FWC rules resignation a dismissal when board fails to act on harassment
When a Board kept a harassing director in place despite substantiated findings, the Fair Work Commission ruled the resulting resignation a dismissal.
In a decision handed down on 20 April 2026, following a hearing on 16 March 2026, Deputy President Dean of the Fair Work Commission found that Madison Snow, a Communications and Projects Manager at WA Mirning People Aboriginal Corporation RNTBC, was forced to resign in circumstances constituting dismissal under the Fair Work Act 2009. Snow had resigned following a sexual harassment incident involving a company director.
The case was brought as a general protections application under s.365 of the Act, with the threshold question being whether Snow had been dismissed at all. The respondent argued she had resigned voluntarily. Deputy President Dean disagreed.
The incident took place in May 2025 during a work trip in Mirning Country. A colleague alerted Snow that director Leslie Schultz had been covertly filming her on his phone without her knowledge. Snow said she panicked and had a panic attack before being taken home. She did not report the matter to police at the time.
Two internal investigations followed. The Board initially banned Schultz from attending the Perth office where Snow worked and from attending meetings with her. Further allegations against Schultz emerged during the first investigation, including that he had inappropriately touched Snow on the hip and pulled her toward him, made inappropriate comments on Valentine's Day including offering to be her date if her boyfriend did not take her out, and regularly commented on her appearance. The CEO, Mr D'Antoine, confirmed in evidence that each allegation was substantiated.
The impact on Snow was significant. She took multiple periods of personal leave between the incident in May and her resignation in October because of the effect the incident and investigation process had on her.
Mr D'Antoine informed Snow by email on 19 September 2025 of the Board's determination. Schultz would receive a formal final warning, attend Board and committee meetings via Zoom only, and could not visit the office without prior notice. D'Antoine also committed to putting appropriate systems and processes in place to address similar incidents in future, and indicated he would consider Snow's input in doing so. Snow responded by expressing her disappointment in the outcome, describing Schultz's behaviour as "sexually motivated and predatory," and reiterated that she wanted him removed from the Board entirely.
She resigned in writing on 27 October 2025, nominating 1 January 2026 as her final day. She described her decision as being "driven by the unsafe working environment created after a sexual harassment incident involving a WAMPAC director, the distressing mishandling of the investigation, and the Board's decision to allow the director to remain in his position."
On 11 November 2025, the organisation directed Snow to cease work immediately and locked her out of its IT systems. It said it had done so because Snow had allegedly become agitated after learning of a new internal appointment and threatened to delete the organisation's social media content. The organisation also contended that Snow's notice period was only four weeks from 27 October 2025, not through to 1 January 2026 as she had given, and that it had paid her in lieu for that shorter period. The organisation argued throughout that the resignation was entirely voluntary.
Deputy President Dean acknowledged that D'Antoine had done what he reasonably could, introducing new policies and engaging an Employee Assistance Program provider. The failure, the Deputy President found, lay squarely with the Board. The organisation's members, who held the power to vote on a director's removal, were never informed of the substantiated findings against Schultz, and were therefore never given the opportunity to act on them. The Deputy President also found that paying out the notice period did not change the fact that Snow's resignation had not been given freely, and that the organisation's complaints about her conduct after 27 October 2025 were irrelevant to whether the resignation was voluntary.
"The Board should have made every possible attempt to remove Mr Schultz, and it is disgraceful that he continues to hold a position on the Board give [sic] the allegations that were substantiated," Deputy President Dean wrote.
The Deputy President found that even with physical separation measures in place, Schultz's continued authority over Snow as a director remained inappropriate given his proven misconduct. Snow's resignation was a forced one and therefore constituted a dismissal within the meaning of the Fair Work Act 2009. The application has been listed for conference.
The ruling cements a pointed reality for HR leaders. An organisation can conduct thorough investigations, impose restrictions on the harasser, and have a supportive CEO, and still face a finding that a resignation was forced and therefore constitutes dismissal. Where the person responsible holds a governance role that HR or management cannot unilaterally end, the obligation extends to actively engaging whoever does hold that power, and pursuing every available mechanism to use it.
