the remaining 11 weeks Ms Moghimi would have earned $11,635 if she had remained in employment. I will deduct an amount of 20% from this amount due to contingencies and uncertainties leaving a total of $9,308 for that period. This leaves a total compensation amount of $28,346. The maximum compensation allowable is 26 weeks or $27,500.

[59] The amount of compensation I will order is therefore $27,500. The amount should be paid within fourteen days with appropriate taxation deducted. Eliana is at liberty to apply for a variation to the order in respect to the time period for payment. The Order is published separately.

COMMISSIONER

Appearances:

Ms S Clancy appeared for the Applicant.

Ms A Weisz appeared for the Respondent.

Hearing details:

2015

Melbourne

July 8

 1   Exhibit E1, at para 7.

 2   Exhibit E1, at paras 10 to 16.

 3   Exhibit M1.

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<Price code C, PR569519>