Male colleague's inappropriate comments about attire create workplace safety concerns
The Fair Work Commission (FWC) recently dealt with a case where a female airport services worker won her unfair dismissal claim after being forced to resign following her employer's mishandling of a sexual harassment complaint against a male colleague.
The case arose when the worker resigned in April 2025 after an investigation into her harassment allegations was not substantiated, but she was expected to continue working alongside the accused colleague without appropriate workplace adjustments.
The worker argued she was constructively dismissed due to procedural failures in the investigation process, delayed provision of outcome documentation, and the employer's refusal to modify roster arrangements to avoid contact with the male employee.
The airport services company contested the forced resignation claim, maintaining that they conducted a proper investigation and offered alternative work arrangements to address the worker's concerns.
Workplace incident triggers harassment complaint
The passenger services worker reported that on 9 March 2025, a male colleague entered her office area and made inappropriate comments about her attire for an upcoming social event, specifically suggesting she wear "a hijab with a short mini skirt" and repeatedly insisting it would "look really good" despite her repeated refusals.
The conversation made her extremely uncomfortable, forcing her to leave the room under the pretense of checking equipment.
Colleagues who witnessed her distress afterward encouraged her to report the incident, which she did to her duty manager that same evening.
The worker's complaint detailed the unwelcome sexual nature of the comments and their impact on her comfort and safety in the workplace, initiating the employer's formal investigation process.
The incident represented a clear case of sexual harassment under workplace legislation, involving unwelcome conduct of a sexual nature that would reasonably be expected to offend, humiliate or intimidate the recipient.
The worker's immediate reporting and visible distress provided supporting evidence for the seriousness of her allegations.
Investigation process reveals serious procedural flaws
The employer commenced an investigation on 11 March 2025 using internal staff rather than external investigators, with the operations manager serving as both investigator and decision-maker.
The male employee was suspended during the investigation period and interviewed on 14 March 2025, providing a significantly different account of the conversation than the complainant's version.
Critical investigative failures emerged during the process, including failure to interview colleagues who witnessed the worker's immediate distress after the incident and could have provided corroborating evidence.
The employer took an overly simplistic approach of treating any misalignment between the two accounts as grounds for non-substantiation rather than conducting thorough fact-finding.
The investigation concluded on 21 March 2025 with findings that allegations could not be substantiated, though the male employee was required to attend conduct refresher training.
However, the outcome was communicated to the accused in writing immediately, while the complainant received only verbal notification, creating inequitable treatment between the parties.
Communication failures compound investigation problems
The worker was not provided with written investigation outcomes until 28 April 2025, despite repeatedly requesting formal documentation from 15 April onward.
When the outcome letter finally arrived, it contained ambiguous language stating the employer was "unable to make a finding for some of the allegations," creating confusion about whether any aspects had been substantiated.
This contrasted sharply with the clear written communication provided to the male employee, stating that allegations were not substantiated, demonstrating disparate treatment between the complainant and the accused.
The delayed and unclear communication undermined the worker's confidence in the investigation process and her employer's commitment to addressing her concerns.
The employer's explanation for the communication delays and inconsistencies proved inadequate, with evidence suggesting conflation of multiple investigations and confusion about which findings related to which complaints.
This procedural mismanagement significantly contributed to the worker's loss of trust in her employer.
Roster modification requests highlight workplace accommodation failures
Following the investigation outcome on 10 April 2025, the worker requested roster changes to avoid working with the male employee, expressing concerns about her ongoing safety and comfort in the workplace.
The employer refused this request, stating it would constitute discrimination against the male employee to modify his schedule or transfer him to different duties.
Instead, the employer offered the worker alternative positions, including load control operator, different airline assignments, or administrative roles, all requiring her to compromise her current position and arrangements.
These options were presented as accommodations but effectively punished the complainant by requiring her to change roles rather than addressing the underlying workplace safety concerns.
The Commission found the employer failed to demonstrate that roster modifications could only be achieved by moving the complainant rather than the subject of her complaint.
No evidence was presented about exploring options to modify the male employee's schedule, despite his being subject to multiple workplace investigations during this period.
Commission finds constructive dismissal occurred
The Commission determined the worker was forced to resign due to the cumulative effect of the employer's conduct, including investigative failures, communication delays, inequitable treatment, and refusal to provide adequate workplace adjustments.
The decision emphasised that placing the burden of compromise solely on the complainant was unreasonable in these circumstances.
The employer's conduct was deemed sufficiently egregious that resignation became the probable result, thereby satisfying the legal tests for constructive dismissal.
The worker had no effective choice but to resign when faced with returning to work alongside the subject of her harassment complaint without appropriate protections or modifications.
The Commission awarded $36,468 in compensation, representing six months of lost wages, finding the employer's serious procedural failures and inequitable treatment warranted full compensation despite the worker's ability to secure alternative employment during the relevant period.
