A resignation that is “forced” due to the employer’s conduct may be considered a “dismissal” within the meaning of the Fair Work Act 2009 (Cth) (FW Act), thereby granting the employee access to the unfair dismissal or general protections jurisdictions.
This is often a contentious issue and will come down to whether the termination was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.
The Fair Work Commission (FWC) was recently tasked with considering this issue in the jurisdictional hearing of Snow v WA Mirning People Aboriginal Corporation RNTBC [2026]FWC 1363.
The employee was employed by WA Mirning People Aboriginal Corporation RNTBC (the Employer) in the position of Communications and Projects Manager.
In October 2025, the employee resigned from her employment following an investigation into a sexual harassment incident. She stated that her resignation was driven by the unsafe working environment after this incident, the Employer’s mishandling of the investigation and the decision to allow the perpetrator to remain in his position.
The incident occurred in May 2025 during an off-site work trip. The employee was told by a colleague that one of the Employer’s Directors had filmed her buttocks with his phone. The employee immediately reported the incident to the Employer, stating that she felt scared and frightened.
The Employer commenced an investigation into the incident, which included interviewing the employee twice over the following months. The Director was initially banned from attending the office or any meetings with the employee.
A second investigation was undertaken as a result of further allegations made by the employee against the Director, including that he had inappropriately touched her on other occasions, had made inappropriate comments to her on Valentines Day and had regularly made comments about her appearance.
Months passed and the employee had not heard anything about the outcome of the investigation. She became increasingly distressed by the lack of communication and support during the investigation and took several periods of personal leave due to the impact of this.
In September 2025, the employee followed up with the Employer about the investigation outcome. The Employer responded advising that the Board of Directors had decided to issue the Director with a formal warning together with other measures, including requiring the Director to attend meetings via Zoom and to not attend the office without prior notice.
The Employer did not provide the employee with the investigation findings. Before the FWC, however, the Employer gave evidence confirming that each of the allegations of sexual misconduct made against the Director had been substantiated.
After resigning in October 2025, the employee lodged an application with the FWC to deal with a general protections dispute involving dismissal claiming that she was forced to resign by the Employer because she exercised a workplace right.
The Employer raised a jurisdictional objection to the application on the grounds that the employee voluntarily resigned from her employment and therefore did not have access to this jurisdiction.
Ultimately, the FWC was satisfied on the evidence that the employee had no real, effective or meaningful option but to resign from her employment due to the Employer’s inaction in dealing with the sexual harassment findings.
The FWC found that the conduct engaged in by the Director was serious misconduct and, given the seriousness, it was unreasonable for the employee to be expected to continue in the workplace while the Director remained in the Board.
The FWC did not consider the steps taken by the Employer to limit the physical contact between the employee and Director to be sufficient (i.e. virtual meetings and limited office attendance), finding it highly inappropriate that the Director would continue to have authority over the employee given his proven sexual misconduct.
The FWC held that the Board should have made every possible attempt to remove the Director but did not do so. It found that while the Board did not have the power to unilaterally remove a director, it did not take any steps at all to advise the relevant decision makers of the outcome of the investigation or ask them to decide whether the Director should be removed. For the FWC, it was “disgraceful” that the Director continued to hold a position on the Board given the nature of the substantiated allegations.
The FWC noted that this was not a matter in which the employee was simply dissatisfied with her employment. Rather, in circumstances where the necessary action had not been taken by the Employer to remove the Director, the FWC accepted that the employee’s workplace was not safe and she had no option but to resign as a result.
Finding that the employee was “dismissed” within the meaning of the FW Act, the FWC dismissed the jurisdictional objection and allowed the general protections application to proceed.
This case offers an interesting perspective on forced resignations as it involves the inaction of an employer in responding to proven allegations of sexual misconduct.
In this decision, the employer’s lack of action had the effect of creating an unsafe workplace environment which left the victim with no real option but to resign, thereby bringing about the end of the employment relationship. This meant that the employee was “dismissed” within the meaning of the FW Act and entitled to pursue her general protections claim.
Employers should carefully consider the risks it may be exposed to when addressing allegations of misconduct – not just from the perspective of the alleged perpetrator, but also from the perspective of those who may be affected by the misconduct.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
