Andrea Roth v Hawkesbury District Agriculture Association [2026] FWC 3224

1 Fair Work Act 2009 s.394—Unfair dismissal Andrea Roth v Hawkesbury District Agriculture Association (U2026/1427) DEPUTY PRESIDENT DEAN CANBERRA, 25 AUGUST 2026 Application for unfair dismissal remedy – Applicant not dismissed. [1] This matter concerns an application made by Ms Andrea Roth (Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for unfair dismissal. [2] The Applicant was employed by Hawkesbury District Agriculture Association (Respondent) from June 2018 until she resigned on 24 December 2025. [3] The Respondent is a not-for-profit agricultural association responsible for the management of Hawkesbury Showground and the organisation of agricultural shows, competitions and community events. The members of its Board are volunteers. The Respondent had around 6 employees at the time this application was made. [4] The Applicant says she was forced to resign because of a course of conduct by the Respondent. [5] The Respondent disputes that the Applicant was forced to resign. It says that the Applicant resigned voluntarily and was therefore not dismissed within the meaning of s.386 of the Act. [6] Section 386 of the Act relevantly provides that 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. [7] The application was heard on 9 and 10 June 2026. Permission was granted for both parties to be represented. Mr C McArdle appeared for the Applicant and Mr D Delimihalis of Counsel appeared for the Respondent. [2026] FWC 3224 DECISION -- 1 of 10 -- [2026] FWC 3224 2 [8] For the reasons set out below, I find the Applicant was not dismissed within the meaning of the Act When is a person ‘dismissed’? [9] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)1, a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.2 [10] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park,3 Deputy President Sams noted the following when considering whether the applicant was dismissed: a. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.” b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.’ c. In Mohazab, the Full Court also said: -- 2 of 10 -- [2026] FWC 3224 3 ‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’ d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’ [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J]. [11] More recently, a full bench in Commonwealth of Australia (as represented by Services Australia) v Wilson4 said: “[42] The threshold that must be met in order for the conclusion to be reached that an employee has been ‘forced’ to resign has been stated in different terms in the authorities. Services Australia referred to the following statement of Richards SDP in Hastie v Impress Australia Pty Ltd [2008] AIRC 102; (2008) 171 IR 311 at [60] in relation to the equivalent provision then made in s 642(4) of the Workplace Relations Act 1996 (Cth): It would appear to me, then, that on an ordinary or natural reading of the term “forced”, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonably probable response to the circumstances the employee faced at the time. … [45] The type of circumstance that might result in a finding that an employee had been forced to resign by their employer’s conduct is not limited to defined, or predetermined, categories. The subsection will apply in many circumstances commonly understood to involve a ‘constructive dismissal’. That might include a circumstance in which the employer has told the employee to resign, or else they will be dismissed or suffer some other detriment as was the case in Mohazab. Cases involving a situation in which an employee has been told to ‘resign or be sacked’ have a long history: see, for example, Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers’ Guild Re Dismissal [1979] AR (NSW) 392 at 393 (Macken J). However, conduct of an employer which results in an employee being forced to resign might also include a situation in which the employer breaches or renounces an express or implied term of the employee’s contract resulting in a situation in which it is intolerable or unreasonable for the employee to continue in the employment.” -- 3 of 10 -- [2026] FWC 3224 4 [12] Finally, it is the case that “considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign”.5 Consideration of the events leading to the Applicant’s resignation [13] The Applicant’s employment commenced in June 2018 in the role of Administration and Business Manager. Her duties included managing staff, supervising finances, booking use of facilities, and attending Board meetings. She was also appointed the company secretary. [14] In September and October 2025, the Respondent undertook a review of its governance arrangements which resulted in a number of governance changes. These included the approval of a new Constitution which changed the Respondent’s structure from 55 directors to a Board of 12 directors. The new Board was elected at an Annual General Meeting held on 7 October 2025. Most of its new members had been directors of the Respondent for some time. [15] Broadly speaking, the Applicant contends that the Respondent then removed most of her job functions, such that there was no real job left for her to perform. She said the following functions were taken from her between mid-October to late December 2025: a. the day to day running of the organisation; b. acting as the public face of the organisation; c. managing the accounts; d. managing the office; e. briefing the Board; f. implementing resolutions of the Board; g. attending all Board meetings; and h. acting as the receptacle of information and procedures relating to the operation of the Respondent. [16] She also asserts she was excluded from decision making. [17] The main incidents on which the Applicant relied are as follows: Financial and governance arrangements [18] As part of the new governance arrangements, the Board implemented new financial processes, which included requiring three quotes for expenditure over $100,000, two quotes for expenditure over $10,000, and a written quote for amounts below $10,000. I accept the evidence of Mr Dalby, a Director and the Treasurer of the Respondent, that the Board determined that certain formal quoting processes were not always necessary, for example, where the owners of land leased by the Respondent determined what materials could be used on their land. [19] I am satisfied that this change in financial delegations was not directed at the Applicant, in the sense that the Respondent intended to “strip her” of this job function as she asserted. -- 4 of 10 -- [2026] FWC 3224 5 Rather, it resulted from the implementation of the governance review and a decision to introduce more stringent governance processes, which the Respondent was entitled to do. [20] The Applicant relied on a decision by the Respondent to implement a batch payment system for the payment of invoices. The decision to implement the batch payment system was made while the Applicant was on annual leave from 11 November 2025 for a period of around five weeks. [21] The Applicant objected to the introduction of the batch payment system because she said there were only a small number of invoices to pay each month and batch payments were useful only if there were a lot more invoices to pay. She said the system would increase her workload and make it harder for contractors. She also complained that she was not consulted about this change and that this was a function that had been removed from her. [22] The evidence does not support this view. The introduction of the batch payment system for the payment of invoices (which had not actually been implemented at the time she resigned) would not have removed her responsibility to ensure that the batch was correctly set up so that invoices were paid accurately. In cross examination, she agreed that this system amounted to a risk mitigation measure. [23] The Applicant also alleges that the decision to determine and implement capital works was taken away from her, or alternatively that she was not consulted about capital works. Again, the capital works that the Board decided to implement that were the subject of her complaint were approved while she was on annual leave. [24] The Respondent had money held in a term deposit account. The Respondent made a decision to roll over the term deposit from December 2025 to April 2026, while the Applicant thought it should only be rolled over until March 2026. [25] The Applicant gave evidence that decisions about the term of term deposits had been made with her input for the previous seven years. I note the Applicant was on leave when this particular decision was made. [26] To the extent these were decisions made by the Board, I am satisfied that they were decisions within the prerogative of the Board and were made with the intention of improving the governance processes of the Respondent. They were not decisions made with the intention of irritating the Applicant or forcing her to resign. Engagement of HR consultant [27] In November 2025 the Board engaged a HR Consultant to review HR related processes such as payroll and employment contracts. [28] The Applicant complained that she was not consulted about the engagement of the HR Consultant. She further asserted that she had “lost the HR function” as a result. [29] In her own evidence, the Applicant says she was informed that the Respondent was engaging a HR consultant to ensure that the Respondent was “complying with all the -- 5 of 10 -- [2026] FWC 3224 6 regulations”. She also said “no-one complained” about their employment contracts or rates of pay, suggesting that the lack of complaints negated the engagement of a professional review to confirm the Respondent’s compliance obligations were being met. [30] Again, this was a reasonable action taken by the Respondent in the context of the new governance arrangements being implemented. I find this was not undertaken with a view to force the Applicant’s resignation. Switchboard project and power outage [31] The Respondent decided to replace a main electrical switchboard. That work was approved at a Board meeting in September 2025 and it was agreed at that time that the work would be undertaken in December 2025. The Applicant was aware of this decision, having circulated the minutes of that Board meeting to members of the Board in October 2025. [32] There was an issue with the supply of power as a result of the electrical works. I accept that the Applicant was advised by Mr Hall, the President of the Association, that there may be power supply issues and she could work from home. She chose not to do so and subsequently complained to the Board because the air conditioning was not working as a result. [33] The Applicant contended that the electrical works were conducted during a heatwave and she was unable to work from home because she did not have ‘dial in facilities’. [34] The suggestion that the Respondent cut the power to the workplace during a heatwave to pressure the Applicant to resign is rejected. Exclusion from group chat [35] The Applicant says she was excluded from a Board group chat. The Respondent denies she was excluded from any group chat. Even if she was, she was not a member of the Board and the Board was entitled to communicate without including her. 12 December 2025 meeting [36] On 9 December 2025, the Applicant wrote to Mr Dalby and requested to meet with him and other directors regarding concerns she held about the management of the Respondent. A meeting took place on 12 December 2025. Mr Dalby did not attend because one of the agenda items was about a discussion the Applicant and Mr Dalby had had a few days earlier, in which there was a dispute about whether the Applicant had said she intended to resign. The meeting took over 3.5 hours to talk through the issues the Applicant sought to discuss. [37] The Applicant arranged for some other Directors to be her support persons. She says she was not allowed to have them with her for the meeting. The meeting took place without the additional Directors in attendance. [38] I am not satisfied that the evidence in this regard supports a finding that the content or conduct of this meeting was designed to force the Applicant’s resignation. -- 6 of 10 -- [2026] FWC 3224 7 18 December 2025 Board meeting [39] The Applicant attended the December Board meeting, however, she was asked to leave at around 8.30pm. The Respondent’s evidence, which I accept, is that the Board had implemented a policy that staff could not work more than 10 hours per day for health and safety reasons. The Applicant had already worked more than 10 hours that day. It was also a meeting at which the Board was to discuss staff wages and pay increases. It was therefore appropriate for the Applicant to leave the meeting prior to that discussion occurring, given she was an employee whose pay would be discussed. [40] The Applicant says that during the meeting she was told that “you are just here to take the minutes”. I accept that the Applicant was told to cease interjecting in the context of a disagreement between some members of the Board, and while the Board was discussing whether there may have been a breach of the Respondent’s Code of Conduct. [41] To the extent the Applicant alleges that ‘board duties’ were taken away from her because she was asked to leave a meeting and told to take minutes, I reject that this amounted to the removal of duties that forced her to resign. The Applicant did not seem to appreciate that she was not a member of the Board. Her proper role with regard to the Board was limited to providing a report as the Business Manager, taking minutes, answering questions and contributing as required. [42] As to the 10-hour limit placed on working hours, the Applicant accepted in cross examination that such a limit was designed to benefit her and that it was not conduct intended to force her to resign. Christmas bonus for staff [43] In prior years, staff had been given a Christmas bonus in the form of a gift card. The Board’s new financial controls meant that the payment of a Christmas bonus was required to be processed through payroll. [44] On or about 19 December 2025, the Applicant followed up with members of the Board about whether she and the other staff would receive a Christmas gift. [45] The Christmas bonus required the approval of a number of directors. Final approval was received on 23 December 2025 at which time the bonus was processed immediately. [46] The Applicant’s response to the notification of receiving the Christmas bonus was astounding. She said she received the notification while attending a Christmas lunch with other staff on 23 December 2025. She sent Mr Dalby a text message which said: “Thank you we have all received notice of our Christmas gift. We are all speechless.” [47] She complained that the bonus was less than what the staff had received in previous years. This explained the Applicant’s reference to being ‘speechless’ when she saw the amount of the gift. She made reference to the mood at the luncheon table as one of ‘contempt’, which -- 7 of 10 -- [2026] FWC 3224 8 was clearly directed towards Mr Dalby. The Applicant suggested that Mr Dalby had deliberately and maliciously waited till they were at lunch before notifying them of the bonus. [48] I reject the assertion that the receipt of a Christmas bonus, or the timing of being advised of same, could have contributed to the Applicant being forced to resign. Applicant’s resignation [49] The Applicant resigned in writing on 24 December 2025, giving four weeks’ notice to 23 January 2026. In her resignation, the Applicant sought payment of her personal leave balance and pro rata long service leave in recognition of her dedication and commitment to the Respondent, and wished the Respondent all the best for the future. There was no suggestion that her resignation was not voluntary. [50] The Respondent accepted her resignation shortly thereafter. [51] On 23 January 2026, after having been on sick leave since 12 January 2026, the Applicant sent a letter to Mr Hall in which she stated that she felt her employment had become untenable as she no longer had the support of the executive team. She made various complaints about matters that had happened, and matters that she said should have occurred but had not, during December 2025 and after her resignation. [52] By letter dated 28 January 2026, the Respondent informed the Applicant that she would be paid up to that date, in addition to a further payment equivalent to four weeks’ pay as a gesture of goodwill and in recognition of her service. Was the Applicant dismissed? [53] Based on the findings already made and the reasons set out below, I find that the Applicant was not dismissed. [54] The Applicant clearly thought that the Board were “interfering” with her right to ‘run’ the Respondent as she saw fit, and that she was being sidelined. She took exception to financial and operating decisions made by the Board and resigned as a consequence of those matters. None of those decisions, though, created conditions that were so oppressive or repugnant that the Applicant had no choice but to resign. [55] Volunteer directors have the same obligations and duties as any other directors. It was within their prerogative and responsibility to ensure that there were good governance practices in place and that their compliance obligations were being met. To that end, each of the decisions they made was reasonable and appropriate and was not intended to target the Applicant or force her to resign. [56] In closing submissions, the Applicant’s representative described the Applicant as being “irritated” by these matters. While she may well have been irritated, such irritation was unreasonable and unfounded, and irritation does not equate to conduct by the Respondent with the intent to force her resignation. -- 8 of 10 -- [2026] FWC 3224 9 [57] The Applicant had other options available to her, including making a complaint to the Board, making a complaint to Safe Work NSW regarding alleged bullying, or making an application to the Commission for a stop bullying order. [58] Finally, the medical evidence put forward by the Applicant does not support the Applicant’s contention that her health had deteriorated to such an extent that she was forced to resign. Conclusion [59] I am satisfied that the matters relied on by the Applicant, whether considered individually or collectively, do not amount to conduct or a course of conduct engaged in by the Respondent with the intention of bringing about the end of her employment. [60] The Applicant has not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act and the application is dismissed. DEPUTY PRESIDENT Appearances: C McArdle of McArdle Legal for Andrea Roth. D Delimihalis of Counsel with J Appleby of Gilchrist Connell for Hawkesbury District Agriculture Association. Hearing details: 2026. By video: June 9, 10. Printed by authority of the Commonwealth Government Printer <PR813588> -- 9 of 10 -- [2026] FWC 3224 10 1 [2017] FWCFB 3941. 2 Ibid, [47]. 3 [2012] FWA 2473. 4 [2026] FWCFB 82. 5 Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583. -- 10 of 10 --