FDV Leave request prompted Unfair Dismissal: FWC

A Pharmacy Assistant has been awarded thousands in compensation by the Fair Work Commission, after Deputy President Boyce determined her request to access several weeks of unpaid leave, “in the form of unpaid domestic violence and/or carer’s leave”, triggered the termination of her employment.  

The Pharmacy Assistant’s employment ended abruptly early in January, following a series of personal events that transpired over the Christmas/New Year period. Initially, on 30 December 2022, the Pharmacy Assistant was afforded “emergency domestic violence leave”, which was “fully paid for at the expense of the company” but, when the Pharmacy Assistant advised she would also be unable to work between 5 January 2023 and 27 January 2023 – to enable her to care for her young son (of whom she was primary carer and had full custody) until he returned to school and after-school care – her employer opted to terminate her employment, effective immediately, over the phone on 9 January.

Deputy President Boyce rejected the employer’s submissions that other factors, including the Pharmacy Assistant having allegedly sworn at another staff member in front of customers in October 2022, constituted the driving force behind her dismissal, saying, “in my view, the matters set out in the Termination Letter are no more than an attempt by [the employer] to reframe or otherwise justify the reasons for the [Pharmacy Assistant’s] dismissal after it occurred”. In forming this view, the Deputy President acknowledged that the business owner gave no evidence in proceedings before the Commission, despite being present and providing instructions as to the employer’s case to his representative, leading the Deputy President to infer the employer’s “failure to give evidence in these proceedings occurred because his evidence would not have assisted [his] case”. As such, Deputy President Boyce determined “the actual or operative reason for [the Pharmacy Assistant’s] dismissal (on the evidence) concerns her request for time off (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”.

In addition to finding the employer did not have a valid reason for the Pharmacy Assistant’s dismissal, Deputy President Boyce also observed “a total absence of procedural fairness” in effecting the termination. The Deputy President acknowledged that it was apparent the employer’s “frustrations” with the Pharmacy Assistant – who was painted as “an unreliable employee who had multiple and repeated performance and conduct issues” – had reached “boiling point” in December 2022 and January 2023, but assessed that, even if there was “at least some substance to some of these [concerns]”, such matters failed to outweigh a finding that the dismissal was unfair.

In settling on appropriate remedy, Deputy President Boyce concluded the Pharmacy Assistant would likely have remained employed for a further period of six months, notwithstanding that her employment was “potentially at risk”. After reducing the maximum compensation amount for the three weeks of unpaid leave the Pharmacy Assistant sought to access before her son returned to school, a further 5% for “some misconduct” during her employment, and another 10% for contingencies, Deputy President Boyce awarded the employee $17,874.70 (gross), plus superannuation.

S.S. v Priceline Sutherland Pty Ltd [2023] FWC 1321 (15 June 2023)