By Mike Toten Freelance Writer

An employee was forced to resign, and therefore dismissed, because the employer’s investigation of her sexual harassment complaint was deficient, and the outcome included requiring her to return to working with the man who had allegedly harassed her. She was awarded six months pay as compensation. 
 

Facts of case 

The employer was a provider of airport services. The employee claimed that a male co-worker repeatedly encouraged her to wear a hijab and mini-skirt to work. She repeatedly said “no” and eventually reported him to the Duty Manager. The Duty Manager expressed an apology and copied the Passenger Services Manager. When the latter had not responded two days later, the employee complained again and said she would take leave. The Passenger Services Manager then said she would notify the Operations Manager and the matter would be investigated.  

Both employees were interviewed but the employee who complained was then told that no action would be taken because neither side could be substantiated. The other employee realised who had complained and was reported to be “angry and aggressive” about it. The complainant then requested not to have to work with him (eg by being put on different rosters), but the request was denied on the basis that this would discriminate against him. The complainant remained on leave and asked for a copy of the investigation report. The report stated that the employer had been unable to find evidence to support some of her allegations but promised it would not allow the alleged conduct to recur. The employer said it could look at transferring the employee to another job, but the ones offered required the employee to make compromises. 

However, the employee felt that she was not being taken seriously and concluded that she could not return to work. She resigned, and declined an offer by the employer to discuss the matter further. She then lodged a claim of unfair dismissal.  

The FWC found the employer’s procedures to be deficient in the following ways: 

  • The initial response was supportive and included an apology, but did not indicate what steps would be taken. 
  • It was unreasonable to conduct a meeting where the employee had obvious concerns about continuing to work with her co-worker but the employer indicated that she would have to. 
  • She was only told verbally that the investigation had concluded, but her alleged harasser received a written report. Even when she later requested a written report, she did not get it. 
  • The “outcome letter” she received was inconsistent with what she was told verbally (the latter said no allegations were substantiated, but the letter implied that some were).  
  • Two other co-workers that the employee spoke to about the incidents (and who encouraged her to complain) were not interviewed.   
  • The employer failed to demonstrate that the alternative jobs it offered the employee (including working for another airline) were the only options it had. 

The FWC also commented that "there will often be circumstances where an alleged interaction occurs between two employees in the absence of a witness or overt recording", but "that does not in turn mean that allegations are unable to be substantiated unless the evidence of those two employees aligns". 
 

Decision 

The FWC found that the way the employee was treated gave her no option other than to resign, as it communicated that she was not valued by the employer. 

It then found that she was unfairly dismissed and awarded compensation equivalent to six months’ remuneration. 

 

What this means for employers 

It appears that in this case the employer did not take the employee’s complaint seriously and “went through the motions” in dealing with it. As a result, the two parties involved were treated differently, with the complainant treated less favourably.  

Employers need to investigate complaints of harassment thoroughly, and do so impartially. For example, if an investigation leads to a report, both parties should receive it at the same time and in the same format. 

 


Read the judgment 

Courtney Sewell v dnata Airport Services Pty Limited [2025] FWC 2823 (22 September 2025)