FWC probes HR's efforts to prevent 'psychological harm' in workplace
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a senior principal engineer who claimed she was forced to resign due to bullying and misogynistic behaviour from a technical director.
The worker, who had been employed by the company for 13 years, alleged that she had been subjected to harassment, put-downs, and passive-aggressive behaviour from the technical director since 2020.
The case highlighted the challenges faced by women in male-dominated industries, and the FWC heard evidence from both parties about the events leading up to the worker's resignation.
Background and context
The worker, a senior principal engineer, had been employed by the company for 13 years, with 10 of those years in a full-time capacity. According to records, she worked closely with the technical director on several major projects, given her role and length of service with the employer.
The worker claimed that she was one of the last remaining female engineers at the company, having resisted a male-dominated and "boys club" culture for several years.
The technical director's role included providing technical direction to the ITS team, coordinating global capabilities, and working across various client projects nationally. He also performed roles such as technical expert, technical reviewer, or project director, depending on the project requirements.
The worker, as a senior principal ITS engineer, worked on client projects as a technical lead, managing other technical staff and inputs while ensuring that the employer captured the clients' needs.
Allegations of bullying and harassment
The worker alleged that the technical director had engaged in various forms of “misogynistic behaviour” towards her, creating a working environment where “she no longer felt psychologically safe.”
She claimed that she had repeatedly challenged the technical director about his conduct, taking him to task and “calling him out whenever appropriate, but to no avail.” The situation reached a boiling point in September 2023 when, during a major client briefing, the technical director asked the worker to "get the coffees."
This incident prompted the worker to make a formal complaint to the employer about the technical director's behaviour, including advice that she no longer felt safe working with him.
Investigation and outcome
The employer conducted a workplace investigation into the complaint, which the worker claimed made no adverse findings against the technical director and failed to address her concerns adequately. The investigation, conducted by the employer's HR Business Partner, concluded that the alleged bullying could not be substantiated.
However, the investigator noted that the way the team was functioning and several organisational challenges were creating psychological safety risks that needed to be addressed.
During a subsequent HR meeting, the worker was informed of the investigation's outcome and that action needed to be taken around project governance, team design, and role clarity to make the workplace safe. The employer also suggested that attempts at mediation and rebuilding the relationship between the worker and the technical director should be explored.
However, within two hours of the meeting, the worker submitted her written notice of resignation, citing that she no longer felt psychologically safe to work at the company due to the technical director's bullying.
Evidence presented during the hearing
Throughout the hearing, both parties presented evidence to support their case. The worker provided witness statements detailing the alleged incidents of bullying and harassment, along with a table of events outlining the timeline of the issues faced.
The employer, on the other hand, argued that the investigation into the worker's complaint had been fair, thorough, and impartial, presenting witness statements from several employees, including the technical director and the HR Business Partner who conducted the investigation.
The hearing delved into various incidents and interactions between the worker and the technical director, including discussions about project allocations, bid submissions, and client meetings.
The worker claimed that she had been excluded from projects, given impossible timelines to complete tasks, and subjected to passive-aggressive behaviour from the technical director.
The employer, however, maintained that these issues were a result of factors such as resource allocation, project requirements, and communication challenges.
One notable incident discussed during the hearing was a breakfast meeting in August 2022, where the worker confronted the technical director about his behaviour and its impact on her work. While the worker claimed that she had raised her concerns professionally, the employer argued that she had been aggressive and confrontational in her approach. This incident led to further discussions between the worker, her team manager, and the section executive about the issues faced and the need for intervention.
The FWC’s consideration
After considering the evidence presented by both parties, the FWC delivered its decision on the matter. The Commission found that the worker's resignation was not a case of constructive dismissal, as the employer had taken reasonable steps to address her complaint and had not engaged in conduct that left her with no choice but to resign.
However, the FWC acknowledged the significant stress and frustration experienced by the worker due to the technical director's behaviour and the challenges of working in a male-dominated environment.
The Commission emphasised the employer's responsibility to ensure a safe and respectful workplace for all employees, regardless of gender, and the importance of addressing bullying and harassment complaints promptly and effectively.
The decision highlighted the need for clear communication, collaboration, and role clarity within teams, particularly when dealing with complex projects and competing priorities.
The FWC noted that misunderstandings and conflicts can arise when there is a lack of clarity around roles, responsibilities, and expectations, as evidenced by the various incidents and interactions discussed during the hearing.
Fostering culture of diversity, respect, inclusivity
In its concluding remarks, the FWC stressed the importance of creating a workplace culture that values diversity, respect, and inclusivity.
The Commission stated that employers must take proactive steps to foster a culture of respect and support, ensuring that all employees feel valued and safe in their work environment.
"The [employer] submitted that [its HR Business Partner] also informed [the worker] that action needed to be taken around project governance, team design, and role clarity immediately to make the workplace safe and that attempts at mediation and rebuilding the relationship between [the parties] should be explored."
This statement from the FWC's decision underscored the need for employers to take a proactive approach in addressing workplace issues and fostering positive relationships among employees, particularly in situations where there are concerns about psychological safety and team dynamics.
The Commission also acknowledged the emotional toll that the situation had taken on the worker, noting:
"It was submitted for [the worker] that ultimately, when [the director’s] conduct deteriorated to sexual harassment on 1 September 2023, and the [employer] failed to protect [the worker’s] psychological safety, [the latter] was left with no alternative but to resign her position."
While the FWC ultimately found that the worker's resignation did not constitute constructive dismissal, the case reminded employers of the ongoing challenges faced by women in male-dominated industries and the need for employers to create a workplace culture that supports and values all employees.
