Ai-Lin Annette Broughton v Hobart City Church Of Christ Inc. [2026] FWC 1624

1 Fair Work Act 2009 s.394—Unfair dismissal Ai-Lin Annette Broughton v Hobart City Church Of Christ Inc. (U2025/18637) COMMISSIONER TRAN MELBOURNE, 5 MAY 2026 Application for an unfair dismissal remedy – Jurisdictional objection – Employer alleges that the employee was not dismissed – Whether termination on Employer’s initiative – Whether resignation forced by employer conduct or course of conduct – No resignation - Jurisdictional objection upheld – Employee remains employed – Application dismissed [1] This is a decision about whether Mrs Ai-Lin (Annette) Broughton (the applicant) has been dismissed by Hobart City Church of Christ Inc (the respondent/employer). Mrs Broughton has been employed with the Church since November 2018. Mrs Broughton says that her employment ended on 26 November 2025 and she has made an application for an unfair dismissal remedy. The Church says that she remains employed. [2] Given the parties’ submissions, I considered it appropriate to first and separately deal with only the question of whether the Church dismissed Mrs Broughton. I am not satisfied that it did. These are my reasons. Background Facts [3] The history of this matter is complicated. The major events are not in dispute between the parties. Mrs Broughton provided me with a lengthy history; I have had regard to it, but provide only a summary as is necessary for explaining the reasons for my decision in this matter. [4] As may be expected given the nature of the employer, Mrs Broughton’s employment and her emotional and spiritual life were intertwined. Mrs Broughton has been seeing a psychologist for generalised anxiety and post-traumatic stress disorder for about 4 years, relating to experiences in her childhood. In 2022, she and her husband disclosed her disorder to the Church and also sought its assistance and support. The Church considered that the disclosure was for the purposes of pastoral care rather than in relation to Mrs Broughton’s employment. I do not consider it credible that the Church were unaware of the relevance of Mrs Broughton’s mental health to her employment. [2026] FWC 1624 DECISION -- 1 of 9 -- [2026] FWC 1624 2 [5] The Church initially employed Mrs Broughton as Church Operations Manager for 12 hours per week. In 2019, she took on additional duties as International Student Ministry Director for an additional one day per week. This work ended in June 2024. [6] Around April 2022, she took on additional hours doing finance-related tasks. To support her finance work, the Church assisted Mrs Broughton with a TAFE course that it paid for, although the study time was her own time. Mrs Broughton continued this finance-related work until she went on personal leave from her employment. [7] In April 2025, the Church undertook a performance review; Mrs Broughton says for the first time in 6 years. Mrs Broughton found the performance review very distressing and the behaviour of Mr Clemow and Mr Petrusma belittling and intimidating during the review. It is not clear to me that – until the making of this application – Mrs Broughton informed the Church that she had found the review distressing because of behaviours of the Church leaders who conducted the review. Those leaders were Mr Simon Clemow, Mrs Broughton’s supervisor, senior minister for the Church, Ms Naomi Cooper, Treasurer and Board member and Mr Dirk Petrusma, Associate Pastor and Board member. Mrs Broughton attended the meeting with her mentor, Ms Wini Heron. Ms Heron is not an employee of or otherwise connected with the Church; but is connected with the wider spiritual community that the Church is a part of. [8] Around June 2025, the Church asked Mrs Broughton to sign a new contract of employment which would change her classification and rate of pay to what it was prior to her undertaking the ministry duties that ended in June 2024. The Church also said that as it had continued to pay her the ministry rate, that she had been overpaid. It is not clear if, at that time, the Church sought to recover the overpayment. [9] On 25 June 2025, Mrs Broughton wrote to the Church. In the cover email, she said I have attached a detailed letter outlining my concerns regarding pay classification, ministry responsibilities, changes to my role, and how these developments have been communicated and managed. [10] She attached 3 documents: (1) her proposed contract of employment; (2) an email about the contract; and (3) her letter. [11] The letter was 5 pages long. It dealt with the following topics: (1) Misclassification of Pay since April 2023; (2) Comment on “Overpayment” in April 2023; (3) Concerns about long service leave and job security. The letter included a timeline from November 2018 until April 2025. Mrs Broughton describes the letter in her submissions as a complaint about Mr Clemow. However, the letter does not explicitly complain about Mr Clemow’s behaviour towards Mrs Broughton. In the timeline, Mrs Broughton detailed some matters that, with much extrapolation could be construed as complaints: a. In 2021, Mrs Broughton raised with Mr Clemow that she needed additional support in 2021 due to the strain of unpaid ministry responsibilities; -- 2 of 9 -- [2026] FWC 1624 3 b. In 2023, Mr Clemow did not provide coaching and discouraged her from completing a program that would have been an alternative path to becoming a minister, which Mrs Broughton had been participating in since January 2023; c. In April 2024, Mr Clemow informed her that Church elders declined to continue to fund her ministry role, saying that they “wondered what [she] did with [her] time;” a comment that she found hurtful; d. In October 2024, Mr Clemow approached her with frustration about her non- attendance at church and that she would have appreciated more pastoral concern in that approach; e. In April 2025, Mr Clemow and Mr Petrusma made comments during her performance review that she found distressing. She says those comments were: i. That she had left the church because she was not attending Sunday services (allegedly said by Mr Petrusma); ii. That it was unreasonable for her to expect job security when the Church needed to balance its books (allegedly said by Mr Petrusma); and iii. That she should feel free to seek employment elsewhere and did not need to feel a sense of loyalty to the Church (allegedly said by both Mr Petrusma and Mr Clemow). [12] Mrs Broughton started a period of personal leave around this time. The Church says that her last day at work was 26 June 2025. [13] Mrs Broughton said that around this time, she asked to work remotely or to take unpaid leave. She provided medical certificates saying that she was “unfit to resume her usual occupation.” [14] On 9 July 2025, Mrs Broughton and her husband met with Mr John Kingshott, Board member of the Church, and Ms Cooper. The Church said that it wanted to mend the relationship. Mrs Broughton also said that she had wanted to resolve issues, although she says that the Church told her that her relationship with her supervisor was toxic and unsalvageable. Despite this, it seems that the parties agreed to mediation before Mr James, and a meeting that would include Mr Clemow was arranged for 16 July 2025. [15] On 10 July 2025, Mrs Broughton removed her personal items from the workplace. Her husband says that he advised her to do so. -- 3 of 9 -- [2026] FWC 1624 4 [16] The meeting on 16 July 2025 did not go ahead. The Church says this was because it was not clear that Mrs Broughton had agreed to attend; Mrs Broughton’s husband said this was because if Mr Clemow would not attend the meeting, it should be cancelled. Later that evening, Mr James sent an email to Mrs Broughton on the Church’s behalf. The email included: Despite being clearly directed in the 5 June 2025 letter to contact John Kingshott, Chair of Elders, with any queries, on 25 June 2025 you emailed your concerns to all the Elders and to Anthony McGlone—who is no longer part of our church. This was completely inappropriate, as you effectively went over the head of the senior minister and engaged in conduct that constitutes workplace bullying. This escalation has significantly inflamed the situation and damaged working relationships, particularly by undermining the reputation of the senior minister and the church. These actions have significantly strained relationships and made a constructive way forward unworkable. [17] The email ended with: Please be aware that you have a balance of 8 hours of Annual Leave remaining. Any absence beyond that will be granted as Leave Without Pay. Please advise how you wish to proceed and clearly indicate your intentions. Should you choose to resign, as per Darin’s suggestion in his email of 26 June 2025, we will pay out 7 weeks’ salary as pro rata long-service leave as a gesture of goodwill. We remain committed to a timely and respectful resolution, for the wellbeing of all involved. [18] Around 21 July 2025, Mrs Broughton asked to work from home. The parties exchanged correspondence about this, with Mrs Broughton asserting that she could perform 80% of her tasks from home, and the Church of the view that she could only perform 20% of her tasks from home. The outcome was that there was never an agreement for Mrs Broughton to work from home. She remained off work on sick leave. [19] After the above email and Mrs Broughton’s response (by her husband on her behalf) that she too remained committed to a resolution, the Church suggested an external mediator recommended by Churches of Christ, Victoria and Tasmania (the overarching body to which the Church belonged). [20] The parties then engaged in mediated discussions in late July and early August. A report was prepared following the mediation, which concluded with: While issues were discussed and apologies offered, a resolution on the pathway forward was not reached. Participants indicated a need for further time to reflect on the discussion and consider future steps they wish to take. Simon [Clemow] conveyed a desire for a swift resolution due to operational pressures, and Annette [Broughton] indicated a need for external advice regarding future discussions with the Elders, particularly concerning her employment. [21] Mr Broughton gave evidence that on 26 August 2025, the mediator told him that the Church hoped Mrs Broughton would resign. -- 4 of 9 -- [2026] FWC 1624 5 [22] On 28 August 2025, Mrs Broughton provided the Church with a Workers Compensation Certificate of Capacity. That certificate marked that Mrs Broughton had no current capacity for any work from 2 July 2025 until 18 September 2025. [23] In later certificates dated 18 September 2025, 15 October 2025 and 6 November 2025 covering the period from 18 September 2025 until 3 December 2025, the certificates marked that she had capacity for suitable alternative work for 3 days per week described as: Not suitable to return to working for Hobart City Church of Christ Inc. OK to engage in part-time work for Clarity Health. [24] Around 4 September 2025, Mrs Broughton made a workers compensation claim. The Church disputed the claim. A hearing was conducted on 26 November 2025 before the Tasmanian Civil and Administrative Tribunal about whether there was a reasonable basis for the Church to dispute the claim. The outcome was communicated on the same day, which was that the employer did have a reasonable basis for disputing liability and so payments could cease until a final determination on liability. [25] On multiple occasions, Mr Broughton wrote to the Church and asked about Mrs Broughton’s employment status. The Church replied as follows: • On 1 August 2025, Mr Kingshott replied, Yes she is still an employee. What makes you ask that? • On 19 October 2025, Ms Cooper replied, As per the email sent on 01/08/2025 (as below) – there has been no change to Annette’s employment status from this end. • On 17 November 2025, Mr James replied, To be clear, Annette’s employment status has not changed. • On 26 November 2025, Mr Kingshott wrote, From our side, Annette’s employment status remains unchanged and the church endorsed her return to work program developed by Ryan Kay at Actual Rehab dated 6 November 2025 which clearly stated that Annette is not to return to work at Hobart City Church of Christ, but to return to different employment with a different employer. • On 27 November 2025, Mr Kingshott wrote, To clarify, Annette continues to be an employee of Hobart City Church of Christ Inc. At no stage has the church terminated her employment. It is Annette who has chosen not to return to work with the church, consistent with the return-to-work plan developed with her by Ryan Kay at Actual Rehab, which specifies a return to different employment with a different employer. -- 5 of 9 -- [2026] FWC 1624 6 [26] Mrs Broughton made this application on 26 November 2025. Consideration Relevant Law [27] Section 386 of the Fair Work Act 2009 (Cth) defines 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. [28] Section 386(2) of the Act deals with fixed term contracts and s 386(3) deals with demotions; neither subsection is relevant to this matter. This is because Mrs Broughton argues that the Church dismissed her within the meaning of s 386(1)(a). In the alternative, Mrs Broughton argues that if she resigned, it was forced due to conduct or a course of conduct engaged in by the Church, within the meaning of s 386(1)(b). Termination on the employer’s initiative [29] In considering whether there is a termination of the employment on the employer’s initiative, I must consider what has brought the employment to an end. This is not a heat of the moment resignation matter. Indeed, it is not a resignation matter at all. There is no evidence of resignation, nor does Mrs Broughton allege that she has resigned (except in the alternative, which I deal with below). In those circumstances, the Full Bench in Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75] said that: the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. [30] I understand that the basis of Mrs Broughton’s submission that she was dismissed is that the Church terminated her employment on its initiative by accepting the certificate of capacity which provided that she had capacity for work but not at Hobart City Church of Christ Inc. [31] The oddness of this matter is that the Church continues to say that Mrs Broughton’s employment status has not changed, that is, she is still employed with the Church. It is simply the case that due to her certificates of capacity, she cannot return to work at the Church, but she has capacity to work elsewhere. It is not clear to me why Mrs Broughton does not accept this. Similar to abandonment of employment matters, the employment relationship does not have to come to an end because Mrs Broughton cannot, at present and due to her health, -- 6 of 9 -- [2026] FWC 1624 7 return to work in her pre-injury employment. Nor can the Church request that Mrs Broughton return to work or make any adjustments, because the alternative that is advised on the current certificate of capacity is work, but not for the Church. [32] There is the possibility that by having made an application for an unfair dismissal remedy, Mrs Broughton has ended the employment but on the basis that there was nevertheless a dismissal within the meaning of s 386 of the Act. The Church asserts that Mrs Broughton remains employed, including asserting that they are of the view that she continues to remain employed. They do not appear to be of the view that by making the application for an unfair dismissal remedy, Mrs Broughton brought to an end the employment relationship. [33] I am satisfied that there is no termination at the initiative of the employer in the circumstances where they accept the advice contained within a certificate of capacity and do not take any steps to end the employment. [34] To the extent that Mrs Broughton’s argument is that the Church has caused her incapacity to work for them, that is a matter of liability in a personal injury and workers’ compensation claim. It is the case that an employer can be liable for an injury to an employee and for that employee to remain employed. In this matter, the employer continues to consider that Mrs Broughton remains employed. Should her medical advice change because of successful treatment, such that Mrs Broughton is able to return to work, I expect that the Church would take the appropriate steps and make appropriate adjustments to enable her return to work. Forced resignation [35] The Full Bench in Commonwealth of Australia (as represented by Services Australia) v Wilson [2026] FWCFB 82 at [40]-[44] recently reiterated that 2 conditions are required for a resignation to be a dismissal within the meaning of s 386(1)(b). The first condition is that the employee must have no effective or real choice but to resign, and the second condition is that the employer’s conduct (including by way of omission) forces the employee to have no choice but to resign. [36] However, there is a third necessary condition: a resignation. Mrs Broughton’s case is that she has never resigned. Nor does the Church assert that Mrs Broughton has resigned. While there was much correspondence on Mrs Broughton’s behalf asking about whether she remained employed (to which the employer continued to reply that she did), there simply was no action of Mrs Broughton that a reasonable person could take to be a resignation. [37] As discussed above, it is possible that by making an application for an unfair dismissal remedy, Mrs Broughton could be considered to have resigned. But it strikes me that she herself does not consider that this has occurred. She is misguided or misinformed or poorly advised about the current employment situation and I recommend that she accept the Church’s view that she remains an employee. Her true dispute with the Church is in relation to a personal injury and she should focus her energies upon that. -- 7 of 9 -- [2026] FWC 1624 8 [38] I am of the view that there is no explicit resignation, nor is there any action from which I could infer resignation. So, I do not consider that it is necessary for me to enquire whether there was conduct or a course of conduct on the part of the employer that forced Mrs Broughton to resign or for which the end of employment was the probable result. [39] For completeness, I observe that if the argument is that it was the Church’s conduct in accepting the certificate of capacity advice about alternative employment that terminated the employment, the Church has behaved in the only way it can. It would not be appropriate for it to require Mrs Broughton to return to work at the Church, against medical advice. Accepting the advice does not force Mrs Broughton to resign because she can remain employed but is currently unable to work for that employer. Treatment and further medical reviews may result in a change to that advice. I do not give any weight to Mr Broughton’s evidence that the mediator informed him that the Church hoped Mrs Broughton would resign. First, this is hearsay; second, even if I gave the evidence weight, it demonstrates at its highest that the Church harboured a hope, not that it engaged in any conduct to force a resignation or from which the ending of employment was the probable outcome. [40] I do not consider that I must imply that Mrs Broughton has resigned by making this application. She herself does not consider that she has because she argues that the Church’s actions have dismissed her. I am not satisfied that the Church has dismissed her. The Church considers that she remains employed. I am satisfied that Mrs Broughton remains employed with the Church. Date of the application [41] There is the matter that Mrs Broughton filed her application on the same day that she alleges her dismissal took effect. Section 366(1) of the Act requires that an application is made within 21 days after a dismissal took effect or such further time as the Commission may allow in accordance with s 366(2). For Mrs Broughton’s application to be made in accordance with s 366, the earliest date that she could have made it was 27 November 2025, being the day after the dismissal took effect. The Full Bench in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [42] said that a premature application is an irregularity in the manner in which the application is made, and s 586 of the Act provides the Commission with the discretionary power to waive the irregularity. To the extent that it is necessary, I exercise the discretion to waive the irregularity in the manner in which Mrs Broughton’s application was made. Conclusion [42] I am satisfied that the Church has not dismissed Mrs Broughton and that she remains employed. As such, she cannot make an application for an unfair dismissal remedy. I dismiss her application. -- 8 of 9 -- [2026] FWC 1624 9 Order [43] I order that Mrs Ai-Lin (Annette) Broughton’s application under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy under FWC matter U2025/18637 filed on 26 November 2025 be dismissed. COMMISSIONER Appearances: Mrs A Broughton, on her own behalf. Mr J Kingshott, on behalf of the Respondent. Hearing details: 2026. Hobart. 17 April. Printed by authority of the Commonwealth Government Printer < PR799751> -- 9 of 9 --