No adverse action due to investigation and redundancy

Jacqueline Butler

26 June 2014

Employment Disputes

The Federal Circuit Court of Australia recently ruled that a law firm acted appropriately when it investigated allegations of bullying and harassment made by an employee solicitor, and accepted the solicitor’s emails as evidence of her resignation.

In Dalglish v MDRN Pty Ltd [2014] FCCA 1138, Ms Dalglish, a lawyer at McCarthy Duthrie Lawyers (MDL), made a number of allegations against three employees of MDL, including that she had been bullied and sexually harassed.

In late November 2011, Ms Dalglish complained to MDL that the behaviour of a senior secretary had imposed considerable stress on her.  On receiving her complaint, MDL immediately engaged an independent investigator.

During the investigation, Ms Dalglish raised new allegations of sexual harassment against two lawyers of MDL.  She also indicated, by email, that she wanted MDL to consider ‘how we can part ways amicably and by way of a settlement‘.  Later on the same day, Ms Dalglish emailed MDL again: ‘unfortunately the employment relationship has broken down between myself and MDL…I feel that an amicable settlement will enable me to [move on]…Please understand, I can’t go back…

Around this time, Ms Dalglish also declined to take part in an interview with the investigator. MDL responded to Ms Dalglish and advised that it had no alternative but to accept her resignation given that she did not appear willing to participate in the investigation and that she did not intend to return to work.

Ms Dalglish did not return to work, and later filed an application alleging bullying, sexual harassment and adverse action because she was “terminated” due to her complaints.

In considering the allegations, Judge Cassidy found there was unsatisfactory evidence as to whether some of the incidents had in fact occurred, and in any event found that (if they had occurred) they would not have constituted bullying or harassment.

Judge Cassidy found (critically to her adverse action claim) that Ms Dalglish was not ‘injured in her employment’ by MDL as she had resigned – her employment was not terminated.  In addition, His Honour concluded that MDL was not in breach of any express or implied terms of Ms Dalglish’s employment contract.

Ms Dalglish’s application was dismissed.

Dalglish demonstrates the merit in addressing employee concerns quickly, often by commencing a workplace investigation into complaints as soon as practicable. Where employers can point to an independent investigation, clear lines of communication and fair and reasonable procedures, they will be in a better position to oppose any subsequent claims of bullying or adverse action.