The applicant then pleads that the third respondent was aware that the applicant was not being paid her wages but that alone in the circumstances cannot satisfy the requirement to plead sufficient particulars that could lead to a finding of the "practical connection" between the third respondent and the pleaded contravention as required by s 550 of the FW Act.
The fourth respondent is also a qualified accountant and member of the Institute of Chartered Accountants of Australia and New Zealand. He too has been a director of H.U. Partners Pty Ltd. He became a director of the first respondent on 28 February 2022. He too deposes to the applicant becoming the major shareholder of the first respondent from 5 February 2024. He deposes to not having had any involvement in the determination of the wages to be paid to the applicant by the first respondent and that he resigned as a director of the first respondent on 5 February 2024. He thereafter remained a shareholder of the first respondent.
The fourth respondent refers to his involvement in payment of wages to the applicant. He states that his involvement was limited to processing the payments to be made to employees once the amount to be paid was approved by the applicant. The checking and approval of the amounts to be paid to each employee, including the applicant, was determined by the applicant. He states that the applicant had access to the payroll system of the first respondent until her employment was terminated.
As with the third respondent, the fourth respondent deposes that he became aware on or about 17 September 2024 that the applicant had ceased attending at work and on 24 October 2024 her employment was terminated by the first respondent on the ground of abandonment of employment. He became aware of information related to the applicant in his capacity as a shareholder of the first respondent.
The further particulars with respect to the fourth respondent are similar in form the further particulars raised in relation to the third respondent. The same difficulties arise.
The second respondent affirmed an affidavit later on 1 April 2025. He deposes to having commenced working for the first respondent, as an operations manager, on 1 January 2024. He was based in the Northern Territory and managed a number of employees there whilst the applicant was the operations manager responsible for South Australia. He states that they did not report to each other.
He states that he was asked to become a director of the first respondent on 22 June 2024 in circumstances of the applicant having been rejected in an application to obtain a National Disability Insurance Scheme clearance. The second respondent had such a clearance. On 10 July 2024 the second respondent also became a shareholder of the first respondent. He refers to the first respondent having been placed into voluntary administration in June 2024 and that, at the time, the applicant was the majority shareholder.
The second respondent deposes to his understanding that the applicant was responsible for processing timesheets for employees in South Australia and that included her own timesheets. He states that he was not responsible for processing her pay. He states that the applicant had access to the payroll system and had the ability to process her own pay. He states that he had no involvement in relation to the terms of the applicant's contract of employment with the first respondent and had not been a director of the first respondent when that contract of employment had been entered into.
The second respondent refers to having viewed footage of 12 September 2024 which showed the applicant collecting her personal belongings and clearing her work station. He states that she did not return to her work station thereafter and that his review of the applicant's work calendar entries revealed that she did not have any scheduled meetings or client attendances and in the period between 1 August 2024 and 24 October 2024 she made only three outgoing calls. He states that during September and October 2024, multiple calls were made by himself and also accountants of H.U. Partners Pty Ltd in their capacity as accountants for the first respondent and there was no response to any of those attempts.
By reference to both the pleading in his answer/response and the content of his affidavit, the position of the second respondent is that he was based in the Northern Territory and managed the operations of the first respondent there. Whilst he subsequently became both a director and shareholder of the first respondent, the day to day operations of the business of the first respondent in South Australia were managed by the applicant. At all material times she was a director and the majority shareholder. She processed the payments of wages from timesheets and, as stated by the fourth respondent, he then undertook the final step in arranging for the payment to be made into the account of the employee on the basis of the information provided by the applicant.
The circumstances giving rise to the termination of the contract of employment are not clear. In his affidavit the third respondent refers to the applicant's removal as a director of the first respondent by decision of the shareholders. The fourth respondent gives similar evidence in his affidavit and refers to the shareholder meeting having taken place on 17 October 2024. The applicant pleads that her employment was abruptly terminated without notice on 24 October 2024. She acknowledges that the letter of that date refers to an abandonment of employment. An abandonment of employment occurs when an employee leaves the employment without due and proper notice. Whether a failure to attend at work when expected brings the employment relationship to an end or, amounts to a repudiation of the contract of employment which may be accepted by the employer, may depend upon the particular facts. In Searle v Moly Mines Ltd,[36] the applicant ceased attending at work following a work injury. She continued to provide medical certificates to the respondent employer to explain her absences. She pursued a claim for workers compensation benefits. The Full Bench held that there had been a termination of the employment at the initiative of the respondent. It referred to the respondent's conclusion that the applicant had abandoned her employment as clearly incorrect.[37] The Full Bench also referred to the significance of the relevant statutory provisions and that the application of common law principles relating to the termination of the contract of employment may not yield the correct answer in any given case.[38]
In Lloyd v Alexander M Pty Ltd[39] the applicant had been employed by the respondent to manage one of its furniture stores in Melbourne. The respondent arranged a meeting with the applicant where concern and questions were raised about the business, which had been running at a considerable financial loss. The applicant requested a few days in order to clear his name and that request was approved. Thereafter, the respondent attempted to contact the applicant on several occasions and the messages were never returned. Hamilton DP observed that the questions raised by the respondent were appropriate and that the respondent had the right to have a response to the questions raised. The only contact from the applicant had been to collect his possessions from the respondent's premises. By doing so, not returning to work, and not answering messages, Hamilton DP held the applicant had communicated a decision not to continue the employment relationship in any form. Hamilton DP held that there was no action by the employer to terminate the employment and that it came to an end as a result of the applicant's abandonment of employment.
There is currently a failure by the applicant to plead the material facts constituting claimed continued employment between 25 August 2024 and 24 October 2024. There has been no challenge, by way of answering affidavit evidence, to the references in the affidavits of the respondents of her having cleared her work station on 12 September 2024, the attempts to speak to her by telephone or to explain the lack of use of the work diary.
There was no objection by the applicant to the respondents reading their affidavits for the strike out application and there was no application for them to be available for cross-examination. It is appropriate to rely upon the content of the affidavit evidence of the respondents for the purpose of determining the strike out applications.
I have considered whether it would be appropriate to allow the applicant a further opportunity to plead her case in the current proceeding. Notwithstanding the deficiencies referred to in these reasons, and that the applicant had been in possession of the answer/response filed on behalf of the respondents, the affidavits of evidence of the respondents and an outline of argument of the third and fourth respondents prior to the hearing of oral argument, no draft amended claim has been presented for the Court's consideration. There are some decisions of the Tribunal which indicate the setting out of particulars should not be approached in the same manner as formal pleadings and that the focus should be upon the substance of the possible claim rather than the form presented.[40] Even if that approach is to be accepted, the Tribunal is required to afford the parties natural justice and procedural fairness[41] and if the essential elements of a claim are not addressed adequately, then s 41 of the SAET Act empowers the Tribunal to strike out the claim. Provisions such as s 32 of the SAET Act, which provides that generally the procedure of the Tribunal will be conducted with a minimum of formality and that it must act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms, do not excuse the Court from affording natural justice and procedural fairness to a party before it.[42] As observed earlier, the Tribunal remains empowered to grant leave to allow a subsequent proceeding of the same kind in relation to the same matter if it is in the interest of justice to do so.
For the reasons given, the applicant's claim against the respondents, as currently pleaded has a number of deficiencies and, notwithstanding the leave granted to file further particulars, fails to disclose a cause of action in accordance with the relevant principles of law pertaining to s 550(2)(c) of the FW Act. There is a present inability to mount an arguable case in the manner posed by Gilchrist DPJ in McBride. Put another way, as pleaded there is only a remote possibility of merit as addressed by Kelly DPJ in McGee v Local Government Associate Workers Compensation Scheme.[43] By reference to the expression of Doyle J in Adelaide Brighton Cement, the pleading does not disclose a real prospect of success. The pecuniary penalty proceeding against the respondents is thereby lacking in substance in accordance with s 41(1)(a) of the SAET Act.
In all the circumstances, it is appropriate that the pecuniary penalty proceeding against the second, third and fourth respondents be struck out.
[2]
Pursuant to s 41 of the South Australian Employment Tribunal Act 2014, the applicant's pecuniary penalty proceeding against the second, third and fourth respondents, as set out in paragraphs 28 and 29, filed on 13 January 2025, is struck out.
The further particulars of claim of the applicant dated 20 March 2025 are struck out.
[33]BI (Contracting) Pty Ltd v Northern Adelaide Health Network Inc. and Ors[2015] SADC 19; The State of South Australia (In Right of the South Australian Government Financing Authority) v Bradford Insulation (Contracting) Pty Limited (In Liquidation) and Ors.[2020] SAET 170; Sherry v Wallaby Grip (NSW) (In Liquidation) and BHP Group Limited (No. 2)[2022] SAET 39, [39]; Hart v Chief Executive, Attorney-General's Department (Department for Health and Wellbeing)[2025] SAET 28, [56].
[40] See, for example Independent Education Union of Australia v The Anglican Church of Australia Collegiate Schools of St Peter[2025] SAET 53, [32] (Lieschke DP).
[23]
[42] See, for example Giancaspro v SHRM (Australia) Pty Ltd[2005] SASC 40 at [40], (Bleby J, with whom Doyle CJ agreed) which addressed the cognate s 154 of what was at the time in what is now entitled the Fair Work Act 1994 (SA). That is another Act within the ambit of s 6(1) of the SAET Act whereby jurisdiction is conferred to the South Australian Employment Tribunal (see Part 1 of the Fair Work Act 1994 (SA)).
[24]
[43][2019] SAET 207, [11] (referred to with approval by the Full Bench in Harradine at [50]).
Parties
Applicant/Plaintiff:
Pearson
Respondent/Defendant:
Supporting Care Pty Ltd and Ors. [2025] SAET 55
Legislation Cited (5)
Work Act 2009
Australian Employment Tribunal Act 2014
Australian Employment Tribunal Rules 2024
Work Act 2014
Work Act 1994
Cases Cited (28)
Pearson v Supporting Care Pty Ltd and Ors. [2025] SAET 55 (18 June 2025)
Public Service Association (SA) v Chief Executive, Department of the Premier and Cabinet (for Chief Executive, Department for Correctional Services)[2019] SAET 37
Hatchard and Ors. v Chief Executive, Attorney-General's Department (South Australian Metropolitan Fire Service)[2024] SAET 69
Fair Work Ombudsman v South Jin Proprietary Limited[2015] FCA 1456
BI (Contracting) Pty Ltd v Northern Adelaide Health Network Inc. and Ors[2015] SADC 19
The State of South Australia (In Right of the South Australian Government Financing Authority) v Bradford Insulation (Contracting) Pty Limited (In Liquidation) and Ors.[2020] SAET 170
Sherry v Wallaby Grip (NSW) (In Liquidation) and BHP Group Limited (No. 2)[2022] SAET 39
Hart v Chief Executive, Attorney-General's Department (Department for Health and Wellbeing)[2025] SAET 28
The function of pleadings is to state with sufficient clarity a case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd. (In Liquidation)[1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.[20]