Joel Sanderson

[2011] FWA 6820

Note: Appeals pursuant to s.604 (C2011/6314, C2011/6315) were lodged against this decision - refer to Full Bench decision dated 20 February 2012 [[2012] FWAFB 1139] for result of appeal.

[2011] FWA 6820

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Sanderson
(U2011/7272)

Julie Millhouse
(U2011/7281)

v
Kangaringa Farm Pty Ltd

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 OCTOBER 2011

Termination of employment - preliminary issues, termination not at the initiative of the employer, valid reason, warnings.

[1] On 21 April 2011 Ms Millhouse and Mr Sanderson lodged applications pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which they sought relief relative to the termination of their employment by Kangaringa Farm Pty Ltd (Kangaringa Farm).

[2] The two applications were not resolved through the conciliation process and were referred to me for arbitration. They were the subject of a hearing in Adelaide on 14 September 2011. At this hearing Ms Millhouse and Mr Sanderson represented themselves and Mr Marafiote appeared for Kangaringa Farm.

[3] I have briefly summarised the background to these applications.

[4] Ms Millhouse and Mr Sanderson were employed at Kangaringa Farm which is near Keith in the south-east of South Australia. The basis of their employment and their employment conditions are disputed. There is no dispute that they undertook various farm duties but the extent to which they were prepared to undertake all normal farm duties is disputed. There is some uncertainty about the duration of their employment. For the latter part of their employment they lived on the farm in a house provided by Kangaringa Farm. The arrangements for this accommodation are disputed. Ms Millhouse’s and Mr Sanderson’s working hours are disputed. The parties also differ over the extent to which an individual flexibility agreement had application to Mr Sanderson. Finally, I also note that the parties are engaged in a separate dispute over an underpayment claim.

[5] In Mr Sanderson’s case, there is no dispute that his employment was terminated by the employer, but the circumstances of that dismissal are disputed. In Ms Millhouse’s case there is a dispute over whether the termination of employment was at the initiative of the employer. There is some uncertainty about whether Kangaringa Farm is a small business for the purposes of the FW Act.

The Evidence

[6] Whilst I have considered all of the evidence put to me, I have briefly summarised the witness evidence.

[7] At the hearing on 14 September 2011 Ms Millhouse gave evidence relative to the circumstances which led to the termination of her employment. In essence, her evidence was to the effect that the conduct of Kangaringa Farm and various of its employees left her with no option other than to resign. Ms Millhouse’s evidence also supported the position put by Mr Sanderson.

[8] Mr Sanderson gave evidence about his employment with Kangaringa Farm and the events which ultimately led to the termination of his employment on 11 April 2011. In summary form, he asserted that his behaviour did not warrant the termination of his employment and that the actions taken by Kangaringa Farm over a number of months before the termination of his employment were inherently unfair. Additionally, his evidence supported that of Ms Millhouse.

[9] Mr Ellison was the assistant farm manager and was Mr Sanderson’s and Ms Millhouse’s supervisor. His evidence primarily related to his participation in and witnessing of various discussions between Mr Sanderson, Ms Millhouse and the Farm Manager, Mr Sheppy. His evidence also went his understanding of the issues relating to their employment and the events of 8 April 2011 which led to the termination of Mr Sanderson’s employment.

[10] Ms Sheppy works as the administrator for Kangaringa Farm. Her evidence went to various issues and difficulties which arose with respect to Ms Millhouse and Mr Sanderson as employees and to a number of meetings involving them and Mr Sheppy in which she participated.

[11] Mr Sheppy is the manager of the Kangaringa Farm. His evidence went to his involvement with Ms Millhouse and Mr Sanderson as employees, the actions he took to dismiss Mr Sanderson and his involvement at the time of the termination of Ms Millhouse’s employment.

[12] A statement was provided by Mr McDonald, another Kangaringa Farm employee. Mr McDonald is unwell and I have accepted that he was unable to give evidence. As his statement is contentious, I have not taken it into account as Ms Millhouse and Mr Sanderson did not have the opportunity to ask him about it. Equally, I have not drawn any adverse inference relative to Mr McDonald.

[13] Before I consider the initial issues which are significant in this matter, one particular issue needs to be addressed. Mr Sanderson’s witness statement advised:

“Charlie asked my house mate (Name Deleted) if he would work at Kangaringa for two weeks on the potato harvester.

(Name Deleted) could not go, Charlie asked if I would work.

I was on a disability pension at the time due to my bi-polar disorder.

Charlie suggested I use (Name Deleted) tax file number and (Name Deleted) name. (Name Deleted) agreed, I agreed. The wage went to (Name Deleted) Bank Account. This continued from 3/07/08 - 10/09/08.” 1

[14] Information including Tax File Number Declarations to confirm this was also provided to me prior to the hearing of this matter.

[15] At the commencement of the hearing on 14 September 2011 I alerted Mr Sanderson to the very real possibility that his evidence, and that provided by Kangaringa Farm, had the potential to implicate him in fraudulent activities. I requested that Mr Sanderson reconsider whether he wished to pursue his application. Mr Sanderson confirmed that he wished to proceed.

[16] I note that the evidence of Mr and Ms Sheppy is that Mr Sanderson worked at Kangaringa Farm in September and October 2008 under what they now know to be an alias. He signed a Tax File Number Declaration to this effect. In February 2009 he was again engaged and advised that his name was Joel Sanderson. He then signed a Tax File Number declaration to that effect. On the commencement of his second period of employment, I accept that Mr Sanderson advised that his use of an alias reflected his desire to retain a Centrelink disability support pension. I have noted that this pension may have related to Mr Sanderson’s advice that he suffers from bipolar disorder.

[17] Section 396 states:

“396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[18] In some form, each of these initial issues has the potential to be relevant to either or both applications. Before considering the merits of the applications I have considered these initial issues. As a matter of convenience I have first considered Mr Sanderson’s circumstances.

Mr Sanderson

[19] There is no dispute that Mr Sanderson’s employment was terminated on 11 April 2011 and that he lodged his application within the statutory 14 day time limit.

[20] Section 382 states:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $118,100 from 1 July 2011”

[21] Section 383 states:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[22] Section 398 provides protection from unfair dismissal where the dismissal is consistent with the Small Business Fair dismissal code. Section 388 provides for the declaration of a Small Business Fair Dismissal Code. Section 23 defines a small business as an employer with fewer than 15 employees. The Kangaringa Farm position was that it employed eight full-time employees and up to 20 casual employees at various times. Kangaringa Farm asserted that, notwithstanding that it was ultimately owned by the same person, it was a separate entity to the larger sister farm at Virginia. I have concluded that Kangaringa Farm is not a small business for the purposes of s.388 because it employed more than 15 employees at the Keith farm and, in any event, the employees at Virginia should be counted on the basis that this is an associated entity.

[23] Mr Sanderson has clearly been an employee for some three years. At issue is whether his employment status enables that time to be taken into account. Section 384 states:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[24] I am satisfied that Mr Sanderson’s employment was covered by the Horticulture Award 2010.

[25] Mr Sanderson asserts that he was unaware until March 2011 that Kangaringa Farm considered him to be a casual employee and that he was not given information to this effect on the commencement of his employment. Notwithstanding this, Mr Sanderson asserts that he worked on a regular and systematic basis and that he had a reasonable expectation of continuing employment. Mr Sanderson asserts that he generally worked six days each week with the exception of days when the weather was inclement. Mr Sanderson did not provide documentation to put this beyond doubt. Mr Sanderson asserts that the work he was allocated changed in 2011 in that it became more physical and less varied.

[26] Kangaringa Farm asserts that Mr Sanderson was given an employment information package on the commencement of his employment but that he did not sign this. A further copy was given to Mr Sanderson in 2011 but was again not signed or returned. Kangaringa Farm asserts that while Mr Sanderson was paid an hourly rate which was less than the award rate applicable to casual employees, this reflected charges made for the provision of accommodation to him and to Ms Millhouse. Kangaringa Farm provided time and wage records for Mr Sanderson which showed that, at various times he worked more limited hours and asserted that this had to do with weather conditions, limitations on the work which Mr Sanderson was prepared to undertake and the availability of the work such that his work could not be described as a regular and systematic.

[27] Having reviewed all the evidence, I accept the Kangaringa Farm management position that Mr Sanderson had advised that he was not prepared to undertake potato harvesting work. I consider the evidence of Mr Ellison and Ms Sheppy particularly significant in this respect. Nevertheless, I have concluded that Mr Sanderson was engaged as a casual employee on a regular and systematic basis and he had a reasonable expectation that this would continue.

[28] I am not satisfied that any changes to Mr Sanderson’s work which were implemented in early 2011 were such that they constituted a termination of his employment or a demotion. Had this been the case, the termination of Mr Sanderson’s employment would have occurred at a much earlier time. The fact that Mr Sanderson was paid by the hour and was not apparently paid overtime penalty rates or accrued paid leave entitlements, confirms the casual employment arrangement permitted under the relevant award. The issue of whether he was paid the appropriate rate or was given the necessary breaks from work so as to comply with the Horticulture Award 2010 is not a matter which I am required to reach a conclusion about. Mr Sanderson generally worked Sunday to Friday. Significantly, he was provided with a house on the farm property. This is an indication of some permanency and regularity in the employment arrangement. Accordingly, I find that Mr Sanderson worked on a regular and systematic basis and that particularly given his occupancy of the house I consider that he had a reasonable expectation of on-going employment. I am satisfied that Mr Sanderson was protected from unfair dismissal.

[29] Finally, there is no indication that Mr Sanderson’s dismissal was a case of genuine redundancy.

[30] Consequently, I have concluded that Mr Sanderson’s application should be considered on the basis of the criteria set out in s.387 so as to determine whether the termination of his employment was harsh, unjust or unreasonable.

[31] On the evidence before me I have reached a number of conclusions about the facts impacting on the termination of Mr Sanderson’s employment. The evidence indicates significant areas of dispute between the parties. Generally speaking I have preferred the evidence of the Kangaringa Farm witnesses. The evidence of the those witnesses was largely consistent. In terms of the underpayment, timekeeping and award compliance differences between the parties, my findings of fact do not go to these issues. To the extent that it is relevant, I have noted that Mr Sanderson was provided with an Individual Flexibility Agreement but that he did not sign this document.

[32] I have concluded that Mr Sanderson’s use of an alias with respect to his initial employment was not a factor associated with the termination of his second period of employment. There is no evidence to indicate this was the case. Equally, the conclusions that I have reached about the facts are not underpinned by that issue.

[33] I have concluded that there were a number of issues that arose over the duration of Mr Sanderson’s employment. Some of these issues may relate to long periods of work associated with harvest activities. These long periods of work give rise to potential issues associated with award compliance, but more importantly, for the current purposes, to questions about what represented reasonable behaviour.

[34] In 2009 Mr Sanderson was given a warning for being intoxicated and drinking alcohol at work. On the evidence before me I am satisfied this warning was entirely appropriate but I do not consider that it was a relevant factor in the decision to terminate Mr Sanderson’s employment.

[35] Instead, I have concluded that there were a number of incidents in 2011 which ultimately led to the termination of Mr Sanderson’s employment. These included a dispute between, firstly Mr Sanderson and Ms Sheppy and then Mr Sheppy over arrangements for the payment for electricity usage at the house occupied by Mr Sanderson and Ms Millhouse. In the course of discussions about this issue I have concluded that Mr Sheppy alerted Mr Sanderson to concerns over the manner in which he spoke to Ms and Mr Sheppy. In mid-March 2011 a further issue arose relating to Ms Millhouse’s use of a work utility to transport her daughter to the bus stop and her practice of doing so in work time. I have concluded that Mr Sanderson became involved in discussions about this issue and became animated. In these respects I have relied heavily on the notes 2 taken by Ms Sheppy of a meeting on 16 of March 2011. I am satisfied that at this meeting, Mr Sheppy confirmed to Mr Sanderson that he should not become involved in matters outside of his work, that he must follow instructions, including requests that he calm down and not throw onions when he became agitated on the onion grading machine, and that he was not to smoke on or near that machine. Mr Sheppy gave Mr Sanderson a final warning relative to these issues. He also advised Mr Sanderson that he would not be allowed to work over the following few days so that he could consider whether he wished to continue to work at Kangaringa Farm.

[36] I accept the evidence of Mr Sheppy to the effect that Kangaringa Farm was committed to the “Freshcare” program which I have taken to relate to designated food standards and that part of this program involved training which was offered to all Kangaringa Farm employees through a notice which was posted on the office door early in 2011. I have concluded that neither Mr Sanderson nor Ms Millhouse sought to be involved in this training.

[37] I accept the evidence of Mr Ellison that there was at least one other occasion in late March where Mr Sanderson was involved in a heated altercation with Kangaringa Farm management.

[38] The issue which led directly to the termination of Mr Sanderson’s employment occurred on 8 April 2011.On that day, Mr Sanderson and Ms Millhouse had worked from approximately 8.00 am on the onion grading machine. I am satisfied that there was a lunch break of approximately 1 hour’s duration. Late in the afternoon Mr Sanderson complained about having to continue working. Some time shortly before 6.00 pm Mr Sanderson and Ms Millhouse were requested to continue to work to finish grading a load of onions. Mr Sanderson then left the workplace. Ms Millhouse followed him. I accept the evidence of Mr Ellison that Mr Sanderson left the workplace without advising or acknowledging him. The duration of this workday and the extent to which employees were given necessary breaks give rise to potential breaches of employment obligations and issues associated with what constitutes a reasonable request for further work to be undertaken. I have reservations about these issues but have accepted that Mr Sanderson’s behaviour in leaving his workplace without providing any advice to that effect represented misconduct.

[39] I have also accepted the evidence of Mr Sheppy that, following this incident, he endeavoured to discuss the matter with Mr Sanderson but that Mr Sanderson was not receptive to such a discussion. Mr Sheppy convened a discussion with Mr Sanderson and Ms Millhouse on the following Monday, 11 April 2011. Ms Sheppy participated in this discussion. I have accepted the evidence of Mr Sheppy that Mr Sanderson walked out of this meeting and was not prepared to discuss the matter. The meeting was later reconvened and Mr Sheppy advised Mr Sanderson that his employment was terminated.

[40] I have noted that Mr Sanderson has raised various issues associated with occupational health and safety practices. These include the condition of the utility vehicle which he customarily drove. I do not consider that these issues were related to the termination of his employment. This application is not a forum for the consideration of disputes of this nature.

Valid Reason

[41] Notwithstanding that the legislation now requires consideration of a range of factors which were previously embedded in the concept of a valid reason I have adopted the approach described by Northrop J in Selvechandron v Petersen Plastics Ltd 3 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.

[42] I have concluded that the reason for the termination of Mr Sanderson’s employment related to his approach to Kangaringa Farm management, including his compliance with instructions. Each of the incidents which occurred in 2011 would not, of themselves, represent a valid reason for the termination of his employment. However, taken collectively, it is clear that Mr Sanderson should have been aware that he had to follow management instructions and that his behaviour in leaving the work site on 8 April 2011 was inappropriate. Further, that his behaviour in refusing to participate in the meeting about this incident on 11 April 2011 was inappropriate. Those behaviours, in the context of a continually deteriorating relationship represent a valid reason for the termination of Mr Sanderson’s employment.

Notification of the reason

[43] I am satisfied that Mr Sanderson was advised of the reason for the termination of his employment on 11 April 2011.

Opportunity to respond

[44] I am satisfied that Mr Sanderson had the opportunity to respond to the proposition that his employment could be terminated in the first discussion on 11 April 2011.

Unreasonable refusal to allow Sanderson to have a support person present.

[45] Mr Sanderson was present at the meeting on 11 April 2011 together with Ms Millhouse. I have concluded that in this respect is Ms Millhouse was his support person.

Warnings

[46] I am satisfied that Mr Sanderson was warned on numerous occasions that his behaviour was inappropriate and that on 16 March 2011 he was given a final warning that repetition of such behaviour would result in the termination of his employment.

Size of the employer’s enterprise

[47] Whilst I have concluded that Kangaringa Farm is not a small business for the purposes of the FW Act I consider that the procedures Mr and Ms Sheppy adopted reflected its relatively small size, somewhat remote location and the absence of sophisticated policies and procedures.

Access to dedicated human resource management expertise

[48] I have concluded that Kangaringa Farm had minimal access to dedicated human resource management expertise.

Other matters relevant

[49] Mr Sanderson has advised that he has bipolar disorder. Whilst evidence in this respect has not been provided, I have accepted his advice in this regard. Had Mr Sanderson established to me that the management of Kangaringa Farm were aware of this disorder, it could have been a factor which the employer should have taken into account. However, I have accepted the Kangaringa Farm position that it only became aware of Mr Sanderson’s condition after the termination of his employment and cannot conclude that Kangaringa Farm acted unfairly with respect to Mr Sanderson simply because he now advises of this disorder.

Conclusion -Mr Sanderson

[50] On the evidence before me I am not satisfied that the termination of Mr Sanderson’s employment was harsh, unjust or unreasonable.

Ms Millhouse

[51] Once again I have initially considered the matters set out in s.396. There is no dispute that Ms Millhouse advised Kangaringa Farm management of the termination of her employment on 13 April 2011. The application was lodged within the statutory time limit.

[52] The issue of whether Ms Millhouse was protected from unfair dismissal depends on the nature of her employment. Ms Millhouse commenced employment in April 2008. On the evidence before me this employment appeared to be initially of a casual nature and Ms Millhouse travelled out to work at Kangaringa Farm from Keith. On the information before me I am satisfied that Ms Millhouse was paid as a casual employee. I am satisfied that approximately a year after commencing to work at the farm, Ms Millhouse’s employment took on a more regular and systematic arrangement. Ms Millhouse shared a house on the farm with Mr Sanderson. For the same reasons that had application to Mr Sanderson, I am satisfied that her employment was of a regular and systematic nature and that she had a reasonable expectation that it would continue to be so.

[53] In terms of s.396(c) I have applied the same approach that I adopted with respect to Mr Sanderson so as to conclude that the Small Business Fair Dismissal Code does not have operation.

[54] Ms Millhouse asserts that the regularity of her working hours was reduced in the weeks before the cessation of her employment. Limited information is available to me in this respect but, on the material before me, I am not satisfied that this reduction was such that, at a date prior to 13 April 2011, Ms Millhouse’s employment effectively came to an end. In that event redundancy and extension of time issues could have become relevant. The facts indicate that, whilst Ms Millhouse’s work hours may have reduced, she remained employed on a regular and systematic basis and the evidence does not differentiate between days when she did not work as a result of inclement weather and days when she did not work for other reasons. In this latter respect I have particularly noted the evidence of Mr Sheppy and Mr Ellison relative to Ms Millhouse’s preference not to do potato harvesting work and have concluded that this reduced the extent of work available to her. Again, a significant factor is my considering Ms Millhouse’s employment status relates to the fact that she was provided with a house. I have noted that she also worked a very long day on 8 April 2011 and that this does not appear to be extraordinary. I am satisfied that Ms Millhouse was protected from unfair dismissal.

[55] On the evidence before me I am satisfied that the issue of whether the termination of Ms Millhouse’s employment was a case of genuine redundancy does not arise.

[56] Consistent with s.385 the termination of Ms Millhouse’s employment can only be countenanced as unfair if I can be satisfied that she has been dismissed. Section 386 sets out the meaning of dismissed:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[57] Ms Millhouse asserts that Kangaringa Farm management and employees instituted actions that constituted unfairness and harassment so that she had no choice other than to resign. In this respect she refers to various specific issues such as the dispute over allocation of electricity charges for the house which she shared with Mr Sanderson, she refers to the instruction given to her by Mr Sheppy that she could not use the farm utility to collect her daughter from the school bus stop in work time and she refers to her assertions that Mr Sheppy repeatedly abused her.

[58] Having considered the evidence with respect to these issues, I am not satisfied that Mr or Ms Sheppy’s behaviour with respect to the electricity account was in any way inappropriate. I am satisfied that Mr Sheppy was entitled to advise Ms Millhouse that she could not continue to collect her daughter from the bus stop during work time. I am not satisfied, on the basis of the evidence of Mr and Ms Sheppy and Mr Ellison, that Ms Millhouse was the subject of inappropriate verbal abuse.

[59] Ms Millhouse also refers to concerns about the safety standards of equipment that she used with particular reference to the utility she drove for work purposes and which she also used to collect her daughter from the bus stop. This may reflect a legitimate occupational health and safety issue but I cannot characterise it as a course of conduct on the part of the employer which left Ms Millhouse with no option other than to resign.

[60] I am satisfied that when Mr Sheppy terminated the employment of Mr Sanderson he made it clear that this termination did not apply to Ms Millhouse. I have noted that Mr Sheppy required Mr Sanderson and Ms Millhouse to vacate the premises on the farm. I have considered the extent to which that action left Ms Millhouse no option other than to resign as she would have to travel to the farm each day from Keith. When Ms Millhouse initially commenced working for Kangaringa Farm she was commuting from Keith and I see no basis upon which the requirement that she revert back to that arrangement represents a course of conduct on the part of the employer which left her no option other than to resign.

[61] Finally, on 13 April 2011 Ms Millhouse resigned her position with effect from 21 April 2011. On the evidence before me I am satisfied that she did not actually work out this notice period but the very fact that she gave notice of this nature sits uncomfortably with the allegations she has made.

[62] I have concluded that the termination of Ms Millhouse’s employment was of her own volition and was not at the initiative of the employer. Accordingly, Ms Millhouse was not dismissed by Kangaringa Farm.

Conclusion

[63] For the reasons I have outlined I do not consider that Ms Millhouse or Mr Sanderson were unfairly dismissed. Orders [PR515280, PR515281] dismissing the applications consistent with these reasons will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

J Millhouse and J Sanderson on their own behalf.

S Marafiote representing Kangaringa Farm.

Hearing details:

2011.
Adelaide:
September 14.

 1   Exhibit S1

 2   Exhibit K12

 3 (1995) 62 IR 371 at 373

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<Price code C, PR515278>