In the next few Justitia blogs, we round-up recent cases and news that constitute noteworthy developments, or indeed cautionary tales. We highlight issues for you to think about at this early stage of the year.

The first is a recent bullying case where the Fair Work Commission demonstrated welcome creativity in resolving a ‘stop bullying’ application. The employee, a head priest of a temple and its only employee, alleged he was being bullied by the president of the temple. After discussions, the parties asked the Commission to make orders that included confining the communications between the parties to work related matters, clarifying the employee’s duties, and implementing rostering protocols. The Commission considered the caselaw, and in view of the preconditions for an interim bullying order not being met, made the more practical, interim orders requested by the parties.

Key takeaways:

  • Employers should work hard to prevent bullying by listening to their employees about the concerns at hand, and what might be done differently to support them. There will be instances where creative solutions can be found. These should be explored.
  • When the parties are called before the Commission, remember that one way a ‘stop bullying’ order could be avoided is to demonstrate the steps that have been taken to prevent or resolve the bullying and rectify the situation, as this may be sufficient to convince the Commission to make more practical interim orders. This will likely require the employer to be open to providing assurances about what it is prepared to do differently and obtain the input (and hopefully the agreement) of the employee, in order to obtain alternative orders.

Case: Mr Suresh Upadhyay [2026] FWC 67

The second is a sexual harassment case with important lessons. The employer’s mishandling of an internal investigation into complaints of sexual harassment, and its expectation that the female complainant should continue working with the male respondent after the allegations were unable to be substantiated, was conduct which “forced” the complainant to resign.

The constructive dismissal of the complainant was unreasonable because of serious flaws in the internal investigation process. The Commission awarded the complainant $36,468 (gross) in compensation (which was equivalent to six months’ pay, minus the complainant’s post-termination earnings).

Key takeaways:

  • Mishandling high-risk internal investigations can expose your organisation to unfair dismissal claims and orders for significant compensation.
  • When communicating the findings of an investigation to the complainant and the respondent, employers should consider taking a consistent approach (e.g. in terms of timing and form of the communications). In this case, the FWC was critical of the employer delaying provision of the written findings to the complainant, which gave rise “to the plausible perception that the [complainant] was not valued by the employer”.
  • An investigator should not default to a finding of “unable to be substantiated”, just because there is an absence of direct witness or documentary evidence supporting (or refuting) a “he said, she said” sexual harassment allegation. Other credibility factors (such as indirect corroboration, inconsistent statements and plausibility) should form part of the assessment.
  • In this case, the employer failed to interview other employees who received reports of the alleged sexual harassment from the complainant shortly after the incident. These employees may have provided relevant evidence indirectly corroborating the complainant’s account, which may have had a bearing on the investigation findings, and the employer’s subsequent inaction.
  • Even where sexual harassment allegations are unable to be substantiated due to insufficient evidence, an employer needs to take steps to ensure the complainant’s future safety at work following the conclusion of the investigation.
  • It is not reasonable to expect the complainant to continue working alongside the person against whom the allegations of sexual harassment were made, or to shoulder the entire burden of compromising their position within the organisation to avoid future contact with the respondent.

Case: Courtney Sewell v dnata Airport Services Pty Limited [2025] FWC 2823