The Fair Work Commission dismissed the employer’s claims that performance issues were the reason for the dismissal.
The worker alleged she was unfairly dismissed by her former employer, a Priceline store in southern Sydney.
On 9 January, the owner of the pharmacy fired the full-time senior pharmacy assistant during a phone call, adding that “I should have fired you after the last incident.”
The incident referred to an allegation made 11 weeks earlier, where the pharmacy assistant had reportedly used profanity towards a colleague in front of customers, resulting in an official warning.
The decision to terminate the employee came shortly after she requested most of January off to focus on caring for her nine-year-old son, who she claimed had been assaulted by her former husband. This incident was the latest in a series of physical, verbal, and emotional abuse directed toward both the pharmacy assistant and her son.
FWC deputy president Gerard Boyce, in assessing the validity of the employer’s actions, concluded that the dismissal occurred because she requested time off (in the form of 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.
He further noted that the employee had been struggling to handle the care of her son, considering the recent and ongoing domestic violence events, given her sole custody as a single mother.
Deputy president Boyce criticised the owner for failing to provide evidence during the hearing. He also rejected the employer’s reliance on various matters listed in the termination letter as justifying the dismissal.
He stated that these matters were not discussed in the termination discussion between the pharmacy assistant and the owner on 9 January.
According to the deputy president, the contents of the termination letter seemed to be an attempt by the owner to reframe or justify the reasons for the dismissal after the fact.
“The reason for the [worker]’s dismissal was not a valid reason, and such a reason was not notified to her prior to or at the time of her dismissal,” the deputy president said.
“The [worker] was given no genuine opportunity to respond to any ‘specific’ capacity or conduct issue relied upon by the respondent to justify her dismissal.
“Both of the criteria under ss.387(b) and and (c) thus weigh in favour of a finding that the applicant's dismissal was harsh, unjust, and unreasonable.”
The FWC found that Priceline Sutherland unfairly dismissed the pharmacy assistant. As the employee sought compensation rather than reinstatement, the FWC awarded her $17,874.70 plus super, having deducted 15% for misconduct and contingencies.
Read the judgment
Sarah Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321 (15 June 2023)
