Summary
A liaison officer agreed for her employer to use her image in a workplace poster urging employees to “Feel great—lubricate!” She had volunteered to participate in a spine safety campaign but had not been told how her photo would be used. A Chaldean Catholic, she nearly collapsed when she saw the widely circulated poster. She filed sex discrimination and sexual harassment complaints. She had also asked her employer to recognise that a serious workplace incident had occurred with the publication and distribution of the poster, but her employer was indifferent to her request which led her to resign. She claimed that her employer was obligated to investigate the incident and inform her of the outcome of the investigation and awarded the liaison officer damages.
For a resignation to be considered as constructive dismissal, there must be proof of intentional action or inaction by the employer that made further employment untenable
A Customer Liaison Officer began working for a water company in October 2014. Part of her job was to respond to complaints by customers when water mains broke down. She also accompanied their service delivery crew at repair sites. Sometime between September or October 2015, a representative of a safety company approached the liaison officer.
Recruitment to participate in safety program by posing for a photo
The safety company representative introduced herself and her company and said that they had been hired by the water company to promote workplace safety and implement a program for employees to avoid injuries to their spine by performing stretch and warmup exercises prior to engaging in work. The representative said to the liaison officer that they only needed photos of employees for the posters that they will make. The posters will be posted within the workplace.
Poster had double (sexualised) meaning
About 6 months later, a colleague told the liaison officer that her picture had been used on a poster that had been distributed and posted in at least three of the water company’s depots. The poster showed the liaison officer smiling with her right arm stretched up above her head and the caption was “Feel great, lubricate.”
Actions to support the employee
The liaison officer demanded of her senior managers for the posters to be taken down. Her managers and the safety company apologised. The liaison officer took leave and returned a few days later. The water company referred the liaison officer to a rehabilitation specialist. She received workers’ compensation from April 2016 until April 2017 when the compensation ceased. The water company then paid the liaison officer personal leave until November 2017.
Made to return equipment during the period of personal leave
The company ordered that she immediately return her company issued laptop and motor vehicle, and then later, she was ordered to return the company issued mobile phone, as she would not need it while she was on leave. Because the work laptop had been returned, the liaison officer was unable to access the employee support resources. She was also excluded from the performance review process and was not informed about the two investigations conducted regarding the poster.
Possibility of termination on medical grounds, discussed
In August 2017, the liaison officer was called to a meeting where her medical termination was discussed. Nothing definite was done by way of terminating her until she resigned in December 2020. Even the company’s insurer informed the company that because of the medical condition of the liaison officer she would not be able to return to work.
Complaint for sexual harassment and sexual discrimination
In the meantime, the liaison officer filed a complaint with the Australian Human Rights Commission for sexual harassment and sex discrimination. Her complaint was then transferred before the Anti-Discrimination Board which threw her complaint out and dismissed it. The liaison officer then went to the Supreme Court and returned the case to the Anti-Discrimination Board. The Board eventually dismissed it.
Award of $100,000
The liaison officer then filed her application before the Civil and Administrative Appeals Tribunal that found her to have been subject to sex discrimination and sexual harassment. The water company appealed the decision all the way to the Supreme Court which then awarded her the maximum compensation of $100,000 to be paid by the water company and the safety company.
Application for unfair dismissal
The liaison officer then filed an application for unfair dismissal. The water company raised the issue that the liaison officer had already filed at least 2 complaints against the water company for the incident of her photo being used for a safety poster and she had been awarded $100,000 and so, her application for dismissal should be dismissed.
Position of the liaison officer
On her part, the liaison officer argued that the actions of the water company, when taken as a whole, showed an intent to end her employment and she was left with no alternative but to resign from employment.
Position of the water company
On the part of the water company, they argue that the liaison officer was simply feeling aggrieved and dissatisfied and angry with the water company and refused to engage in the process of addressing and correcting the situation. The liaison officer had already been awarded for sexual harassment and it would be improper to also award her damages for the termination of her employment based on the same set of factual circumstances.
Finding of dismissal, appeal by the water company
The only question was whether the water company had dismissed the liaison officer. The member of the Fair Work Commission found that the liaison officer had been dismissed. The water company then appealed the decision of the member to the full bench of the FWC.
Water company authorised the poster and its sexualised content
The Fair Work Commission found that the water company was responsible for hiring the safety company to create and promotional poster. The poster’s caption: “Feel great, lubricate” had double meanings: a straightforward meaning using the plain language which indicates that exercise and stretching helps make the muscles limber and protects against tearing. But there is a second meaning which a sexualised meaning. The water company approved the poster including the message on the poster where the liaison officer’s image was used.
Lack of a proper and effectual investigation
While it was true that the water company did conduct two investigations on the incident complained of by the liaison officer, the investigation did not yield any outcome. The liaison officer had asked for the posters to be taken down but it was unclear whether they had been taken down. The water company did not even inform the liaison officer how many posters had been created or where those posters were placed.
Employer thinking of dismissing employee on medical grounds
The water company provided psychological support and assessment with the hope of supporting the liaison officer and redeploying her. The medical reports provided by the psychologist that had assessed the liaison officer showed that the only logical option was to terminate the liaison officer’s employment.
Insincere apology
The liaison officer felt that the water company had not been sincere in helping address the source of her stress and continuing injury—the removal of the posters. And when the liaison officer began litigating against the water company to address the injury she had sustained from the water company’s act, the water company kept silent.
Resignation of the employee the probable result of the employer’s actions and inaction
There is no doubt that the liaison officer’s resignation was the probable result of the conduct of the water company. However, the actions and inaction of the water company must be objectively scrutinised to see if as a whole, the action (and inaction) of the water company showed an intent to end the employment relationship with an employee who was no longer fit to work and who had already opted to litigate.
There is no other conclusion but that the employer deliberately acted or remained silent to make the continued employment of the liaison officer untenable. She resigned to prevent further damage to her health, her professional image and her career because of the actions and inaction by the employer.
Tests of constructive dismissal
It is true that the water company did not instruct the liaison officer to resign as there was a pending dismissal (on medical grounds) of the liaison officer. The test in cases of constructive dismissal is: whether the employer engaged in conduct with the intention of terminating the employment relationship; or whether the termination of the employment relationship was the probable result of the employer’s conduct that left the employee without any effective or real choice but to resign.
Another way of looking at this is to ask the question: would the liaison officer remain in employment with the water company if the water company had not acted or failed to act as it had? Would she remain employed if the water company had not authorised the poster with its message, if the water company had reached an outcome after a comprehensive investigation, if the water company had communicated with her about that outcome, if the water company had expressed a heartfelt apology that recognized how serious an injury it had caused the liaison officer, or if it had continued to engage with the liaison officer as an employee? Would the employment relationship have continued?
The liaison officer would have continued with her employment at the water company
There is evidence that the liaison officer had not at first accepted the settlement offered by the water company during their litigation at the Civil and Administrative Tribunal. She wanted the water company to apologise and fix their relationship so that she can go back to work. She asserted that she loved her job at the water company and did not want to walk away from it.
She wanted the water company to come up with a plan for protecting her from any ridicule as a result of the poster by training the workforce that that sort of sexualised objectification in the poster was utterly unacceptable and anyone caught saying anything about it would face disciplinary action. Given as the water company opted to instead pay the monetary settlement rather than to own up to its own mistake, then the continued employment of the liaison officer was not possible.
The publication and distribution of the poster that publicly sexualised the liaison officer demeaned and humiliated her. If any employee had done this, there would have been a thorough investigation, some disciplinary action would have been warranted, and some measures would have been put in place so that the liaison officer would be protected from further humiliation.
In this case, instead of an employee committing the acts of sexual harassment, it was the company itself that committed the acts of sexual harassment and it failed to redress the wrong, fix the injury inflicted, and ensure that the victim was protected from further humiliation.
The appeal by the water company was dismissed.
Source:
Sydney Water Corporation v Reem Yelda [2022] FWCFB 67 https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwcfb67.htm
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