Sexualised poster, years of silence: her resignation was a dismissal

What happened

Ms Yelda was a customer liaison officer with Sydney Water, responding to incidents such as broken water mains and sewer overflows. In late 2015, at a repair site, a representative of a company Sydney Water had hired to run a workplace stretching campaign called 'Safespine' asked for volunteers to be photographed. She agreed. She was not told how the photos would be used.

In April 2016 a colleague told her that her photo was on a poster in at least three Sydney Water depots. It showed her smiling with one arm stretched above her head, with 'Feel great' above the image and, in larger print below it, the word 'Lubricate'.

She complained the next day and both companies apologised. Apart from a few days, she never went back to work. She received workers compensation until April 2017 and then paid personal leave until November 2017. Sydney Water took back her car, laptop and phone, and in August 2017 a human resources officer explained its medical termination process to her, though it did not go ahead. The Deputy President found those steps, and the support Sydney Water gave in 2016 and 2017, were reasonable in themselves; they were not what forced her out.

The years of silence

Ms Yelda brought sex discrimination and sexual harassment claims in New South Wales. The NSW Civil and Administrative Tribunal upheld them, a result confirmed on appeal up to the NSW Court of Appeal, and she was awarded the maximum $100,000, payable by each of Sydney Water and the campaign company.

Meanwhile, the Full Bench recorded, there was almost no direct communication between Sydney Water and Ms Yelda from November 2017 until she resigned in December 2020. Sydney Water had completed its own investigation of the poster in November 2016, but never discussed the result with her. She saw the report only in 2018, through document discovery in the tribunal case. A formal apology promised once the investigation finished never came.

The claim

After resigning, Ms Yelda applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth), the general protections dismissal claim. Sydney Water objected that she had not been dismissed at all: she had resigned.

Deputy President Beaumont, sitting in Perth, disagreed. She found Ms Yelda had been forced to resign, and described Sydney Water's lack of contact as an 'inept approach to managing an ill and injured employee – who was litigating against it'. Sydney Water asked a Full Bench for permission to appeal.

Why: the legal test

Under s 386(1)(b), a person is dismissed if they resigned but were forced to do so because of conduct, or a course of conduct, engaged in by the employer. 'Conduct' includes a failure to act. The test, from the Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, is whether the employer acted with the intention of ending the employment, or whether ending it was the probable result of the employer's conduct, so that the worker had no effective or real choice but to resign.

The Full Bench stressed that the line must be drawn carefully: having good reasons to resign does not, on its own, make a resignation forced. It also considered whether the employment would have continued if the employer had acted differently.

Applied here, the Full Bench agreed the poster was the starting point, an act that 'publicly sexualised, demeaned and humiliated' Ms Yelda. What followed formed one course of conduct: an investigation whose outcome was never shared, no proper apology, no written account of how many posters were distributed, returned and destroyed, and a prolonged silence from early 2018. Those failures were still continuing when she resigned, so the long gap since 2016 did not break the link. Ms Yelda's evidence, not challenged in cross-examination, was that she had loved her job and would have returned with a real apology and support. Given the silence, the Full Bench said, it was unclear what other outcome than resignation could have been expected.

Sydney Water also argued that the $100,000 award had already compensated her for the poster. The Full Bench rejected this: the award came after she resigned and was no barrier to relying on the same conduct. It found errors in how the Deputy President described the investigation evidence, but none that amounted to appealable error, and refused permission to appeal.

What this means for you

If you are off work after something your employer did, and the employer stops communicating, never reports back on its investigation or treats you as if you no longer work there, that pattern can amount to a forced resignation. Keep records of what was promised and what never arrived, and consider getting advice before you resign. For employers, the lesson is to finish investigations, report the outcome to the person affected and keep in contact, even when litigation is running.

A general protections dismissal claim must be lodged within 21 days of the dismissal.