Sarah-Jayne Curry v. Wesley Mission Queensland
One of the main workplace issues that we help employees with is General Protection claims (or ‘Adverse Action’ claims). If you are unsure what a General Protections claim is, you can read more about it here:
Understanding General Protections Claims – Rubix Legal
When you are considering running a General Protections claim it is vital that you first seek legal advice to ensure you properly understand what is required to increase your prospects of winning.
The importance of proving workplace events through documentation cannot be overstated. Written documentation such as letters, emails, Teams messages, text messages etc is key!
A recent decision in the Fair Work Commission highlights just how important it is to keep adequate written records of workplace issues.
In the recent case of Sarah-Jayne Curry v Wesley Mission Queensland [30 August 2024], an employee’s general protections claim was dismissed. The employee alleged that they were forced into resigning due to persistent workplace bullying. However, the application was ultimately rejected as there was insufficient proof that the employee was forced to resign.
This case underscores the importance of maintaining comprehensive evidence when pursuing such claims.
Key Facts:
- Sarah-Jayne Curry alleged she was subjected to bullying and harassment at her workplace, Wesley Mission Queensland.
- She claimed that this forced her to resign.
- The Respondent (Wesley Mission Queensland) denied these allegations and argued that Ms Curry resigned voluntarily. If she resigned voluntarily then her General Protections application (involving dismissal) must fail.
Key Issues:
- Whether Ms Curry was dismissed (in the sense that she was forced to resign or left with no other option but to resign) or resigned voluntarily.
- If Ms Curry was dismissed, whether it was due to a contravention of the general protection provisions in the Fair Work Act.
Outcome:
- The Fair Work Commission found that Ms. Curry was not dismissed. It was instead found that she had voluntarily resigned and therefore she did not have standing to pursue her General Protections application any further.
Reasons for the Decision:
- The Commission analysed the evidence, including Ms Curry’s resignation letter, the Respondent’s witnesses, and Ms Curry’s testimony.
- The Commission found that while Ms Curry felt bullied and excluded, the evidence did not support the conclusion that she was forced to resign.
- The Commission highlighted the fact that Ms Curry had not raised her workplace bullying concerns formally through the Respondent’s grievance process before tendering her letter of resignation.
Why you must have written evidence to support claims of workplace bullying, forced dismissal or adverse action.
The case of Sarah-Jayne Curry v Wesley Mission highlights the critical role of written evidence. While Ms Curry wholeheartedly believed that she was being bullied to the point that she was forced to resign from her employment, she was unable to provide sufficient evidence to support her claims.
If you are facing workplace bullying or discrimination, you should as a minimum undertake the following steps:
- Keep a contemporaneous record of each incident of workplace bullying or discrimination as they unfold, including a summary of what and when it occurred, who was there, what was said and any other information that helps adequately describe the event. If there were witnesses present, you should note down their names and what observations they may be able to make about the incident.
- Report the matter to whoever is the appropriate contact in your workplace and put it in writing. This does not necessarily have to be any formal or complex record. You could send an email for example. Your written record should again summarise what occurred and ask for your employer’s assistance in addressing the problematic behaviour. Don’t worry too much about your employer’s response – the key is to ensure you put your concerns in writing so that there is a clear and undeniable paper trail.
- In some instances, you might find yourself making verbal reports of workplace bullying, possibly because you trust your manager or you are hopeful they can deal with the matter on an informal basis. Unfortunately, verbal reports are seldom helpful for your legal position. If you have a conversation or make a verbal report, you should still immediately follow up that verbal report with an email that confirms what was discussed. This helps prove that a conversation did take place.
- If you receive any responses from your employer to your workplace reports, keep records of those. If the response is verbal, as above, send an email confirming the nature of this discussion and what your employer said.
- You should undertake these steps for every occasion where workplace issues arise. Without this information, it can be difficult to establish that the workplace environment has become so toxic that you have had no choice but to resign. It will be even more difficult to run a General Protections application on that basis (as was discovered in the Sarah Jane Curry v Wesley Mission case).
In Sarah’s case, the employer argued they did not know she was potentially being bullied because they had no record of her raising such complaints. The first they became aware of the matter was when Sarah resigned, stating she had no other choice because of workplace bullying.
Why Evidence is Crucial:
- Credibility: Evidence lends credibility to your claims. Without it, your allegations may be dismissed as subjective or unfounded.
- Burden of Proof: In legal proceedings, the burden of proof typically lies with the employer (i.e. they have to prove that they did not take adverse action against you). However, as the employee you still need to provide evidence to demonstrate some plausibility or credit to your claims.
- Protection: Having written evidence can protect you from potential victimization or retaliation by your employer.
Types of Evidence:
- Written Documentation: Emails, memos, text messages, letters, former written complaints, and performance reviews can be valuable evidence.
- Witness Statements: Statements from colleagues who witnessed the workplace issue can be helpful. The best time to obtain a witness statement is right after the incident – the more time that passes the less likely it will be that the witness agrees to give you a witness statement. Initially, the statement does not need to be anything too formal – just something in writing recording what they observed, with a date and signature.
- Medical Records: If the workplace issues, bullying or discrimination has caused you significant emotional distress or physical harm, medical records can support your claim.
- Company Policies: If your employer has policies related to workplace behaviour, bullying, harassment or other standards of conduct, these policies can be evidence. The more you can refer to a policy to demonstrate why a breach has occurred, the better.
Tips for Gathering Evidence:
- Document Everything: Keep a detailed journal or log of incidents, including dates, times, and specific details of the workplace issue. Follow up any conversations with an email confirming what was discussed.
- Save Communications: Save any emails, text messages, or other written communications related to workplace issues. If you send emails, letters or complaints via your work email address you may eventually lose access to that system. Keep a printout of the relevant communications to prove that communications were indeed sent to your employer.
- Seek Support: Talk to a doctor, psychologist, friends, or family members about what you’re experiencing.
- Consult with a Professional: If you believe you’re being mistreated and potentially forced into a situation where you have no choice but to resign, consider consulting with an employment lawyer at Rubix Legal. We can guide you on how best to proceed.
You can see that by gathering and preserving evidence, you can significantly increase your chances of success if you ever find yourself in a situation where you need to file a claim against your employer.
Forced dismissal claims are particularly complex. Without written evidence, you face even more challenges.
While there are several workplace avenues available for helping employees who are being mistreated at work, those avenues will not guarantee a fair outcome. You must be strategic in gathering your evidence by documenting the workplace issues you are experiencing, and the previous attempts you have made to resolve or address those issues.
A Valuable Lesson for Employees
The case of Sarah-Jane Curry serves as a valuable lesson for employees navigating general protections claims, unfair dismissal claims and workplace bullying/discrimination claims. Ensuring robust evidence can greatly enhance your chances of a successful outcome. As this case illustrates, without solid evidence, even a legitimate claim may struggle to stand up in the face of scrutiny.
For those facing similar issues, it is advisable to consult with legal professionals to understand the best practices for gathering and presenting evidence. This proactive approach can be crucial in securing a favourable resolution to your claim.
Disclaimer: This blog post provides a general overview of the case and its implications. It is not a substitute for professional legal advice. If you have specific questions or concerns about your employment rights, it is recommended to consult with an employment lawyer.
