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Employment and Migration Blog

Jurisdictional Objection Fails due to an Employee’s Family & Domestic Violence Situation

Posted by Shanni Zoeller on 21 Oct 2020

Recently, an applicant was successful in her out of time application because she was experiencing domestic violence and hardship.

In Voto v Adairs Retail Group Pty Ltd [2020] Ms Voto was terminated from her employment, via email, on 28 January 2020. Ms Voto submitted to the Commission that she did not become aware of the dismissal until 5 March 2020, when she finally checked her email, making her unfair dismissal application 36 days beyond the 21 day time period.

Ms Voto was employed by Adairs as a Retail Team Member for approximately two years.

In October 2019, Adairs had commenced an investigation into Ms Voto’s alleged breaches of company policy and procedure relating to processing personal sales, discounts and laybys. As part of the investigation, Ms Voto was suspended with pay, pending the outcome of the investigation. During the suspension, Ms Voto made a complaint about bullying and harassment by her manager. This was in addition to a previous complaint which had not been addressed.

In November 2019, Ms Voto was invited to attend a meeting to discuss the complaint. There was some backwards and forwards with additional allegations and requests for further information by Ms Voto and Adairs. During this process, Ms Voto was supported by her union representative. Ultimately, the investigation concluded and resulted in Ms Voto being issued with a show cause invitation.

Ms Voto provided Adairs with a medical certificate in early December 2019, indicating that she was unable to respond to the show cause allegations because she was unfit for work. Adairs agreed to delay the show cause process until Ms Voto was fit to return to work.

In January 2020, Adairs reached out to Ms Voto requesting an updated medical certificate and/or response to the show cause allegations. Ms Voto did not respond and Adairs terminated her employment on 28 January 2020, via email.

During the period Ms Voto took personal leave, as she was experiencing “extreme hardship” and her “personal situation was volatile and quite dire due to domestic violence inhibiting her capacity to respond effectively”.

From December 2019 to January 2020, Ms Voto was homeless, living in a women’s refuge and someone stole her vehicle and its contents which included her laptop, cash and prescription medication. Accordingly, Ms Voto did not have access to internet and was unable to communicate effectively with Adairs. As soon as Ms Voto became aware of her termination, she reached out to her union representative who lodged the unfair dismissal application on her behalf.

Adairs raised a jurisdictional objection on the basis that the application was out of time.

The Commission granted the extension of time because the chain of events and evidence produced by Ms Voto demonstrated an exceptional circumstance.

”The Applicant has informed the Respondent of her personal situation throughout this process and held the genuine belief the employer would not make a determination on the matter until she was in a position to provide a final response to the allegations raised. The circumstances in the Applicant’s case are unique considering the fact that she was residing in a shelter, did not have access to internet or a phone for a period of time, lacked funds and was suffering from a psychological condition due to domestic violence.”

The substantive hearing will follow in due course.

If you have any questions about any of the above, please do not hesitate to reach out to a member of Coleman Greig’s Employment team, who would be more than happy to assist you today.

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