Despite resigning, former employee succeeds in pursuing general protections claim

Despite resigning, former employee succeeds in pursuing general protections claim

A former female employee of Sydney Water Corporation (Sydney Water) who felt humiliated after appearing in a work poster leading to her ultimate resignation has succeeded in having a general protection claim for dismissal allowed to be heard in the Fair Work Commission. In allowing the claim to be heard, Deputy President Abbey Beaumont highlighted various mistakes made by Sydney Water in their treatment of the employee spanning several years.

The employee ‘RY’ had commenced employment with Sydney Water in October 2004 until her resignation in December 2020. At that time, she had been employed as a Customer Liaison Officer (CLO) for several years.

In 2016, RY voluntarily agreed to have her picture taken as part of a workplace campaign promoting the benefits of stretching and warming up prior to undertaking physical activity. However, she was horrified when she became aware that the poster containing her picture included the captions `Feel great’ and `Lubricate’. She believed that the poster had sexual connotations, which she found humiliating and degrading, and that Sydney Water had engaged in sexual harassment towards her by displaying the poster across various depots

RY complained to her employer about the poster, which led to them being removed and a written apology was provided to her. However, soon after the episode and feeling stressed, she successfully lodged a workers’ compensation claim, and after its conclusion, continued on sick leave for anxiety and other disorders until her resignation in December 2020.

Separate to this claim, RY succeeded on appeal before the NSW Civil and Administration Tribunal (NCAT) in a claim that Sydney Water had sexually discriminated and harassed her in respect of displaying the poster. In April 2021, NCAT awarded her the maximum compensation available under s 108(2) of the NSW Anti-Discrimination Act 1977.

During her ongoing absence from 2016 to 2020, RY increasingly felt that she was unable to return to the workplace. An independent medical review undertaken in November 2017 concurred, noting, “Any sensible read of the situation indicates that she is no longer capable of working with Sydney Water as the relationship has so deteriorated there is little prospect of Ms (Y) being able to tolerate working within the organisation”.

Deputy President Beaumont rejected the jurisdictional argument of Sydney Water that RY could not pursue a general protections dismissal claim since she had, in fact, resigned from her employment. The Deputy President determined that she “did not resign voluntarily but was forced to do so because of the conduct, or a course of conduct, engaged in by Sydney Water”.

Although this was not intentional, the Deputy President believed that the poster was offensive towards RY. She raised concerns that throughout the four-year period, Sydney Water failed to undertake a proper investigation of the matter or provide adequate feedback to RY to prevent a similar incident from occurring. As she noted, “Such conduct was inconsistent with the maintenance of the employment relationship”.

The Deputy President was also critical of Sydney Water’s failure to maintain any contact with RY, who remained an employee of the organisation, in the two years prior to her resignation. Although this may have been linked to RY’s separate harassment claim, nevertheless, the Deputy President noted,

“ultimately it fell upon Sydney Water to manage the situation, and there was no suggestion from Sydney Water that Ms (Y) had abandoned her employment or otherwise repudiated her employment contract…it does not negate the conclusion that Ms (Y’s) resignation was the probable result of its conduct, her having no effective or real choice but to resign in the face of Sydney Water’s prolonged silence from 2018. On an objective analysis of the evidence, the conduct of Sydney Water displayed an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020)”.

The Deputy President referred both parties to commence conference discussions to explore a possible resolution to the matter.

RY v JG; BN; Sydney Water Corporation (C2020/9121) 10 December 2021

For questions about harassment, employees on long term absence, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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