FWC Confirms Constructive Dismissal After Flawed Process

The Fair Work Commission’s (FWC) recent decision in Courtney Sewell v dnata Airport Services Pty Limited [2025] FWC 2823 (Sewell) serves as an important reminder of the risks employers face when workplace investigations fall short of proper processes. Irrespective of whether an employer acts promptly, any procedural or communicative flaws can still lead to findings of unfair dismissal. This case, coupled with the decision in Adela Werner v SkinKandy VIC Pty Ltd [2025] FWC 389, highlights an ongoing theme within the FWC, that mishandled investigations continue to expose employers to significant legal and reputational risk.

Overview

On 9 March 2025, Ms Sewell reported that she had been sexually harassed by a colleague. While her Duty Manager initially prioritised her safety, the FWC found that she was not provided with clear information about how her complaint would be managed or what steps would follow. No meaningful escalation occurred until she took personal leave due to stress, after which Dnata Airport Services (DAS) commenced an internal investigation.

The investigation, however, failed to explore whether Ms Sewell had made contemporaneous disclosures to colleagues, despite two individuals later confirming she had spoken to them shortly after the incident. As this line of inquiry was not pursued, those witnesses were not interviewed and their evidence was excluded. The investigation ultimately concluded the allegations could not be substantiated.

Communication throughout the process was inconsistent. Ms Sewell was informed of the outcome verbally, while the alleged perpetrator received formal written findings. Ms Sewell was also rostered to work alongside the alleged perpetrator before eventually receiving written confirmation of the findings, despite requesting for it twice. When the findings were provided, the wording was ambiguous, creating uncertainty as to whether the allegations were substantiated, partly substantiated or rejected.

Although DAS offered alternative work arrangements to Ms Sewell, each of which required significant compromise and failed to address her workplace concerns, including the sexual harassment complaints and her issues regarding DAS’s practical working environment. Feeling unsupported and left without reasonable alternatives, Ms Sewell resigned on 30 April 2025.

Decision

Deputy President Beaumont found that Ms Sewell’s resignation was not voluntary, but the direct result of DAS’s mishandling of both the investigation and its aftermath. The FWC determined that DAS failed to establish a clear escalation pathway, did not proactively escalate a sexual harassment complaint, and conducted an investigation lacking depth and strategic inquiry.

It also communicated inconsistently with the parties and incorrectly assumed findings could not be made in the absence of witnesses or documentary evidence. The FWC was particularly critical of the unequal treatment of the complainant and the Respondent, including the manner in which the outcome was communicated. In these circumstances, it was reasonable for Ms Sewell to conclude she could not safely remain in her employment. Her resignation was therefore a constructive dismissal, and she was awarded $36,468.39 in compensation.

Key Takeaways

This decision reinforces that workplace investigations must be procedurally fair, clearly communicated, and grounded in proper understanding of legal obligations. Investigators must assess credibility broadly including consistency of accounts and contemporaneous disclosures. The absence of witnesses does not preclude reasoned findings and the FWC expects investigators to critically engage with available evidence rather than defaulting to inconclusive outcomes.

Sewell highlights the importance of purposeful interviewing. Effective investigations require more than recording accounts. They demand active inquiry into potentially overlooked evidence. Failure to pursue obvious lines of inquiry risks excluding material evidence capable of influencing the outcome.

Consistent and transparent communication is equally critical. Parties should be informed in a timely manner, provided with written outcomes, and treated equitably throughout the process. In matters involving sensitive allegations such as sexual harassment, employers must also consider the complainant’s psychological safety, including rostering arrangements and ongoing workplace interactions.

Sewell serves as a reminder that a well-intentioned, but poorly executed investigations can expose employers to significant liability. Structured, transparent and legally compliant complaint processes are essential to mitigating unfair dismissal risk and maintaining a safe workplace. Employers uncertain whether their frameworks meet contemporary standards should consider seeking legal advice or specialist training.

If you have any questions about this matter and what it could mean for you as an employee or a franchisee, please do not hesitate to contact Nick Stevens, Paul Chapman, Evelyn Rivera or Ayla Hutchison.