A Melbourne geotechnical engineer who claims she was forced to resign because her supervisor wanted to “get into her pants” has lost her application for unfair dismissal remedy.
Fair Work Commissioner Sarah McKinnon found the supervisor’s conduct to be “unwise”, but was “not satisfied that it was harassment”.
She warned that it is “rarely without risk for a supervisor to express feelings for a subordinate, given the obvious power imbalance likely to exist in the relationship and the consequences that may flow from a situation where those feelings are not, or are no longer, shared”.
The geotechnical engineer contended that her relationship with the supervisor “was nothing more than work colleagues”, but Commissioner McKinnon said “the evidence persuades me it was more than that”.
“The two exchanged friendly messages and emails and shared meals or drinks together from time to time, both in connection with work and outside of work” she said.
From the middle of January of 2018, the employee took extended sick leave for stress and anxiety and did not return to work.
In April her lawyers sent a letter to her employer alleging a range of contraventions of the law, reserving her rights and indicating that should would be “unlikely to be fit to return to work at [the company] for the foreseeable future” and that returning to work was “now untenable”.
Following the communication from her lawyers, the employee made a workers’ compensation claim. On the same day a different employer confirmed an offer of employment with her. About a week and a half later she accepted that offer of employment.
In the days following, her lawyers wrote to her original employer again asserting that she accepted its repudiation of her contract of employment and was seeking payment of 6 months’ “reasonable notice of termination”.
No mention was made of the employee accepting an offer of alternative employment.
The employer’s lawyers responded, maintaining that the employee remained employed and subject to an ongoing workers’ compensation claim.
The day following, the employee filed her application to the commission.
In the commissioner’s decision, she noted that the employee “was aware of [the supervisor’s] attraction to her before May 2017 but there is no evidence that before then she had indicated to him that his behaviour was unwelcome”.
“Once she did so, he apologised, promised to stop and stopped” she said.
The commissioner said she wasn’t “persuaded that termination of [the employee’s] employment was the probable result of [the supervisor’s] conduct such that, by May 2018, she had no effective or real choice but to resign. Had that been the case, it is reasonable to assume that [her] employment would not have continued for as long as it did after May 2017 when the conduct of concern ceased”.
She was not convinced that the employer “either intended to, or did, leave her with no choice but to resign from her employment” and it was her acceptance of employment with a new employer that forced her to resign.
The employee’s application was dismissed.