The Case

Ms Leyla Moghimi v Eliana Construction trading as Eliana Group (2015)

Eliana Construction hired Ms Moghimi as a draftsperson in June 2014. Ms Moghimi was in a relationship with a male employee who worked in the same office. In January 2015, Ms Moghimi was abused by her partner and the police applied for an apprehended violence order (AVO), which prevented her partner from attending the home. The AVO allowed them to work in the same office, but the male employee could not “approach or remain within 3 metres” of Ms Moghimi.

Rather than comply with the AVO, the employer dismissed Ms Moghimi, saying it could not protect her from the male employee, given they worked in the same office and department.

The Verdict

The Fair Work Commission held that the dismissal was unfair. It was through no fault of Ms Moghimi that her partner had become abusive and it was completely appropriate for an AVO to be in place.

Commissioner Roe said the employer’s actions “reinforced the message that it was the victim of domestic violence who had to be removed from the workplace”, not the perpetrator.

Commissioner Roe also held that Ms Moghimi‘s dismissal was not in any way related to her capacity or conduct.

Ms Moghimi was awarded $27,000 in compensation.

The Lesson

In circumstances in which AVOs arise between two employees in the workplace, you must assist with the compliance of the AVO and be fair to both parties. If it is viable for the business, and the employees agree, you may be able to move one of the employees to another workplace.

If the AVO restrictions do not enable both employees to work in the same workplace (and there are no other options available), you should consult with both employees (and their legal representatives and police, where relevant) to investigate whether an application can be made to the court to alter the orders. If not, then the employment contract of one of the employees (normally the perpetrator) may not be able to be fulfilled and may therefore be frustrated.

However, prior to terminating employment on the grounds of frustration of the employment contract, you should seek legal advice.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.