Fair Work Act 2009

s.365 - General protections

Australian Food and Fibre Pty Ltd; AFF Holdco. Pty Ltd atf AFF Holding Trust

Application for the Commission to deal with a general protections dispute involving dismissal - whether dismissed

• [1] Ms Shelby Turner was employed as a casual Farm Hand by Australian Food & Fibre (AFF) from 26 February 2024 until 26 March 2025. On 27 March 2025, Ms Turner applied to the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act).

• [2] There is a dispute about whether Ms Turner was dismissed. Relevantly, on Friday 21 March 2025, AFF advised Ms Turner that she would no longer be required for work either at the end of the following week (28 March 2025) or early in the week after that. Ms Turner sought clarification about the exact date of her dismissal. In response, AFF advised that "at this stage work will finish Friday 28 March 2025". But for the events that followed, I accept that Ms Turner would have been dismissed by AFF with effect on 28 March 2025.

Was the dismissal a termination 'at the initiative of the employer'?

• [3] On 24 and 25 March 2025, Ms Turner was unwell and did not work. On 26 March 2025, AFF made enquiries of Ms Turner. In response, Ms Turner wrote to AFF and said: "After everything that's happened, and the way it's been handled, I won't be returning." This action brought the employment relationship to an end with immediate effect. By this action, Ms Turner resigned.

• [4] On the evidence, I do not find that the resignation occurred in the heat of the moment, or when Ms Turner was in such a state of emotional stress or mental confusion that she could not reasonably be understood as conveying a real intention to resign. Although I accept that Ms Turner was experiencing stress that week and that she had been unhappy about how she was being treated at work for some time, her advice to AFF that she would not be returning was a considered one, reflecting a loss of confidence in the employment relationship. AFF's query in relation to an earlier resolved timesheet error was the last straw. There is no evidence that Ms Turner did not mean what she wrote or that she overreacted in the heat of the moment. Ms Turner did not later change her mind or communicate any change of heart to AFF.

• [5] I find that Ms Turner was not dismissed within the meaning of s.386(1)(a) of the Act. The employment ended by Ms Turner's resignation on 26 March 2025. It was not terminated on the initiative of AFF.

• [6] I do not accept that Ms Turner was forced to resign within the meaning of s.386(1)(b) of the Act. Substantial materials filed by the parties indicate difficulties in the employment relationship after January 2025. Ms Turner made various enquiries and complaints during the period from January 2025. She felt that she was targeted and treated adversely as a result. Responses received from AFF did not resolve the concerns, and the employment relationship deteriorated to the point that Ms Turner was unwilling to attend meetings at work without the approval of her solicitor.

• [7] This does not mean that AFF engaged in conduct, or a course of conduct, with the intention of bringing the employment to an end, or that this was the probable result of its conduct, such that on 26 March 2025, Ms Turner had no effective or real choice but to resign. There is no evidence of AFF's intention to bring the employment to an end on or by that date. AFF had advised Ms Turner that she would remain in employment at least until 28 March 2025. In the circumstances, termination of employment on 26 March 2025 was also not the probable result of AFF's conduct. The only possible conduct of relevance in the period after 21 March 2025 (when notice of termination was given) until 26 March 2025 (when Ms Turner resigned) was an enquiry on 26 March 2025 from Ms Turner's manager about her wellbeing and about her timesheet for a day earlier that month. Objectively seen, this conduct did not have the probable result of bringing forward the termination of employment.

• [8] At the time the employment came to an end, Ms Turner had the choice to remain in employment (although only for a short period). She chose not to return to work. By communicating the decision to AFF, Ms Turner brought the employment to an end.

• [9] Ms Turner was not dismissed. The jurisdictional objection must be upheld.

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