A recent case highlights the importance of employers communicating effectively with their employees who have made workplace grievances.
In Yelda v Sydney Water various failures by the employer to communicate with Ms Yelda were factors in the Fair Work Commission’s decision that the employer had forced its employee to resign.
Background
Ms Yelda was employed as a Customer Liaison Officer by Sydney Water Corporation. She had agreed to have her photo taken on various occasions for workplace promotions. Her photo was used for a work health and safety campaign, but she was not given details about how it would be used.
Ms Yelda’s photo was used in a poster that was placed outside the lunchroom and the men’s toilet at her workplace. A slogan above her photograph said, ‘Feel great – lubricate!’
Ms Yelda felt humiliated and offended when she saw the post. She complained to management about the use of her photo and the employer removed the posters.
She had a long period of leave and received workers’ compensation payments in some of that period.
Still employed, she brought proceedings for sex discrimination and sexual harassment under NSW anti-discrimination laws and received substantial compensation. The tribunal accepted that sexually suggestive jokes and comments containing a double meaning can constitute ‘other unwelcome conduct of a sexual nature’.
The tribunal also accepted that, by reason of the display of the poster, she had suffered serious and prolonged pain and suffering and injury to her feelings.
Some 4 years after these issues began Ms Yelda resigned, without prior notice to the employer that she felt compelled to resign.
She commenced proceedings in the Fair Work Commission alleging that she was dismissed, which the employer disputed.
The issue for the Fair Work Commission to determine was whether Ms Yelda was “dismissed” within the meaning of the Fair Work Act even though she had resigned.
About Constructive dismissal
An employee is “dismissed” under the Act if the employment termination was at the employer’s initiative.
A forced resignation can be a dismissal where the employer engaged in conduct intending to bring the employment to an end, or where the termination was the probable result of the employer’s conduct, so that the employee had no real choice but to resign.
The Decision
The FWC decided Ms Yelda was forced to resign because of her employer’s conduct, in particular its:
- approval, publication and promulgation of the poster;
- failure, after receiving her grievance about the poster, to conduct a workplace investigation and communicate its outcomes to her;
- failure to communicate an apology to her after investigation, and
to specify in writing the number of posters distributed, returned, and destroyed; and - failure to communicate with her after 2017 up until the point of her
The FWC rejected the employer’s argument that her not having given prior notice that she felt compelled to resign meant that she was not forced to do so.
It observed that giving such prior notice could have suggested she was making a considered choice to resign rather than feeling compelled.
Implications
Although managing an aggrieved employee is often difficult, employers should continue to communicate with the employee about their grievance and their employment. To withhold communication will tend to exacerbate workplace risks and the employee’s sense of grievance.
Although each situation is unique, employees who have made a grievance complaint and believe that their employer is not properly communicating with them about it may consider raising the lack of communication as an aspect of their grievance.