FWC Rejects General Protection Application from Resigned Employee

The Fair Work Commission has rejected a general protection application from an employee who claims that her resignation after 4 weeks of employment was due to the failure of her employer to adequately respond to her claims of bullying and harassment.

Ms 'CJ' worked for Insurance Group Services Pty Ltd ("IAG") for approximately four weeks, all of which comprised an onboarding program.

CJ submitted her resignation on 18 May 2023 via email and stated, 'Due to bullying in training for NRMA and sexual harassment that I have experienced at and the limited options that were offered to me after reporting said experience's said, it is with deep regret that I feel my hand was forced to resign'.

During the ongoing program, her managers were concerned that she appeared to be disengaged and arranged a meeting with her to discuss their concerns. When spoken to on 3 May 2023, she did not raise any formal complaint of bullying. However, a female manager 'Ms C' recognised her concerns and agreed with her to 'address the matter informally'.

IAG offered to withdraw her from the ongoing program and instead provide one-on-one training. She did not take up this offer.

Around the same time, she began exchanging messages with a co-worker who was not part of the onboarding program. These exchanges were the basis of her sexual harassment claim against the co-worker.

On 16 May 2023, CJ was unwell and did not attend for work. Ms C contacted her, and in evidence before Deputy President Michael Easton, the manager recalled that CJ raised the harassment claim but made no mention of being bullied.

IAG immediately responded by ensuring that the alleged co-worker worked from home until an investigation could be undertaken. CJ was also advised of this decision.

The following day, Ms C again contacted CJ and recalled her saying, 'I think you should just fire me, at least I can then get Centrelink' during the conversation. When Ms C asked CJ for details to support her bullying claim, she responded, 'No, I just want it to go away'.

On 18 May 2023, a meeting was held between CJ, Ms C and the Manager of Customer Delivery. Although there were different recollections as to the discussions, all three agreed that CJ gave details of her alleged bullying and indicated that she was still considering resigning. IAG told her that they would investigate her allegations and asked her to provide a statement.

Later that day, she resigned.

To pursue a general protection claim under the Fair Work Act 2009 in these circumstances, CJ must convince the FWC that she was forced to resign due to conduct by IAG. Her claim was that IAG had failed to take proper steps to return her to work or in relation to her sexual harassment complaint.

In rejecting the claim, the Deputy President could not find any fault with the process IAG followed in response to her claims. As he noted,

"There was no suggestion at the hearing that Ms (J) ever regretted resigning or ever changed her mind about no longer working for IAG. In these circumstances, it cannot be said that Ms (J) resigned from her employment in the heat of the moment. Similarly, there was no evidence of jostling by the employer".

Further, he noted,

"It would have been premature for IAG to have made definite arrangements for Ms (J) to return to work. Ms (J) was not fit for work when she resigned".

The application was dismissed.

CJ v Insurance Australia Group Services Pty Limited [2023] FWC 2491 (27 September 2023)

For queries about investigations allegations, harassment, bullying claims, 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 [email protected]

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.