Employer argued worker faced bullying and harassment allegations from colleagues
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case from a worker who said she was fired because she requested domestic violence leave.
Sarah Singh worked at a Priceline Sutherland retail store as a Senior Pharmacy Assistant on a full-time basis. Melissa Cahill is the Store Manager, responsible for various tasks such as hiring employees, setting up the shop, and managing operations.
Parul (no last name) is the Back Pharmacy Manager and second in command. The store is owned by Ackram Kalache, who is actively involved in the business and regularly visits the store. Although Singh had minimal direct interactions with Kalache during her employment, he stays informed about everything through the management team.
On 27th October 2022, Singh had a verbal altercation with another staff member in front of customers, which resulted in an official warning issued to her on 14th November 2022.
According to records, Singh is separated from her former husband and has full custody of their nine-year-old son. While she is the primary caregiver, her husband occasionally takes care of their son to allow her to attend work.
However, she has experienced various instances of domestic violence from her former husband, including threats and physical, verbal, and emotional abuse towards herself and her son.
On December 29, 2022, their son, who had just been picked up from care by her ex-husband, told Singh that he didn't want to stay with his father again. She then informed Cahill that she wouldn't be able to come to work for a few days because she didn't have anyone to look after her son on such short notice. She was also worried about her and her son's safety due to recent interactions between her son and his father.
Singh sent the following text message to Cahill to request for unpaid domestic leave:
“Hun I won’t be able to work tomorrow. For the safety of [my son] and me I need him to be with me 24/7 at this time. [My husband] has his family here from India he is refusing to hand over my son’s passport and I cannot risk anything happening to my son. [My husband] has been verbally abusive. I’ve always maintained peace with him to stop the abuse but unfortunately now that I have stood my ground it has started again. I am not risking anything for my son. Please if ok to give me until next week back my friend Sharon will be back to Sydney she can look after [my son] while I work. She is the only on [my son] feels safe with until I let my sisters know what is happening xxx”
When Singh returned to work on January 4, 2023, she had to leave early at 10:30 am. The reason was that her ex-husband had dropped off their son at her home, but her son was feeling unwell and alone.
Upon arriving home, she noticed bruises on her son's face, and he told her that his dad had attacked him. She immediately called the police. Later that evening, she went to Sutherland Police Station to provide a statement, while her son was interviewed separately.
After giving their statements, the police informed her that her husband would be arrested. Singh then found out that she would be dismissed from employment.
Allegations about employment record
The employer said that before she took leaves to take care of her son, she had been reported for poor performance, including disrespecting a new manager.
Other team members also filed a complaint “due to her constant talking about other team members in a negative way and criticising their work standards.”
She was also reported for bullying and harassment. On her employment record, the following events were recorded:
“23 December – 28 December: She had further complaints from the pharmacy team regarding her behaviour, language and her inappropriate treatment of new team members. She also had a formal complaint lodged against her regarding her bullying and harassment. She was to be issued a 2nd warning when Melissa returned from leave.
29 December: She was given 1 week of approved emergency leave to take care of her son until further care arrangements could be made due to a sensitive family matter.
5 January: She requested leave until 27 January, which due to the needs of the business was not approved. She did not return to work, taking the leave without approval and again going outside company policy and procedures. A 3rd warning would be issued for this as well.
Her behaviour was not in line with a professional Pharmacy business, and it was consistently (despite multiple interventions from management to address these issues) having a negative impact on the stores’ team morale. These issues combined resulted in her termination of employment.”
The Commission’s decision
“I find that the Applicant was dismissed because she ‘requested time off' (in the form of unpaid domestic violence and/or carer’s leave) until 27 January 2023 to enable her to care for her son until he started back at school and could be placed in after-school care,” the decision said.
“Such leave request was made in circumstances where she had been struggling to deal with (or juggle) the care of her nine-year-old son (of whom she has sole custody as a single mother) in the context of recent (and potentially on-going) domestic violence events.”
“Instead of consulting with Singh as to her request for leave, and refusing or granting the request, or coming to some other arrangement, Kalache dismissed her.”
“I find that the reason for her (because she requested leave to deal with the impacts of domestic violence and provide care for her nine-year-old son) is not sound, defensible or well-founded (i.e. it is not a valid reason for her dismissal),” the Commission added.
Ultimately, it said that the worker was not given the opportunity to respond, and there was no procedural fairness in her dismissal. Thus, the FWC said that she was unfairly dismissed.
