Ms T continued to work at the Restaurant. X began to bully her. Ms T laid a further complaint which her employer investigated .X was given a further formal warning, Ms T was informed of that outcome.
Ms T found the working environment so stressful that after a period of sick leave she resigned and brought a personal grievance claiming that she had been unjustifiably constructively dismissed.
Constructive dismissal in this situation occurs where an employer breaches a fundamental term of the employment agreement which leads the employee to resign. Not every breach of duty by an employer will give rise to a constructive dismissal grievance. Only those breaches that are sufficiently serious that the employee’s resignation was reasonably foreseeable will give rise to a successful constructive dismissal grievance.
Ms T claimed her employer breached his duty to provide her with a safe working environment, contrary to her employment agreement, leaving her with no option but to resign.
The Authority found that the employer was obliged take all practical steps to ensure a safe and healthy work environment for all employees which included notifying Ms T of the result of the first investigation including what steps the employer has taken to prevent its reoccurrence.
The Authority found that the employer had breached this by failing to report back to T the outcome of her initial complaint. T should have been notified that her complaint was investigated, X was issued with a formal warning and the steps taken to prevent such objectionable conduct reoccurring.
However, the Authority held that T’s resignation was not reasonably foreseeable– meaning that the employer’s breach (by not advising Ms T of the outcome of the first investigation) was not sufficiently serious to give rise to a constructive dismissal. This is because her employer promptly and properly dealt with the complaint which proved to be effective as the objectionable conduct (sexual harassment) stopped.
However the Authority found that the sexual harassment itself amounted to an unjustified disadvantage.
Unjustified disadvantage in this situation occurs when an employer fails to do an action which results in the employee’s employment conditions being affected to the employee’s disadvantage.
The Authority found that Ms T’s employment was effected to her disadvantage by the unjustified action of her employer in failing to report back to her about her first complaint and what steps had been taken to prevent X continuing his actions.
This left Ms T feeling vulnerable and unprotected. The results were considerable in that she suffered stress and anxiety to the level of requiring anti-depressants and further medication. T was awarded $10,000.00 compensation for hurt and injury to feelings. (Had she been successful in her claim for constructive dismissal she would have also been entitled to any lost wages and perhaps a larger compensation award)
So employers need to ensure that in similar cases they fully inform the complainant about the result of the investigation.
