Employers can play an integral role in framing attitudes towards family and domestic violence. For example, Telstra’s pledge to eradicate family and domestic violence for its employees is enshrined in its Enterprise Agreement, providing 10 days paid leave to employees experiencing the effects of family violence.
More broadly, Telstra are White Ribbon Ambassadors and as such they agree to drive and promote awareness toward the prevention of violence against women and recognise the importance of engaging men in the prevention of violence against women. Telstra also has a Safe Connections Program which helps people experiencing family and domestic violence gain access to a new smart phone, pre-paid credit and information on privacy and the safe use of technology.
Critically, in a recent employee relations matter that became public, it confirmed suspension of an employee, pending a full investigation, who engaged in violence toward his partner while live streaming his gaming activities. The conduct was outside work hours, and occurred at the employee’s home. In relation to this employee’s conduct, Telstra publicly stated that “Domestic violence has no place in our community. It is totally unacceptable and needs to be eradicated”.
Employers can publicise a commitment to non-violence or abusive behaviour via internal policies, codes of conduct or role descriptions. Misbehaviour in the workplace can sometimes raise suspicion of family and domestic violence. When this is the case, it may be able to be discreetly dealt with through policies. But what if the conduct occurs away from the workplace? It can be difficult for employers to respond to out of hours conduct due to a requirement there be a relevant connection between the behaviour and the workplace. Unless the violence or abuse enters the “office” or “factory” or “worksite”, this kind of behaviour has historically been considered a “private matter”. However, there are signs of an increasingly interventionist approach arguably due to a shift in community attitudes.
A 2011 case can be contrasted with subsequent later ones. It involved a prison guard dismissed after he was convicted of three assaults which included incidents of family and domestic violence. While the Industrial Relations Commission of New South Wales remarked that the conduct was of a serious nature and abhorrent, the Commissioner took into account the employee’s unblemished work history, and decided the conviction provided no evidence the employee was not able to continue to perform his role in the same manner as before.
In a later case in 2018, a health practitioner was dismissed after he was convicted of violent behaviour toward his partner. His unfair dismissal claim was dismissed as the Fair Work Commission found that the employees conduct was of the utmost seriousness and antithetical to his role, which included running a weekly men’s group addressing issues such as mental health and family and domestic violence. Deputy President Colman also found that he had breached his contractual obligations to observe the organisation’s policies to not act violently and risked direct damage to the employer’s interest in addressing family and domestic violence in the community.
In a third case, also in 2018, a solicitor was dismissed from a public sector legal aid organisation after he was convicted of assault relating to a family and domestic violence incident at his home. He argued that this conviction was not sufficiently connected to his employment because he was not involved in his employer’s family and domestic violence programs. The Industrial Relations Commission of New South Wales found that the dismissal was fair, recognising the employer’s legitimate interest in protecting its reputation. Commissioner Sloane found that focusing on the work performed by the employee ignored the employer’s broader commitment to addressing domestic and family violence, as well as the employee’s admitted responsibility, as a senior employee, to promote awareness and prevention of domestic violence.
These latter two decisions do not suggest free reign for an employer to dismiss an employee where they have engaged in violent behaviour towards a partner or family member outside of work. There is no one size fits all approach, and appropriate action to address a situation may vary from monitoring to taking disciplinary action. In all circumstances however, it is important for employers to ensure that an employee under scrutiny is afforded procedural fairness, particularly where an employer is considering disciplinary action. But these examples also highlight the employer’s right to protect their reputation. This will particularly be the case where the employer is committed to addressing family and domestic violence in the workplace and the wider community. The question in future cases might be whether for reputational reasons alone an employer’s decision to dismiss will be upheld.
For further information about how to manage family domestic violence situations that may impact upon the workplace, and appropriate policies and contractual terms to put in place, please contact Magda Marciniak or Nicola Martin.
Nicola Martin is a Lawyer at Justitia. To view Nicola’s profile, click here.