Botched handling of sexual harassment complaint forces resignation

The Fair Work Commission (FWC) recently had to consider whether an employee who resigned had in effect been forced to resign by the way her employer handled her sexual harassment complaint.

Forced resignation

An employee whose employment has ended cannot seek dismissal remedies under the Fair Work Act 2009 (Cth) (FW Act) unless they have been dismissed. This becomes difficult to establish where the employee has given notice of resignation.

Under the FW Act, a person who has resigned is dismissed in the relevant sense if they were forced to resign because of conduct, or a course of conduct, engaged in by their employer. The test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct, such that the employee had no effective or real choice but to resign.

Employer’s conduct

In Sewell v dnata Airport Services Pty Limited (2025), the FWC ruled the employee’s resignation was a probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

After receiving the employee’s complaint of sexual harassment, the employer had conducted an investigation and found the allegations could not be substantiated. The employer communicated the outcome to the alleged harasser in writing but only communicated it verbally to the employee. The employee had to request a written investigation summary and outcome, which the employer provided after some delay. Contrary to what had been communicated verbally to the employee, the written outcome indicated that some of the allegations had been substantiated.

In response to the employee’s concerns about being rostered to work alongside the alleged harasser, the employer responded that she would need to move departments or to a different airline if she wished to avoid the alleged harasser. The FWC observed that this response entitled the employee to feel unvalued within the business and lose trust in her employer. This is despite the employer offering support in the form of access to an employee assistance program and regular welfare checks.

The FWC concluded that on balance it was unreasonable to place the burden of compromise on the shoulders of the employee. This conduct, coupled with the delay in the provision of the outcome letter, which was inconsistent with the outcome given verbally, made the employee’s resignation a probable result. Therefore, the employee was found to have been dismissed and was entitled to seek a remedy under the FW Act for unfair dismissal.

The FWC then went on to rule the dismissal was unfair and to award compensation equal to 6 months pay less the earnings she received from alternative employment.

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