This article provides an overview of the unfair dismissal case brought by an employee (agent) against her employer (company) recently before the Fair Work Commission. The case revolves around a complaint for sexual harassment and the poor response by the company causing the agent to resign from her employment.

 

Sexual Harassment and Constructive Dismissal – Proves Very Costly to Employer

Introduction

This article provides an overview of the unfair dismissal case brought by an employee (agent) against her employer (company) recently before the Fair Work Commission.  The case revolves around a complaint for sexual harassment and the poor response by the company causing the agent to resign from her employment.

Background

The agent was employed by a company that providing certain services across Australia. At the centre of the dispute is that the agent alleged that she resigned from her job due to repeated sexually harassed by another worker who worked in close proximity to her.  Following what was shown to be a flawed investigation and despite the agent’s request to be put on another roster to avoid working with the co-worker, who was now aware that the agent had lodged the complaint. the company did not change her roster.  

After numerous requests for a copy of the investigation’s report the agent was provided a copy and on reading it she believed that the company was not taking her complaint or welfare seriously, causing her to feel undervalued and abandoned and she realised she could not return to the job.  She then lodged an unfair dismissal claim with the Fair Work Commission, claiming Constructive Dismissal. 

Constructive Dismissal

Constructive dismissal occurs when an employer creates an environment so intolerable that an employee feels they have no choice but to resign, effectively being fired by their employers actions or inaction. If an employe resigns and can show it was a constructive dismissal on the part of the employer, the employee is provided with the full protection of the Fair Work Act 2009 (Cth)

Key Issues

• Whether the agent’s dismissal was harsh, unjust, or unreasonable as defined under section 385 of the Fair Work Act 2009.
• Whether the procedures followed by the employer were fair and in accordance with established legal and industrial relations standards.
• Whether the investigation was conducted in a thorough and impartial way.
• Consideration of the reasonableness of the request by the employee to change her roster after lodging the complaint. 
• The company’s behaviour in all aspects of managing the complaint.

One interesting part of the employer’s defense was that following the investigation the agent met with company representatives and was informed that the company was not able to make any findings in relation to parts of her complaint but would ensure the conduct would not recur.

Fair Work Commission Decision

The Fair Work Commission examined the circumstances surrounding the company’s actions following the initial complaint and found the initial steps, when the company offered the agent access to an Employee Assistance Program (EAP), initiated an investigation and directed the male employee not to attend work, was both reasonable and appropriate.  However after these initial steps the Commission was critical about much of the company’s actions and processes they followed.  The Commission’s decision was chiefly informed by the actions of the company and how they managed the investigation and communication with the agent.

Significance

The case highlights the importance of ensuring that any complaint made by an employee should be taken seriously and if an investigation is deemed to be required the investigation should be conducted thoroughly and impartially, upholding procedural fairness for everyone involved.  It is clear that the company did not follow these steps when they attempted to manage a serious matter inhouse without using people with the necessary skills.

This case also underscores the need for clear, documented processed in relation to employee complaints and how they are managed.

Conclusion

The Commission found the agent's dismissal was both unreasonable and unfair and determined that she would have remained employed for at least six months.

After subtracting the agent's post-dismissal earnings, the Commission ordered the company to pay her $36,468 in compensation, equivalent to six-months pay, which is the maximum amount the Commission can apply for an unfair dismissal.

If you are concerned how to mange any matter in the workplace or require an workplace investigation please contact me via my website, my email address john@lambwrc.com.au or my phone on 0428 112 009. There is no cost for initial advice