The Fair Work Commission's recent decision in Courtney Sewell v dnata Airport Services Pty Limited [2025] FWC 2823 highlights the Commission's expectations for workplace investigations.  In this case, Deputy President Abbey Beaumont found the failure of dnata Airport Services Pty Ltd (DAS) to appropriately handle an internal investigation into allegations of sexual harassment raised by an employee, Ms Sewell, meant that Ms Sewell had no choice but to resign.  On this basis, she had been unfairly dismissed, and was awarded compensation of $36,468.39.

DAS was generally supportive of Ms Sewell and conducted a prompt investigation, but ultimately its investigation fell short for reasons we explore below. This decision is the second significant decision this year in which the Commission has found that an employer’s mishandled workplace investigation resulted in a constructive dismissal - the earlier decision was Adela Werner v SkinKandy VIC Pty Ltd [2025] FWC 389.

What led to the Courtney Sewell v dnata Airport Services Pty Limited [2025] case

• On 9 March 2025, Ms Sewell, a part-time Passenger Services Delivery Agent at Perth Airport, reported to her Duty Manager that she had been sexually harassed by a male colleague (the Respondent Employee). This Duty Manager was generally supportive and prioritised Ms Sewell’s safety, but did not provide any clear procedural steps for dealing with the complaint to Ms Sewell. The matter was escalated only after Ms Sewell applied for personal leave due to stress, having received no further communication about her report.  The Respondent Employee was subsequently stood aside pending the outcome of an internal investigation. 
• By 14 March 2025 – less than one week after Ms Sewell's original report was made - DAS had conducted an internal investigation, interviewing both Ms Sewell and the Respondent Employee. While Ms Sewell's evidence before the Commission was that she had made relatively contemporaneous reports of the conduct to two colleagues, neither colleague was interviewed as part of DAS's investigation.  This was because no inquiry was made of Ms Sewell as to whether she had spoken to or interacted with anyone close to the time of the alleged incident. DP Beaumont observed that the investigation generally took an approach that where Ms Sewell's evidence differed from the Respondent Employee's evidence, in the absence of any witnesses or documentary evidence, the allegation was unable to be substantiated.  Ultimately, DAS' investigation concluded that there was insufficient evidence to find that the conduct either did or did not occur.
• On 20 March 2025, Ms Sewell was verbally informed that the investigation into her concerns had concluded. The following day, the Respondent Employee was informed in writing of the investigation outcome. On 10 April 2025, Ms Sewell was informed that the Respondent Employee would be returning to work as usual the next day.  Ms Sewell requested to be rostered on different days or shift times to the Respondent Employee, but was told that this was not possible. While DAS ultimately did offer Ms Sewell options to transfer to a different role to avoid contact with the Respondent Employee, each of these options would have required significant compromise on Ms Sewell’s part.
• On 15 April 2025, and again on 22 April 2025, Ms Sewell asked for the investigation summary and outcome to be provided to her in writing.  DAS provided this to Ms Sewell on 28 April 2025, in correspondence stating DAS was ‘unable to make a finding for some of the allegations raised'. DP Beaumont observed that the wording of this letter made it unclear whether the allegations had been substantiated, partly substantiated, or not substantiated.
• On 30 April 2025, Ms Sewell resigned. Although DAS did not immediately accept Ms Sewell's resignation and instead approved leave until 15 May 2025 to allow time to meet and explore a resolution, Ms Sewell chose to confirm her resignation. She subsequently lodged an unfair dismissal application, alleging she had been forced to resign.

Key Fair Work Commission findings of the Courtney Sewell v dnata Airport Services Pty Limited [2025] case

DP Beaumont acknowledged the difficulties faced by employers in these situations, however ultimately found that Ms Sewell's resignation was forced by DAS's mishandling of the investigation and its aftermath, and that Ms Sewell was unfairly dismissed. DP Beaumont also noted that the Respondent's view that Ms Sewell and the Respondent Employee could work alongside each other following the investigation was misplaced. Having made a report of alleged sexual harassment and then to have faced the above-outlined circumstances, DP Beaumont found it was open and reasonable for Ms Sewell to conclude she had no choice but to resign.

DP Beaumont specifically highlighted the following flaws in DAS's initial response and investigation process as reasons for this finding:

• The initial response to Ms Sewell's report lacked a clear escalation pathway;
• DAS failed to escalate the matter on its own initiative, until after Ms Sewell applied for personal leave;
• No steps were taken to identify or interview individuals to whom Ms Sewell may have made contemporaneous disclosures;
• The outcome of the investigation was not communicated clearly to Ms Sewell;
• Ms Sewell was not provided with an outcome letter until some time after the investigation was finalised, and she was required to prompt DAS twice to provide an outcome letter;
• Ms Sewell was rostered to work a shift alongside the Respondent Employee after he had received written outcome correspondence, however before she had been formally advised of the investigation outcome;
• DAS incorrectly assumed it could not make findings in the absence of direct witness or documentary evidence.

In our experience, it is relatively common for employers to provide complainants with informal notice of an investigation outcome (including in person or over the phone), while respondents receive more formal outcome correspondence.  However, DP Beaumont criticised this approach, and stated that DAS had “failed to positively demonstrate that it afforded equivalence in treatment” between Ms Sewell and the Respondent Employee.

What you need to know

This decision serves as a reminder that the way an investigation is conducted, including how participants are supported and communicated with during and after the process, can be equally as important as ensuring investigation findings are well-reasoned and defensible.  Mishandling an investigation carries a number of legal, safety and reputational risks, including exposure to unfair dismissal claims.

Our key takeaways from this decision are:

• 'Unable to substantiate' findings should not be an investigator's default finding: This case is a reminder that the Commission will not generally accept a default finding of 'unable to substantiate' in cases involving conflicting accounts, except in exceptional circumstances. Inconclusive outcomes can also have other consequences (eg they can create a culture of non-reporting due to lack of confidence that reporting misconduct will lead to meaningful action).  Experienced investigators are able to assess credibility and make reasoned findings based on a wide range of factors, even in the absence of direct witnesses or documentary evidence.  Importantly, this does not mean that investigators should prefer one person's account over another based on their impressions, as these are often informed by subconscious bias (eg they 'appear more credible').  Assessments of credibility should be solidly grounded in fact (eg based on inconsistent evidence, prior conduct etc).
• Interviews must be strategic and thorough: Effective interviews must involve more than simply recording a person's statement. Investigators should consciously interrogate the reliability and accuracy of evidence, and ask targeted questions to identify potential witnesses and documentary evidence. This approach helps identify all meaningful lines of inquiry, including whether the complainant made contemporaneous reports to colleagues, family or friends, even if the complainant initially overlooks or does not volunteer that information.
• The value of engaging external investigators for high-risk investigations: In high-risk investigations, including investigations into sexual harassment and sexual assault, engaging external investigators can reduce risks for the employer, ensure objectivity, and strengthen the legal defensibility of an investigation process. In addition to these benefits, it is our experience that investigation participants can experience a greater sense of procedural justice, and often feel more heard and supported by their employer, when their employer engages an external party to conduct the investigation.   
• An understanding of WHS and employment law should underpin every workplace investigation: Workplace investigators should always operate with the organisation's legal obligations front of mind. Engaging investigators with employment law and WHS expertise can help ensure that all aspects of the investigation process, including all communication with investigation participants, align with the standards expected by the Commission and relevant regulators. It may also alleviates the burden on your team members to keep up to date on the evolving legal landscape surrounding workplace investigations and psychosocial risk.

If you have any questions about the implications of this decision for your organisation, or would like to discuss your current investigation processes, please contact our team for tailored advice and support.  We also regularly run training for organisation to help support and develop your investigation teams.