Worker claims constructive dismissal after sexual harassment complaint

The Fair Work Commission (FWC) recently examined a general protections application involving a casual laundry worker who argued he was dismissed after making a sexual harassment complaint against a colleague. 

The case arose when the worker left the workplace, claiming it was unsafe following an investigation into his harassment allegations, leading to a dispute over whether he had been dismissed or remained employed.

The worker argued he had been constructively dismissed, maintaining that the employer's handling of his harassment complaint and subsequent actions forced him to leave his employment.

He claimed the operations manager told him his last shift was on a specific date and that he would not be needed until September, effectively terminating his employment relationship.

The employer contested the worker's claim, disputing that any dismissal had occurred and asserting that the worker remained employed.

The company argued that the worker voluntarily left the workplace, declaring it unsafe, and had been on certified medical leave since then, making it reasonable to remove him from casual rosters while he was unable to work.

Casual employment arrangement provides flexible hours

The employment relationship involved a worker employed as a casual laundry hand with an 'ad hoc' contract that clearly stated hours were not guaranteed and were subject to change.

The contract specified that the employer did not commit to providing continuing and definite work or a particular pattern, with workers required to notify the company of any unavailability and expected absences.

The worker began working regular rosters after his initial employment period, establishing a pattern of employment despite the casual nature of his engagement.

The contract required him to advise of any regular and systematic unavailability and to notify management as early as possible of specific dates and times when he would be unavailable.

The flexible nature of the arrangement meant rosters were posted in advance, though the parties disputed whether this was one or two weeks ahead.

The operations manager maintained that rosters were posted weekly, while the worker claimed they were posted fortnightly, highlighting different expectations about the scheduling arrangements.

Harassment complaint triggers workplace investigation

The worker alleged he was sexually harassed by another employee, prompting the employer to commence an investigation into the allegation. According to the worker, the employer initially made a mistake about who was alleged to have engaged in the behaviour, though the operations manager disputed making any error in the investigation process.

The operations manager gave evidence that he prepared a further statement for the worker to review about the allegations, reflecting what he understood the allegation to be and who it was directed at. This suggested the employer was taking steps to clarify and properly investigate the harassment complaint.

The investigation process appeared to be ongoing when the critical incident occurred later that same day, with the employer attempting to ensure they had accurate information about the worker's allegations and were following appropriate procedures for handling workplace harassment complaints.

Worker declares workplace unsafe and leaves

Approximately 20 minutes after reviewing the statement, the worker returned to the operations manager's office, stating he was leaving work because he thought everyone was talking about the incident. 

When asked why, the worker explained that another employee had asked him about work matters, which he interpreted as evidence that people were discussing his harassment complaint.

The worker then declared the workplace was not safe for him and left work. The operations manager noted that the worker clocked out during his scheduled shift, leaving approximately four hours early with no prior indication he would be departing early that day.

Following this incident, the worker has been on certificated medical leave, with certificates stating he is suffering from a psychological injury. His medical certificates indicated he was unfit for work for an extended period, suggesting the workplace incident had significant ongoing effects on his mental health.

Roster removal follows departure and medical certificates

The operations manager's evidence revealed that rosters were posted one week in advance, and the worker was scheduled to work subsequent shifts.

However, the worker did not work those shifts as he was on sick leave, and subsequently has not been rostered for further shifts.

During the hearing, the operations manager explained that because the worker had said he was leaving, felt unsafe and would be seeking assistance outside of work, he assumed the worker wasn't returning and proceeded to take him off the roster.

This decision was made based on the worker's statements and subsequent medical certificates indicating his inability to work.

The worker also filed a workers' compensation claim related to the psychological injury he claimed to have suffered as a result of the workplace incidents.

The employer disputed this claim, further complicating the employment relationship and supporting the worker's position that he was unable to continue working.

Disputed conversation over future work availability

A key dispute emerged over what was said during the conversation when the worker left the workplace. The worker claimed the operations manager said his last shift would be on a specific date and that the company didn't need him anymore.

When asked when he would be needed again, he alleged the manager replied, "In September."

The operations manager disputed this version of events, stating he did not say there would be no shifts until September but did say words to the effect that September would be when they would start getting busy again.

This distinction was crucial, as it suggested discussion of business seasonality rather than termination of employment.

The FWC preferred the operations manager's evidence, finding it more credible than the worker's account.

The Commission noted that even if the manager had said the worker would not be offered shifts until September, this would not constitute action that could be considered to have terminated employment, given the casual nature of the engagement.

Commission finds no dismissal occurred

The FWC examined whether there had been a constructive dismissal, which requires an employee to have resigned due to employer conduct.

The Commission found: "There is no evidence that [the worker] resigned. Indeed, [the worker's] clear evidence is that he did not resign and has not resigned."

The Commission also considered whether there was termination at the employer's initiative, finding: "There is simply no evidence of any action taken by the employer that either intended to bring the employment relationship to an end or has that probable result."

The FWC noted that while the worker had not worked since the incident, this was unsurprising given he left, declaring the workplace unsafe and had medical certificates certifying his incapacity.

The Commission emphasised the casual nature of the employment, noting the worker was not guaranteed hours of work and there was no commitment to providing continuing and definite work.

The FWC found it would not be acceptable for the employer to roster the worker given his departure and subsequent medical incapacity.

Jurisdictional objection upheld and application dismissed

The FWC concluded there was no evidence of resignation from the worker, no notice of termination provided by the employer, and no other termination of employment in accordance with the contract.

The Commission found the worker did not resign, and therefore could not be found to have been constructively dismissed.

The Commission accepted the employer's submission that it was reasonable to remove the worker from the casual roster for scheduled shifts because of what he said when leaving and because of the workers' compensation medical certificates subsequently provided certifying his incapacity for work.

The FWC concluded: "I am not satisfied, having considered the evidence, that there was a termination at the initiative of the employer. Nor am I satisfied that [the worker] has been constructively dismissed.

The jurisdictional objection is upheld, and the application is dismissed." The Commission found that no dismissal had occurred within the meaning of employment law, leaving the worker technically still employed despite being on extended medical leave.