“Friends with benefits”, Shakespeare and the Fair Work Act – a story of unwanted personal inquiries in the workplace
Posted on April 29, 2022
The opening paragraph to the decision in Lamb v RPS AAP Consulting P/L [2022] FedCFamC2G 255 gives a hint to the facts.
The decision commences:
“Friendship is constant in all other things -Save in the office and affairs of love (William Shakespeare – Much Ado About Nothing Act 2 Scene 1 line [122])”
In the case the Court found that an employee, who was demoted and forced to resign because she made a complaint about her supervisor’s repeated and inappropriate inquiries into her casual “friends with benefits” relationship with one of their colleagues, was constructively dismissed in breach of the adverse action provisions of the Fair Work Act 2009 (Cth).
Facts
The employee entered into a consensual, intimate relationship with a colleague described by the Judge as a “friends with benefit” relationship. The colleague disclosed this relationship to the employee’s supervisor who was a friend of the colleague, against the wishes of the employee.
The employee alleged that her supervisor made repeated and unwelcomed inquiries of her about the relationship with the colleague. This included inquiries about how the relationship was going and pressuring her to disclose the relationship to her team. The employee told her supervisor that she did not feel comfortable with his enquiries. After asking if she was divorced, and the employee revealing that she was, her supervisor made comments that he thought she was a “good catholic girl” and “geez you must have been young”. Her supervisor denied this and claimed that he made inquiries based on a concern as to conflict of interest issues.
After the relationship with her colleague ended, the employee’s supervisor raised issues about the relationship at her performance review.
The employee raised concerns in an email to her supervisor about his continued questioning about her personal life. Shortly after this, previously undocumented performance issues were raised with the employee and she was advised that she was being removed from her position and demoted.
Held
The Court held that this was a constructive dismissal, even though there was no reduction in salary, as the demotion significantly decreased the employee’s profile within the employer’s business and that the complaint made about her supervisor was a substantial reason behind the demotion. The Court noted that the demotion occurred soon after the complaint against the supervisor was made.
The Court will have a separate hearing to determine the amounts of any compensation and penalties.
Please contact our workplace relations team if you believe you have been unlawfully demoted.
