One Minute Summary

• Following an incident of sexual harassment the employer initiated a workplace investigation.
• The process of the investigation was seriously flawed and inadequate including not interviewing several employees and not examining other important factors.
• The flawed investigation resulted in two differing accounts of the incident. It was therefore declared that it could not be substantiated that the incident took place.
• While the accused was formally responded to in writing the complainant had to make several requests to get a formal written response from the employer.
• On requesting a change of roster so she did not have to work with the accused the employer informed her that was not possible in that area. They did offer other roles including administrative roles.
• Due to how the investigation was carried out and communicated, as well as the requirement to work with the accused, the complainant resigned and claimed unfair dismissal.

We regularly get asked for assistance in undertaking workplace investigations. These usually involve misconduct (bullying, sexual harassment etc) or breaches of policy such a serious safety breach.

The results of those investigations are then utilised by senior management to make a decision about disciplinary steps - including termination.

Where that termination is challenged in the Commission or Courts the investigation process and findings come under close scrutiny.

Given these potentially serious implications it is vital that the truth be clearly established to enable the employer to defend their decision.

I have come across a number of internal investigations where the organisation wanted to whitewash the truth. Unfortunately, it all gets exposed in a very embarrassing way if the resulting decision is legally challenged.

Where an employer attempts to defend their decision in a Fair Work Commission hearing following an ‘inadequate and incomplete’ investigation the result can be a large compensation amount or potential reinstatement.  

The following analysis looks at such a decision where the Commission accepted an employee was forced to resign largely due to a flawed investigation and lack of appropriate resolution.  

Courtney was employed by dnata Airport Services working at Perth Airport. On 9 March 2025 a male employee made inappropriate comments insisting several times she would really good wearing ‘hijab and a mini skirt’ at an upcoming work social event. She stated the conversation made her very uncomfortable and she left the room. No other person was present. Being visibly distressed, several colleagues who she ran into immediately thereafter encouraged her to report the incident.

On reporting the incident to the duty manager they asked her to make a written statement.

The reported incident was clearly a case of sexual harassment involving conduct of a sexual nature that was unwelcome and that would reasonably be expected to offend, humiliate or intimidate.

A formal investigation commenced on 11 March using internal staff with the operations manager being involved in the investigation as well as being the decision maker.

Given that Courtney and the accused (let’s call him John – not his real name) work together, John was suspended from duty and interviewed on 14 March.  In the interview John stated that he did have a discussion about the social event but did not talk to her about what she should be wearing.

Following the interview with John the investigators again spoke to Courtney indicating that John’s version of their discussion was quite different and asking her again to go through her recollection of the incident. She provided an identical account of what she had originally reported.

The investigation was finished by 21 March with the result being that the allegations by Courtney towards John could not be substantiated.

This conclusion was formally communicated in writing to John on 21 March and he resumed working thereafter. Courtney was provided with a short verbal outcome of the investigation at the same time. She later requested a formal written response and after several more requests she received a written response on 28 April.  The outcome of the investigation in the letter was somewhat ambiguous stating that they were ‘unable to make a finding in respect to some of the allegations’. This was different to what Courtney had been told verbally – and what was in John’s letter which stated the allegations could not be substantiated.

John was required to attend Code of Conduct training which, during the hearing, the employer stated occurred ‘out of an abundance of caution’.  

Due to the way the investigation taken place and the outcome communicate to her, Courtney had lost trust in the employer and took several periods of sick leave being unable to attend work when John was working.

Her loss of trust was further eroded when she requested roster changes so as not to work on the same team as John. She stated she did not feel comfortable and felt unsafe working with him.

This request was refused by the employer stating it was not possible to change her roster in that work area. It also stated there would be discrimination if John’s roster was changed or if he was transferred to different duties. However, the employer did offer Courtney alternative operational positions or an administrative role requiring her to compromise her current position and work arrangements. During the Fair Work hearing the Commissioner stated that the employer had failed to provide evidence that it could not move John and that it was unfair to place the burden of compromise solely on Courtney.

Two days after receiving the letter, Courtney resigned on 30 April.  

The Commission accepted that Courtney was left with no alternative but to resign due to the employer’s conduct including the flawed investigation process, the inequitable treatment regarding the formal response, the ambiguous response and the refusal to accommodate changes at the workplace to make her feel safe.

It became clear during Fair Work Commission proceedings there were several employees who were not interviewed including those who saw Courtney immediately after the incident and encouraged her to report the incident. It also became clear that there had been various reports of harassment incidents concerning John with another investigation being underway when this incident with Courtney occurred.

The Commission dismissed the employer’s argument that Courtney had resigned. They stated they had attempted to argue they had followed a proper investigation process, that they usually do not give letters to an complainant, they provided EAP and welfare checks, and that they had attempted to provide alternative employment options to Courtney.

Finding that a dismissal had occurred the Commission determined reinstatement was not an option and awarded a compensation amount of $36,468 to Courtney.

Commentary

Looking at the how the investigation process unfolded, and the depth of the process itself, it became clear that those undertaking the investigation did the best they could. They did not have any experience in conducting investigations.

The fact there were other incidents of potential harassment and a second investigation underway in respect to the accused, should have a sounded some alarm bells that Courtney was likely telling the truth and a deeper investigation was required.

However, naively believing they had conducted a proper investigation and not finding a clear outcome against the accused, could have led them to believe that it was ok to allow him to resume work with Courtney. A more thorough investigation should have taken place.

Following are reasons employers must conduct a proper investigation:

• Potential unfair dismissal proceedings by the accused in the Fair Work Commission
• Potential Fair Work sexual harassment proceedings by the claimant
• Potential sexual harassment proceedings by the claimant in the Australian Human Rights Commission
• Potential safety investigation by SafeWork NSW.
• And now – potential unfair dismissal proceedings by the claimant being forced to resign.

And when the ‘no-win, no-fee’ lawyers get involved the compensation claims suddenly become very large.

Employers must know the facts of what happened to make the right decision.

If you require assistance with a workplace investigation please contact Michael.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Guiding senior managers through complex employee relations issues

 Sign up here to receive Hunter Employee Relations Update directly to your email inbox

Want to know more about our client services?