The Fair Work Commission’s decision in Sewell v dnata Airport Services Pty Ltd [2025] FWC 2823 is a wake-up call for every HR team managing sexual harassment complaints.
At the heart of the case was the employer’s handling of a sexual harassment complaint. While dnata Airport Services claimed it could not substantiate the allegations, the Commission found that the investigation process itself was flawed.
The result?
Ms Courtney Sewell’s resignation was deemed a constructive dismissal and an unfair one.
This case matters because the Commission did not just look at the outcome it closely examined how the investigation was conducted.
Facts of the Case
Ms Courtney Sewell was employed by dnata Airport Services in ground operations. In late 2023, she made a complaint of sexual harassment against a male colleague.
Her evidence was that, while at work, the colleague made unwanted comments and engaged in behaviour she considered to be sexually harassing.
These comments in particular were in regards to asking her about what she would be wearing at a social event he was attending. Comments such as:
- “wear hijab with a short mini skirt”
- “I think it would look really good”
- “come on you should wear it”
Ms Sewell said the conversation made her feel extremely uncomfortable
She told two co-workers about the incident immediately afterward. Those colleagues encouraged her to report it and she did so formally to management.
The employer commenced an internal investigation.
The male employee was interviewed and denied the allegations. He was provided with the outcome of the investigation on 21 March 2024, confirming no allegations were substantiated.
Ms Sewell, however, was left waiting for weeks. Despite repeated requests, she did not receive a written outcome until seven (7) weeks later.
When it finally arrived, the outcome letter stated that the company was “unable to make a finding for some of the allegations.” This conflicted with the earlier verbal advice that none of her allegations could be substantiated.
Ms Sewell gave evidence that she felt unsupported throughout the process. She was not provided clarity on whether she would continue to be rostered with the male colleague. When her request to avoid working with him was declined, she felt she had no option but to resign.
The Commission’s Assessment of the Allegations
The Commission accepted that Ms Sewell’s resignation was not a free choice but a forced one, triggered by her employer’s handling of the sexual harassment complaint.
While the Commission did not make a determination on whether the alleged harassment occurred, it was critical of the investigation process.
In particular:
- The failure to interview named colleagues,
- the significant delays, and
- the inconsistent and unclear findings,
- standard of a fair and reasonable investigation had not been met.
As a result, the resignation was deemed a constructive dismissal under the Fair Work Act, and an unfair dismissal.
The Commission awarded $36,468 after finding that an employee’s resignation was forced when her sexual harassment complaint was mishandled.
What Went Wrong According to the Commission
1. Failure to Interview Key Witnesses
Ms Sewell identified two colleagues she spoke to immediately after the incident, both of whom encouraged her to report it. These individuals were never interviewed.
- Commission’s view: Not interviewing them meant critical corroborating evidence was ignored.
- What should have happened: All witnesses named by a complainant should be spoken to, even if they are not “eyewitnesses.” Their accounts can establish context, consistency and credibility.
2. Delay in Providing an Outcome
The male employee received his investigation outcome on 21 March. Ms Sewell, by contrast, waited seven (7) weeks and only after repeated requests.
- Commission’s view: This delay was unacceptable and undermined her confidence in the process especially considering the alleged perpetrator had already received an outcome of the investigation.
- What should have happened: Serious complaints, particularly sexual harassment, should be prioritised and resolved swiftly. HR should keep both complainant and respondent updated regularly, even if the investigation is ongoing.
3. Ambiguous and Inconsistent Findings
The written outcome provided to Ms Sewell stated dnata was “unable to make a finding for some of the allegations.” This conflicted with earlier verbal advice that none of the allegations could be substantiated.
- Commission’s view: The inconsistency created confusion and eroded trust.
- What should have happened: Findings must be clear, consistent and explained in plain language. If an allegation is not substantiated, the decision maker must set out why, referencing the evidence considered. This should be properly set out in a written report and ultimately an outcome letter.
4. Lack of Transparency in Outcome Communication
Dnata’s internal practice was to only provide written outcomes to suspended employees not complainants.
- Commission’s view: This policy failed to recognise the seriousness of sexual harassment allegations and left Ms Sewell feeling undervalued.
- What should have happened: Both parties deserve written outcomes in serious matters. Complainants in particular should be provided with timely, transparent communication to demonstrate the organisation takes their complaint seriously.
5. Over-reliance on Conflicting Accounts
The investigation team treated any discrepancy between Ms Sewell’s and the respondent’s versions of events as grounds to reject the allegations. No effort was made to weigh credibility or consider corroborating evidence.
- Commission’s view: “Unable to substantiate” was not the result of a genuine lack of evidence, but of a failure to investigate thoroughly.
- What should have happened: Investigators must evaluate credibility, consistency and supporting evidence. Differences in accounts are not unusual in harassment matters; they require careful assessment, not automatic rejection. In sexual harassment complaints in particular the use of external investigators should be highly considered.
Why “Unable to Substantiate” is Not Enough
The Commission was clear employers cannot avoid making findings by hiding behind vague phrases like “unable to substantiate.” In this case, the employer’s reluctance to engage with difficult evidence meant it failed its own duty of fairness.
By contrast, the Commission emphasised that employers have an obligation to actively assess evidence, make credibility judgments and come to clear, defensible conclusions.
Lessons for HR and People and Culture Leaders
This case provides a practical blueprint for how to avoid similar missteps.
- Sexual Harassment claims are high risk – high risk matters should really be investigated externally. This provides liability and risk reduction for all involved.
- Investigate thoroughly – follow every lead, interview all named witnesses and document the process.
- Act quickly – delays in sexual harassment matters are not only damaging for trust, but may also be viewed as unreasonable by the Commission.
- Communicate clearly – written outcomes should be provided to both complainant and respondent, with reasons explained.
- Make findings – do not default to “unable to substantiate.” Consider the credibility of accounts and the weight of supporting evidence.
- Respect the complainant – policies that marginalise or delay complainants will not withstand external scrutiny.
Final Word
The decision in Sewell v dnata is not just about one employee’s complaint. It is a broader signal to HR teams if your investigation processes are slow, inconsistent or overly cautious, they will not be defensible.
Employers must be prepared to make findings, communicate them transparently and demonstrate that every reasonable step has been taken to investigate properly.
For HR managers, now is the time to review your organisation’s investigation procedures. Ask yourself: Would the Fair Work Commission consider our processes fair, timely and thorough?
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising sexual harassment complaints and investigations.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
