A Queensland miner dismissed for making comments about engaging in anal sex and urging a coworker to “finger themselves” has lost his case at the Fair Work Commission. The worker, who made the comments over two-way radio, claimed they were condoned as supervisors were listening, noting that one was heard laughing. However, the Commission quashed this argument, finding his comments were “egregious” and breached his employer’s zero-tolerance radio communication policies.
In this article, we look at the events of this unfair dismissal QLD case Mr. Garth Saunders v Jellinbah Mining Pty Ltd [2026]. Later, we look at the recent high-profile case of Tabcorp’s CEO, who was fired for allegedly saying he would perform oral sex on a senior government official.
Mr. Garth Saunders started working at Jellinbah Mining in April 2022. At the time of his termination of employment, he worked at the Bowen Basin mine in central Queensland. Jellinbah Mining operated under strict protocols regarding two-way radio communication. This was particularly the case after a June 2022 memorandum that sought to address the use of offensive language and swearing. The memorandum explicitly labelled such behaviour as unlawful.
By October 2024, Jellinbah Mining introduced “quite robust” training involving an extensive slide deck titled “Respect at Work.” This material specifically cautioned that even if someone did not object to unacceptable behaviour at the time it occurred, it did not mean that the behaviour is welcome. The training said there was “zero tolerance” for any discussions of a sexual nature, as well as improper personal questions. This was reinforced by Jellinbah Mining’s code of conduct as well as its sexual harassment and hostile working environments policies.
The events that led to Mr. Saunders’ termination of employment occurred between 23 April 2025 and 25 April 2025. Over the two-way radio, between midnight and 3:30 AM, a formal complaint was made alleging that Mr. Saunders engaged in a series of exchanges that were later described as “inappropriate and offensive.” The allegations included asking a coworker’s partner “if they would do MDMA as a way of encouraging them to engage in anal sex.” Mr. Saunders also suggested a coworker “finger themselves in front of their sexual partner.”
He was also alleged to have said that the worker should film the reaction of their partner during intercourse “so we can all enjoy it.” Finally, Mr. Saunders also allegedly encouraged a coworker to “train” their sexual partner more in response to that person pushing the coworker’s face away during sex.
On 8 May 2025, Jellinbah Mining initiated a show cause process, telling Mr. Saunders that his conduct violated its policies. The company offered Mr. Saunders the opportunity to review the audio recordings, ensuring he had the means to respond to the evidence. In his written response, Mr. Saunders accepted full responsibility and expressed remorse. He described the incident as an awakening and pleaded for leniency. He cited his unblemished record and his family’s reliance on his income.
Despite this, Jellinbah Mining determined that his conduct warranted termination of employment, effective 21 May 2025. However, Mr. Saunders’ support person asked the company if he could resign instead. He was subsequently given that opportunity and resigned.
Mr. Saunders subsequently lodged a Fair Work unfair dismissal claim, choosing to represent himself during proceedings. He denied making the remark suggesting his coworker “train” his sexual partner, but admitted to the other remarks. However, he argued that the audio recordings did not accurately reflect the timing of the conversations he had over radio. Regarding the first allegation, he claimed there was a “brief pause” between the reference to MDMA and the reference to anal sex, suggesting they were separate remarks. He further explained that his mention of MDMA was based on “podcasts about using MDMA as a way of breaking down barriers based on couples therapy.”
Mr. Saunders also contended that his comments were often condoned and treated inconsistently by supervisors. He alleged that they were listening to the channel and that the laughter of one in particular “could be heard at points on the recording.” He claimed that he was not “any more of an instigator than anyone else.” Mr. Saunders also appealed to the Commission, citing his personal circumstances. He said that his was a single income household and that his family relied on his salary. Mr. Saunders told the Commission that he was “very sorry and embarrassed by the things I have said.”
Jellinbah Mining raised a jurisdictional objection to Mr. Saunders’ Fair Work unfair dismissal claim. The company argued that because Mr. Saunders had asked to be given the chance to resign rather than face termination of employment, no dismissal had occurred. The employer contended that the nature of the radio comments provided a valid reason for termination of employment.
Mr. Saunders’ Fair Work unfair dismissal claim was heard by the Fair Work Commission in February 2026. It said that it was “very clear” that his employment ended at the initiative of Jellinbah Mining. This was because the company had already handed Mr. Saunders a termination letter effective from 21 May 2025. The Commission said that his resignation “was essentially a constructive dismissal” or caused by Jellinbah Mining’s conduct.
The Commission next turned to Mr. Saunders’ sexual comments. It did not accept that he made the comment suggesting his coworker “train” their sexual partner. However, it said that his other admitted comments were “egregious in and of themselves.” The Commission specifically rejected the explanation regarding couples therapy podcasts. It found this could not be accepted “in light of the language that was used” and within the context of discussions that took place over the radio that night.
Regarding the issue of supervisor condonation, the Fair Work Commission ruled that it should be “pretty clear” that a supervisor’s inaction does not override explicit company policies. It said that even if supervisors were aware of Mr. Saunders’ comments, it did not outweigh the “egregiousness” of his behaviour.
Ultimately, the Commission found that despite the “adverse financial impacts” and Mr. Saunders’ three years of service, his termination of employment was justified. The Commission noted that his conduct had the “potential to harm others” and give rise to vicarious liability for Jellinbah Mining. Mr. Saunders’ Fair Work unfair dismissal claim was therefore thrown out.
Another recent example of a termination of employment for sexualised comments is the high-profile Fair Work general protections case Adam Rytenskild v Tabcorp Holdings Pty Ltd [2024]. Adam Rytenskild was the CEO and managing director of gambling giant Tabcorp, having been appointed to the role in June 2022. He had been with the company since the year 2000 and had an “unblemished and exemplary service record,” according to Fair Work Commission records. The alleged incident that led to his termination of employment took place during a closed-door meeting with two male colleagues in August 2023.
An anonymous complaint to Tabcorp alleged that Mr. Rytenskild had made an inappropriate and offensive comment about a female leader of the Victorian Gambling and Casino Control Commission. According to reports in the Sydney Morning Herald, Mr. Rytenskild allegedly said he would perform a sex act on the female regulatory official if it would help secure an extension to a lucrative, 20-year wagering licence in Victoria. The licence was valued at approximately $860 million.
Tabcorp launched an internal investigation into Mr. Rytenskild’s remark, which found the allegation to be substantiated. The company’s board deemed his comment to be inconsistent with his continued leadership of Tabcorp. On 13 March 2024, Tabcorps board met to discuss the terms of Mr. Rytenskild’s departure. This included drafting two alternative ASX announcements for either resignation or termination of employment.
On 14 March 2024, Mr. Rytenskild arrived at Tabcorp’s Melbourne offices for scheduled meetings. However, he soon found himself summoned to an unscheduled 11 am meeting at the offices of business management consulting firm Korda Mentha. He was not informed of the purpose of this meeting beforehand. Meanwhile, his attempts to contact the board chairman and Tabcorp’s chief legal and risk officer were ignored.
During the meeting, Tabcorp’s board sub-committee levelled the allegation of using inappropriate language at Mr. Rytenskild. He said that he did not remember making the comment. He also argued that it was not the kind of language he would usually use. But despite this, the board told Mr. Rytenskild that it had already decided on termination of employment. He was given until 3 pm that day to decide whether to resign or face immediate dismissal. Mr. Rytenskild asked for an extension until the following day to seek legal advice.
However, the board granted him only until 4 pm that day. At 3:28 pm, Mr. Rytenskild emailed the board chair stating: “That being the case I regrettably agree to resign.” He was then paid a six-month notice period of $750,000, half of his $1.5 million base salary. However, the exit resulted in him forfeiting between $5 million and $10 million in unvested shares and options. He also had to forfeit potential bonuses that could have doubled his annual earnings to $3 million.
Mr. Rytenskild remained on gardening leave until his resignation took effect on 14 May 2024.
Mr. Rytenskild subsequently lodged a Fair Work general protections claim, to which Tabcop raised a jurisdictional objection. It argued that Mr. Rytenskild had voluntarily resigned and was therefore not dismissed under the law. The company contended that Mr. Rytenskild himself first raised the option of resignation, It said that he was an “experienced and sophisticated businessman” capable of making a rational choice.
The company suggested that as CEO of a multi-billion dollar company, Mr. Rytenskild had the opportunity to consult his wife, a senior human resources professional, and a lawyer before making his decision. Tabcorp also raised a jurisdictional objection based on its belief that Mr. Rytenskild filed his Fair Work general protections claim nearly two months after the 21-day statutory deadline.
In his Fair Work general protections claim, Mr. Rytenskild countered that Tabcorp’s proposition to be dismissed or resign was a “Hobson’s Choice.” That is, an illusion of choice where all options led to the same result. He contended that the board had already decided on termination of employment before the 11 am meeting began. Mr. Rytenskild highlighted that he was “thoroughly unprepared” for the dismissal meeting and was denied a copy of his contract or the investigation report. He argued that Tabcorp’s conduct caused or resulted in the termination of his employment.
Regarding the timing of the application, Mr. Rytenskild maintained his employment continued through a period of gardening leave until 14 May 2024. This would make his filing on 4 June 2024 within the 21-day statutory limit.
Mr. Rytenskild’s Fair Work unfair dismissal claim was heard by the Fair Work Commission in November 2024. It rejected Tabcorp’s jurisdictional objections, deciding that Mr. Rytenskild’s claim was filed within time and that he had indeed been dismissed. The Commission ruled that the dismissal took effect on 14 May 2024. It said that the “core purpose” of an employee being placed upon gardening leave is to keep them employed.
On the matter of the resignation, the Commission found that Mr. Rytenskild was forced to resign. It said that the board’s actions were a “carefully stage managed ‘process’” intended to bring the employment to an end. The Commission observed that Mr. Rytenskild was not presented with any scenario or option that would have resulted in him remaining employed after Tabcorp’s deadline of 4pm on 14 March 2024.
The Commission found that the two choices offered were an “ultimatum” and a “means to the same end.” It criticised Tabcorp for being “ambiguous” about whether Mr. Rytenskild would receive notice if he were terminated. This created a “financial incentive” for him to resign to ensure he received some payment. The Commission said that Tabcorp’s board had “consciously and strategically” worked out how it would act.
Following the jurisdictional victory at the Fair Work Commission, Mr. Rytenskild won the right to proceed with his case. It was scheduled for a hearing in the Federal Court. However, on 18 September 2025, it was confirmed that Mr. Rytenskild and Tabcorp had reached an out-of-court settlement.
His lawyers released a statement saying that the settlement allowed him to “move on to the next phase of his career. While the specific financial terms of the settlement remain confidential, the agreement brought to a close a legal dispute that lasted over 18 months.
Read more: Have I Been Sexually Harassed?
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