In a recent decision the Fair Work Commission has found that an airline services company unfairly dismissed an employed passenger services delivery agent who had complained of sexual harassment, and that there were serious flaws in the investigation process.
The Facts
The agent was employed at the Perth Airport and complained that a male employee spoke with her about an upcoming social event and asked her to wear a “hijab with a short mini skirt” because “I think it would look really good”. She said he kept encouraging her to wear a hijab and mini skirt, which she repeatedly refused.
Soon after she complained to some colleagues about the incidents. She then reported her concerns to her manager, who responded to her and referred the complaint to more senior management.
2 days later she complained she had heard nothing and that she intended to take a week’s leave. A manager offered her access to the employer’s assistance program and confirmed that the complaint would be investigated. The male worker was directed to remain absent from work while the complaint was investigated.
On 20 March the employer verbally informed the agent it had closed the investigation because “either side” could not be substantiated.
On 21 March the employer gave the male employee a letter stating that it was unable to substantiate the investigations. Before he was due to return to work the agent asked the employer to alter the roster, so she did not have to work with him, but the request was refused.
The agent took leave and asked the employer to send her the written investigation summary and result.
The employer emailed her the investigation report on 28 March after she again requested it. The report stated that the company had been unable to make a finding “for some of the allegations”.
The agent said she felt that the employer was not taking her welfare seriously and realised she could not return to the workplace.
On 30 April she resigned. The company offered to meet about her concerns, but she declined.
She applied for unfair dismissal.
The Decision
The Commissioner allowed the application, finding that:
- Some of the employer’s initial steps in handling the complaint were suitable, such as offering an employer assistance program, initiating an investigation, and directing the male employee not to work.
- The process “began to go awry” when initially the investigation result was notified only to the male employee in writing and the agent was only verbally informed.
- It was unreasonable for the agent to be placed in a position of being imminently placed back on the same shift with the male employee about whom she had made a complaint of sexual harassment.
- The employer’s failure to provide her a written investigation outcome until she followed up a second time was “unacceptable and, on any objective level, would give rise to the plausible perception that the employee was not valued by the employer she works for”.
- The content of the written outcome was “equally concerning”, because it appeared to be inconsistent with what the employer had verbally told her.
- It was reasonable for her to lose trust in her employer and feel undervalued, and the employers conduct was “sufficiently egregious” to force her resignation.
The Commissioner ordered 26 weeks’ pay as compensation.
Implications
Where something goes wrong employers should carefully investigate.
When conducting investigations employers should be careful to afford equivalence in treatment between the complainant and the respondent. Differences in treatment, such as providing written reasons to only the respondent, can have serious implications.
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