By Mike Toten Freelance Writer

When the only woman in attendance at a workshop was asked to “get the coffees”, she claimed that she had been s*xually discriminated against. She claimed that it was an instruction based on gender stereotypes and that there had been a history of her being bullied by the male co-worker in question.

However, the Fair Work Commission (FWC) held that, in the context in which the incident occurred, it did not amount to gender discrimination.

Facts of case

The woman, a Senior Engineer, was the only female out of nine people at a client workshop. She claimed that the co-worker asked her to “get the coffees” and assumed he did so because she was a woman and it was regarded as a “female role”. She also claimed that the co-worker had been bullying her for about four years prior to that. The woman claimed that she had no option but to resign, and did so after an investigation of her complaint concluded that bullying and discrimination had not been proven.

The following context surrounded the event:

  • The co-worker had previously asked another co-worker to arrange for someone else (male) invited to the meeting to get the coffees. However, the second co-worker had not passed on the request and when “someone else” joined the meeting via Microsoft Teams instead, the co-worker asked the woman on her arrival “are you OK to get the coffees?”.
  • The co-worker had brought food to the meeting.
  • The woman said she felt very uncomfortable about the request and later claimed she had been embarrassed and humiliated.  But, assuming that she had instead said she was uncomfortable about using his credit card, the co-worker repeated his request to get the coffees.
  • This time, the woman repeated that she felt uncomfortable, and the co-worker said he would get them instead. One of the clients, now aware of a tense situation, said he would help, and both left the room.
  • The woman later resigned, claiming that she had been forced to, but gave three months’ notice (more than her contract required).
  • The co-worker claimed he had attempted to apologise to her.

The woman claimed that, when she attended a training course on preventing sexual harassment, it had used women being asked to do menial “gender-based” roles such as catering and cleaning as examples. In this case, she was the only woman present, and combined with past alleged bullying of her, it amounted to gender discrimination.

Decision

The FWC noted that her past complaints about work had not referred to bullying and investigations by the employer found no evidence of bullying and said that she would have to continue working with the co-worker. The problems were more likely caused by her frustration at how the co-worker performed his job. Although the investigation (by an HR business partner) revealed some “organisational challenges” which posed a potential threat to psychological safety, the employer had not attempted to end her employment or force her to resign. The investigation suggested several possible strategies to attempt to improve the working relationship between the two employees.

The woman had not been aware of the preceding events leading to the request to get the coffees or the context in which the request was made. That context did not amount to gender discrimination, as it was not an “instruction”, nor was it gender-based. She failed to demonstrate that she had no effective option but to resign. There were various other ways she could have attempted to resolve the matter, eg mediation, requesting not to work with the co-worker, or seeking a “stop bullying” order. The employer’s actions post-investigation had focused on trying to retain her as an employee.

The FWC dismissed her claim.

What this means for employers

If an employee claims he/she was forced to resign, he/she has to prove that there was no alternative option available. The employee’s subjective opinion of the situation is not sufficient proof. In this case, the employer had taken no action to force the employee’s resignation, and in fact attempted to prevent it, given the context in which the events occurred.

Read the judgment

Shivaani Polley v WSP Australia Pty Ltd [2024] FWC 1156 (3 May 2024)