An employee who claims her complaints of inappropriate behavior in the workplace were never investigated has won her unfair dismissal claim, after the employer company failed to appear.
A former employee of Billboard Media lodged an unfair dismissal claim with the Fair Work Commission (FWC). The threshold issue for determination by the FWC was whether the employee had been dismissed.
The events leading up to her dismissal were that after a short period of sick leave, the employee had returned to work, indicated to the HR Manager that she felt unwell and expected to work only a half-day. She went home at lunchtime that day, and that afternoon received an email thanking her for her ‘resignation’.
The employee claimed that she had not resigned. The FWC agreed, finding that she had been dismissed and there had been no valid reason for the dismissal.
During her employment of just over a year, the employee had raised two complaints verbally and one in writing about inappropriate conduct by male colleagues, including inappropriate comments made by one particular engineer. According to the employee, no investigation was ever undertaken into those complaints, despite the company having a dedicated HR Manager in the business.
The Commissioner commented that this reflected poorly on the management of the company and was an ‘aggravating factor’, weighing in favour of a finding that the dismissal was unfair.
After unsuccessfully seeking an adjournment of the FWC conference set down for the matter, the company failed to appear, as did a company representative who was also ordered to attend. This combined with the Company’s general interactions with the FWC led the Commissioner to state that the Company’s attitude to the proceedings had been in his view “contemptuous and deserves censure”. The matter of non-appearance was referred to the FWC General Manager to decide on any further action. (Under the Fair Work Act 2009, failure to attend before the FWC when ordered is an offence and carries a penalty of potential jail time of up to six months.)
Lessons learned
- This case provides yet another example of the potentially negative ramifications of failing to investigate employee grievances about inappropriate behaviour. In this case, the company’s failure in this regard was considered a relevant factor in the consideration of the circumstances of her dismissal and assisted the employee to win the case.
- Not every employee complaint will necessarily require a full investigation, but taking no action at all and otherwise ignoring an employee complaint of inappropriate workplace behaviour can create even more problems for a reluctant employer.
