Is it unfair dismissal? FWC probes impact on worker's duties
The Fair Work Commission (FWC) recently dealt with a case involving allegations of unfair dismissal in a family-owned business.
The matter centered around issues of employment termination, domestic violence, and the impact of legal orders on workplace relationships.
This case highlights the challenges employers may face when personal relationships between staff members deteriorate and legal interventions occur.
The worker, an administrative assistant, claimed she was unfairly dismissed from her role at a fire protection company.
She has been employed since March 2019, primarily working from home and providing administrative support to the construction side of the business.
The employer was a relatively small family-owned and run business with about 25 employees. It provided passive fire protection services in buildings, including fire damper rectifications, fire sealing of penetrations, applying fire spray to structural and mechanical settings, and the supply and installation of fire doors and frames.
The worker's duties included creating reports and compliance orders, reviewing building penetration tests and audits to create penetration reports for sign-off, and reviewing building installation processes to create statements of installation for sign-off.
She worked largely from home using her laptop computer and did not attend the employer's office.
The case revolved around events that occurred in February 2024. Over a weekend, there was a serious physical altercation between the worker and her partner, who was also a manager in the business.
This led to a provisional apprehended domestic violence order (AVO) being issued against the worker, prohibiting her from contacting or approaching the manager or his workplace.
The worker claimed she was dismissed via text message on 25 February 2024. However, the employer denied sending such a message and provided evidence to support their denial.
The employer argued that the worker's contract was frustrated by the AVO, as it prevented her from performing her duties. They stated:
"It would simply not be possible for the [worker] to work at [the company] without having direct contact with [the manager]."
The employer emphasised that the worker's role inherently required interaction with her manager, which was no longer possible due to the AVO.
The Commission examined the evidence presented by both parties. It found the employer's testimony more credible and consistent compared to the worker's account, which changed throughout the proceedings.
The FWC considered whether the worker was dismissed within the meaning of the Fair Work Act 2009. It concluded that the employment contract was frustrated by the AVO, stating:
"[The worker’s] contract of employment with [the employer] became incapable of being performed because the circumstances in which performance was called for rendered it a thing radically different from that which was undertaken by the contract."
Even if the worker had been dismissed, the FWC said that such a dismissal would not have been harsh, unjust, or unreasonable.
The Commission explained:
"[The employer] had a sound, defensible and well-founded reason to dismiss [her]. The Violence Order prevented [the worker] from being able to perform her employment duties on an ongoing basis from 28 February 2024 and, on the evidence, it was not likely that the Violence Order would cease to operate until at least the hearing before the Local Court on 11 November 2024."
The FWC also noted that while the employer did not afford the worker procedural fairness in relation to the cessation of her employment, this was understandable given the “very fractured relationship” between the parties.
The Commission also considered that the worker had performed satisfactorily in her role for about five years, but this was outweighed by the practical impossibility of continuing the employment relationship due to the AVO.
Consequently, the FWC dismissed the worker's application for unfair dismissal relief, finding that she was not dismissed within the meaning of the Fair Work Act, and even if she had been, the dismissal would not have been unfair given the circumstances.
