The Fair Work Commission found on 20 April 2026 that an employee was forced to resign and could bring a general protections’ claim against her employer because its Board of Directors had failed to take steps to remove a director who had engaged in sexual misconduct towards the employee, creating an unsafe working environment.
The employee (Employee) made an application to the Fair Work Commission to deal with general protections contraventions involving dismissal, claiming that she was forced to resign from her employment with WA Mirning People Aboriginal Corporation RNTBC (Respondent) because she exercised a workplace right.
The Respondent raised a jurisdictional objection on the ground that the Employee voluntarily resigned, and therefore was not dismissed within the meaning of section 386 of the Fair Work Act 2009 (Cth) (Fair Work Act).
A dismissal is a fundamental prerequisite that must be established before the Commission can deal with a dispute about whether a dismissal was in contravention of the general protections provisions.
Under section 386 of the Act, a person has been dismissed if:
The Employee was employed by the Respondent in the role of Communications and Projects Manager. In May 2025 when she was on a work trip, a colleague told the Employee that a director of the Respondent, Mr Leslie Schultz, had been “filming [her] arse.” The Applicant said that she became very frightened and had a panic attack. She subsequently called the Respondent’s lawyer and told her what had occurred.
The Respondent engaged a consultant to conduct an investigation into the incident, during which the Employee raised a number of additional allegations against the director, including that he inappropriately touched her on the hip and pulled her toward him, made inappropriate comments to her such as offering to be her date if her boyfriend did not take her out, and regularly making comments about her appearance, which were subsequently investigated, and all substantiated.
The Board initially banned Mr Schultz from attending the office where the Employee worked and from attending further meetings with her. However, the Employee became increasingly distressed by the lack of communication and support from the Respondent about the investigation and the outcome. On 18 September 2025 she emailed the CEO to ask for an update as to the outcome of the investigation.
On 19 September 2025, the Respondent’s CEO informed the Employee that the Board had carefully considered the findings of the investigation, the seriousness of the allegations, and the need to follow a fair and proper investigation and disciplinary process, and that the Board had determined that Mr Schultz would receive a formal final warning, attend Board and committee meetings via Zoom only, and could not visit the office without prior notice. The CEO also committed to putting appropriate systems and processes in place to address similar incidents in the future, noting he would consider the Employee’s input in doing so.
The Employee responded expressing her disappointment in the outcome in light of his “sexually motivated and predatory” behaviour, reiterating that she wanted the director removed from the Board.
The Employee resigned from her employment on 27 October 2025, nominating 1 January 2026 as her final day. She gave evidence that she was unable to continue her employment after being advised of the outcome of the investigation, and she told the CEO on the day she resigned that she felt betrayed by the Board whilst visibly upset and crying.
On 11 November 2025, the Respondent directed the employee to cease work immediately and locked her out of its IT systems, after she had allegedly threatened to delete the Respondent’s social media content upon learning of a new internal appointment.
The Respondent argued that the Applicant’s resignation was voluntary, and she was not forced to resign. The Respondent also argued that it was entitled to direct her not to carry out her duties for the remainder of her notice period, and that it had paid her in lieu of notice for that period, because it suspected she had engaged in serious misconduct.
Deputy President Dean concluded that the Employee was forced to resign because of the Respondent’s conduct.
The Deputy President acknowledged that the CEO had done what he reasonably could, including introducing new policies and engaging an Employee Assistance Program Provider, however, given the seriousness of the misconduct engaged in by Mr Schultz, the same could not be said with respect to the Respondent’s Board of Directors.
While the Board did not itself have power to unilaterally remove the director from his position, noting that each of the allegations made against the director had been substantiated, the Board should have taken all steps available to it to remove him. In the circumstances of this case, this involved advising the members of the employer, who did have the power to remove a director, of the outcome of the investigation, and asking them to decide if the director should have been removed from his position.
While the employer had taken steps to limit contact between the director and the Employee, the Deputy President noted that the director would still have a level of authority over the Employee and that this would be highly inappropriate given the allegations of sexual misconduct were substantiated against him.
Deputy President Dean noted “The Board should have made every possible attempt to remove Mr Schultz, and it is disgraceful that he continues to hold a position on the Board give [sic] the allegations that were substantiated.”
Deputy President Dean found that it was unreasonable for the Employee to be expected to continue in the workplace while Mr Schultz remained on the Board. He was not satisfied that the steps taken by the Board were sufficient to support a finding that there were other options available to the employee to remain employed.
Deputy President Dean noted that this was not a matter in which the employee was simply dissatisfied with her employment, the Respondent’s Board had not taken the necessary action to remove the director, and the Deputy President accepted the Employee’s evidence that her workplace was not safe.
The Deputy President found that the Respondent’s lack of action had the effect of bringing about the end of the Applicant’s employment, she had no real, effective or meaningful option but to resign, and she was dismissed within the meaning of the Fair Work Act. The allegations about the employee’s conduct after her resignation were irrelevant to whether the resignation was voluntary. Accordingly, the Respondent’s jurisdictional objection to the general protections application was dismissed, and the application will be listed for a conference.
This decision shows the Commission has high expectations as to what action an employer, including its Board of Directors, should take where a director, executive or employee is found to have engaged in sexual misconduct. In this case given the seriousness of the misconduct, the Board was criticised for failing to take every available step to remove the director from the Board, creating an unsafe work environment for the Employee who was targeted by the inappropriate behaviour.
Ultimately in this case, the Respondent’s failures meant that the Employee was dismissed within the meaning of the Fair Work Act, as she had no real or effective choice in the circumstances but to resign because of the Respondent’s conduct, exposing her employer to a general protections involving dismissal claim.
Where an employee raises allegations of misconduct, including sexual misconduct, employers need to ensure that:
Where allegations of misconduct are substantiated, employers may need to consider what steps are available to remove the person who engaged in the behaviour, where that is appropriate and justified, and may need to communicate the outcome of its investigation to the Board of Directors and/or the members and ask them to take the necessary actions to do so. This is particularly important where the person who engaged in the behaviour is in a position of power, such as a senior executive or Board member, even where the employer’s management does not have the power to remove that person itself and requires assistance from the Board or the organisation’s members.
This case is also a timely reminder for employers to ensure they are complying with the positive duty to prevent sexual harassment and related conduct, and have well thought out and effective prevention and response plans in place. These plans should include how to prevent and respond to inappropriate behaviour by employees, senior managers and directors.
Need help managing a complex complaint? Our Workplace Relations and Safety team, Renae Harding, Greg Smith and Heather McIntyre can help.