Fair Work: 'Workplace trauma' didn't lead to forced resignation

Worker claims employer failed to address PTSD, gave oppressive workload

Fair Work: 'Workplace trauma' didn't lead to forced resignation

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed she was constructively dismissed from her position as a Senior Workplace Investigator at a specialist investigation services company.

The worker, who had been employed since July 2019, alleged that her employer failed to provide adequate support and safety measures, leading to her experiencing vicarious trauma and psychological harm.

The worker's role titles and duties had changed several times over the course of her five-year employment, with her final position being Principal Investigator.

She had also received salary increases and changes to her working hours, moving from a standard five-day week to a nine-day fortnight and eventually a four-day week.

The worker claimed that the nature of the investigations, which often involved abuse of children and people with disabilities, exposed her to vicarious trauma and psychological harm.

She alleged that the employer had no risk analysis, mitigation procedures, or support systems in place to address these issues.

Traumatic events and lack of support

The worker described three particularly traumatic events she experienced during her employment:

  1. In 2020/2021, she was harassed by a teacher who was the subject of an investigation and a positive finding related to sexual harassment and assault of a student.
  2. On January 26, 2022, her home property was vandalized with the word "Bitch" spray-painted on buildings and fences, which she suspected might have been done by someone she had interviewed during an investigation.
  3. In early 2023, she interviewed a Disability Support Worker who was not informed that the client they were discussing had passed away, leading to severe emotional distress.

The worker claimed that the employer's support following these events was limited to kind words and that incidents were not properly recorded or addressed.

She also alleged that the workload and hours were oppressive and unreasonable, requiring long days and regular weekend work.

Request for reduced work hours

In January 2023, the worker requested to move to a four-day week, citing health issues and an inability to manage her workload.

The employer agreed to this request in February 2023, subject to certain conditions, such as recording billable hours, providing information about her health conditions, and using time off in lieu (TOIL) to manage excess hours.

However, the worker claimed that these conditions were not implemented and that the employer continued to schedule meetings on her days off, which she was required to attend.

The employer disputed this, stating that the worker failed to properly record her hours and provide the requested health information.

In May/June 2023, the employer announced an organizational restructure that affected the worker's role without prior consultation.

The worker claimed this change would require her to return to full-time operational investigations, which she felt unable to continue due to her health and well-being.

Return to work and subsequent issues

According to records, following discussions with the employer, the worker was offered a new role focusing on report writing, proofing, quality assurance, and conducting reviews, with a 10% salary increase.

She accepted this offer and returned to work on August 13, 2023, with the understanding that she would have minimal client or witness contact for the first few weeks.

However, the worker claimed that she was allocated a case involving a distressed witness, which she was not prepared for, and requested that the case be reallocated to another investigator.

On September 5, 2023, she left the workplace and remained off work until her resignation on October 22, 2023, apart from briefly returning on September 9, 2023.

The worker contended that the request for her to undertake the investigative work was contrary to the assurance provided by her employer.

However, the employer argued that no such assurance was given and that it would be difficult for the employer, whose business involves conducting workplace investigations, to give any operational employee a "pass" on conducting investigations.

Was there forced resignation?

The worker claimed that the demands of her work and the lack of support she received took a toll on her health, forcing her to resign. However, the FWC said that the weight of this submission was almost entirely undermined by the absence of evidence supporting her claim that she suffered from "vicarious trauma and PTSD."

The medical evidence was limited to two medical certificates from September and October 2023, which did not specify the nature of her medical condition, and a Letter of Support from her GP dated March 6, 2024.

The FWC found that the employer had taken steps to address the worker's concerns, including moving her into the Principal Reviewer role in 2022, offering her a choice between a consultancy role or a full-time role primarily focused on review work in August 2023, and agreeing to changes in her hours of work and role.

The FWC did not accept that the worker "had no effective or real choice but to resign" and concluded that the worker's resignation was not caused by the conduct or course of conduct engaged in by the employer.

Consequently, the worker was found not to have been dismissed within the meaning of the Fair Work Act 2009. It then rejected the worker’s application against the employer.

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