| Summary |
UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent tolerated “covert racism” in workplace and failed to adequately investigate assault allegation making resignation reasonably foreseeable – Respondent argued applicant resigned voluntarily, failed to cooperate with respondent’s investigation into applicant’s allegation, and failed to engage with respondent regarding resignation – Applicant claimed earlier complaints to respondent showed racism – Authority found no factual basis for claim – Found criticisms of performance directed at skills not race – Applicant alleged to respondent employee (“X”) assaulted applicant – Following day, respondent advised applicant allegation would be investigated and gave timeframe – Respondent advised applicant investigation would begin following day as respondent’s manager (“B”) on leave – Applicant claimed investigation not carried out with sufficient diligence and expedition – Applicant resigned few days later before investigation completed – B found X cross-alleged applicant assaulted X – B sought to discuss allegation and resignation with applicant in person – Applicant declined request and advised respondent should email information – Respondent declined as matter serious – Respondent advised applicant resignation not accepted and offered applicant opportunity to discuss investigation – Advised failure to respond would result in respondent accepting resignation – Applicant failed to respond and participate in investigation – Respondent’s evidence preferred – Found applicant raised serious allegation and obliged in good faith to engage with respondent in investigation – Found respondent advised applicant how investigation would be carried out and provided reasonable timeframe – Found applicant resigned without giving respondent opportunity to complete investigation and discuss resignation – Found alternatively respondent appropriately accepted resignation after applicant failed to respond to offer to discuss resignation – No constructive dismissal – COSTS – Costs to lie where they fall - Trainee Operator |