Fair Work Friday: The $36,000 Failed Investigation

Welcome to Fair Work Friday! This week we are looking at a decision from the Fair Work Commission (FWC) that highlights how procedural flaws in a workplace investigation can lead to significant legal liability.

A Passenger Services Agent at Perth Airport was recently awarded over $36,000 after the Commission found that her employer’s handling of a sexual harassment complaint left her with no real choice but to resign. This is a clear example of constructive dismissal, where the organisation’s conduct effectively brings the employment to an end.

The Case: A Process That Fell Short

The employee reported that a male colleague made inappropriate comments about her appearance. She rejected the comments, spoke to colleagues immediately after the incident, and reported it to a manager that same evening.

The employer investigated but ultimately concluded the allegations could not be substantiated because the accounts of the two parties did not align. However, the Commission identified several fundamental deficiencies in how that conclusion was reached.

The Ruling: Where the Employer Went Wrong

The FWC dismantled the investigation process, pointing to several key failures:

• Failure to interview witnesses: Even though the employee spoke to colleagues straight after the incident, the employer never interviewed them. While they weren’t there for the comment, their observations of her immediate distress were vital evidence.
• The “Agreement” Trap: The employer assumed that if stories don’t align, you can’t make a finding. In reality, a reasoned fact-finding process requires you to evaluate credibility and consistency to decide what most likely happened.
• Unequal treatment: The alleged offender received a written outcome quickly, while the complainant was only informed verbally much later. She had to chase the business for weeks to get a written outcome.
• Lack of reasonable adjustments: When the complainant asked not to be rostered with the other employee, she was told she would have to move roles or airlines. The employer made no real attempt to see if the offending employee could be relocated instead.

The Commission found that the cumulative effect of these failures was sufficiently egregious to make the dismissal unfair. The employer was ordered to pay $36,468.39 in compensation.

Are your managers trained to handle workplace complaints, or is your investigation process leaving you exposed? At Bloom HR, our HR Advisory service specialises in training and independent investigations, ensuring your processes are fair, transparent, and legally sound.

Call us on (02) 8114 4449 for a first free consultation | or schedule it directly here.