s.365 - General protections

General protections dismissal dispute - employee resigned - no forced resignation - jurisdictional objection upheld - application dismissed

• [1] Karynne Thomas worked as a Registered Nurse for Greenmeadows Medical Practice Pty Ltd (Greenmeadows) from 20 June 2022 until she resigned on 28 August 2025. Greenmeadows operates a general medical practice and skin cancer clinic within the same building at Port Macquarie in northern New South Wales. Ms Thomas claims she was forced to resign because of conduct engaged in by Greenmeadows. Ms Thomas alleges there were a range of unsafe practices and procedures at the medical practice and she ultimately concluded that she could not meet her professional obligations if she continued to work at the practice. Ms Thomas filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 18 September 2025 which alleges she was "dismissed" by Greenmeadows in contravention of the general protections in the FW Act. Greenmeadows claims Ms Thomas is not eligible to make the application because she voluntarily resigned from her employment. This decision concerns whether Ms Thomas was forced to resign within the meaning of s.386(1)(b) of the FW Act.

• [2] A hearing was held via video on 18 December 2025. I granted permission for Greenmeadows to be represented at the hearing because I was satisfied granting permission would enable the matter to be dealt with more efficiently. Ms Thomas did not oppose permission being granted to Greenmeadows.

• [3] Ms Thomas provided two witness statements in support of her application. Greenmeadows relied on evidence from Dr Robert Clarke (Director/Secretary), Rebecca Meldrum (Registered Nurse), and Catherine Martin (Practice Manager). Ms Thomas and Dr Clarke were cross-examined at length during the hearing. Ms Meldrum and Ms Martin were also briefly cross-examined.

• [4] The authorities establish that a resignation will be considered forced where:

(i) There was some action on behalf of the employer which was intended to bring the employment relationship to an end; or

• (ii) Resignation was the probable result of the employer's conduct.[1]

• [5] A Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited[2] stated the following regarding the "narrow line" between a forced resignation and a discretionary choice by an employee to resign:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination."

• [6] Ms Thomas identified the following incidents as conduct by Greenmeadows which forced her to resign:

(i) An incident where a patient lost consciousness following a procedure on 13 December 2024. Ms Thomas suggested a staff shortage contributed to the events.

(ii) A diabetic patient became unwell after a procedure on 19 December 2024. Ms Thomas suggested inadequate screening occurred in relation to the patient. Ms Thomas also suggested there was no resuscitation trolley in the vicinity, no functioning duress alarm, no glucometer, and no back up nursing staff.

(iii) Ms Thomas suffered a needlestick injury while performing a biopsy procedure on 14 January 2025. Ms Thomas suggested Greenmeadows offered inadequate support following the incident.

(iv) Unsafe anaesthetic handling procedures occurred in January and February 2025. Ms Thomas filed an incident report and suggested Dr Clarke dismissed her concerns. Ms Thomas suggested a non-compliant policy was then introduced by Dr Clarke concerning the mixing of anaesthetics in February 2025.

(v) Ms Thomas had to assist the parent of a six-month old child to get emergency assistance on 12 June 2025 after the child had received an influenza vaccine at the practice earlier in the day. Ms Thomas suggested a debrief meeting was not held following this incident.

(vi) Dr Clarke did not complete an allergy screening before administering local anaesthetic to a patient on 31 July 2025.

(vii) Ms Thomas was exposed to a blood spill during a graft procedure on 8 August 2025. Ms Thomas was suffering from dermatitis which increased the risk of infection. Ms Thomas suggested Dr Clarke was dismissive of her incident report regarding this matter.

(viii) There was inadequate supervision of three registrars working at the practice on 11 August 2025. Medication to treat allergic reactions was also not stocked on site as required.

(ix) Ms Thomas identified that adult vaccination doses had been prepared to be administered to three children on 15 August 2025.

(x) A child was erroneously given a duplicate vaccination on 21 August 2025. Ms Thomas suggested a contributing factor to the error was a failure to maintain adequate records regarding indigenous and non-indigenous patients, and that this was a widespread problem at the practice.

(xi) Ms Thomas suggested a range of employment medicals and vaccination procedures were conducted by staff that were not qualified to perform these tasks. Ms Thomas also suggested the practice had inadequate and often improvised medical equipment.

• [7] The most controversial incident then occurred on 25 August 2025. A patient was attending the surgery for a skin biopsy. Dr Clarke had seen the patient to prepare for the procedure and had left before Ms Thomas arrived. Ms Thomas identified that the patient's allergy to betadine and adrenaline had not been identified by Dr Clarke. Ms Thomas left the patient to go and complain to the Acting Practice Manager. When Ms Thomas returned, the patient was alone in the room, and it appeared the patient had been treated with betadine. The patient complained of 10 out of 10 chest pain but insisted on having the biopsy procedure. Dr Clarke completed the procedure, discharged the patient, and left the room immediately afterwards. Dr Clarke says he attributed the patient's chest pain to anxiety and her posture, as opposed to an allergic reaction. Despite Dr Clarke's decision that the patient could be discharged, Ms Thomas remained with the patient to monitor her blood pressure and pulse. The patient subsequently left the practice against Ms Thomas' advice. Ms Thomas submitted an incident report later that day.

• [8] Ms Thomas was directed the next morning on 26 August 2025 to attend a meeting with Dr Clarke and Ms Martin. Ms Thomas was not provided with a formal agenda for the meeting but was told it was about what had occurred on the previous day. Ms Thomas thought the meeting would be to discuss her concerns about Dr Clarke's conduct with the biopsy patient. That was incorrect. Dr Clarke had arranged the meeting to discuss his concerns with Ms Thomas' conduct on 25 August 2025. Specifically, Dr Clarke raised concerns about Ms Thomas leaving a patient unattended to go and complain to the Acting Practice Manager, and about Ms Thomas not respecting Dr Clarke's decision that the biopsy patient was safe to be discharged. There is no dispute that Ms Thomas queried whether her employment was in jeopardy during the meeting. Dr Clarke and Ms Martin provided evidence that Dr Clarke indicated that was not the case and that Dr Clarke stated he just wanted an explanation for why patients had been left unattended by Ms Thomas.

• [9] Ms Thomas was not rostered to work on 27 August 2025.

• [10] At 7:56am on 28 August 2025, Ms Thomas sent an email to Ms Martin where she provided three weeks' notice of her resignation to take effect on 18 September 2025. Ms Thomas' email did not indicate a reason for her resignation. Ms Thomas attended work on 28 August 2025 but did not complete her shift due to being unwell. Ms Thomas sent a further email to Ms Martin at 10:58pm on 28 August 2025. Ms Thomas indicated the workplace presented unacceptable safety risks and she was resigning with immediate effect. Ms Thomas stated she would return her uniforms and requested confirmation that her employment would be finalised and her entitlements paid.

• [11] Dr Clarke responded to Ms Thomas' email at 12:10pm on 29 August 2025. Dr Clarke confirmed Greenmeadows accepted Ms Thomas' immediate resignation but indicated the lack of a three-week notice period may lead to deductions from her entitlements. Dr Clarke referred to paying Ms Thomas' entitlements within the three-week notice period and reminded Ms Thomas not to remove confidential information from the practice.

• [12] Ms Thomas replied to Dr Clarke's email at 3:26pm on 29 August 2025. Ms Thomas confirmed her employment had ended on 28 August 2025 when she resigned with immediate effect due to safety concerns. Ms Thomas requested immediate payment of her entitlements and stated there was no basis for any deductions to be made. Ms Thomas confirmed Greenmeadows' property would be returned and denied removing any confidential information.

• [13] I accept Ms Thomas genuinely felt like she had no option other than resigning from her employment with Greenmeadows. It is clear Ms Thomas had ongoing concerns about how the medical practice was being run and she appears to have lost all hope that her concerns would be addressed after the meeting with Dr Clarke and Ms Martin on 26 August 2025.

• [14] However, the words used in s.386(1)(b) of the FW Act and the authorities make it clear that the assessment of whether an employee was forced to resign is focused on the conduct of the employer.[3] That means it is the conduct of Greenmeadows which must be assessed, not the subjective impact of Greenmeadows' conduct on Ms Thomas. Specifically, I am required to assess whether Greenmeadows intended to force Ms Thomas to resign, and whether Ms Thomas' resignation was the probable result of Greenmeadows' conduct.

• [15] I do not consider it is arguable on the evidence that Greenmeadows intended to force Ms Thomas to resign. Even though Ms Thomas has clearly identified several potential deficiencies with actions that were taken at the medical practice during 2024 and 2025, there does not appear to be any basis to suggest that any of these deficiencies were a deliberate attempt to force Ms Thomas to resign. It cannot seriously be suggested that Dr Clarke would disregard his extensive professional obligations, which he has seemingly upheld throughout his lengthy career, to pursue a strategy of running his practice in such a deficient way that Ms Thomas would be forced to resign.

• [16] I also accept the evidence of Dr Clarke and Ms Martin that Dr Clarke told Ms Thomas that her employment was not in jeopardy when the issue was raised during the meeting on 26 August 2025. It appears Ms Thomas chose to include in her evidence that she raised a query about whether she should leave her employment but then did not include any reference to what response Dr Clarke provided. It appears Dr Clarke's response may have been omitted because it was inconsistent with Ms Thomas' suggestion that Dr Clarke wanted her to resign. I also accept Dr Clarke's evidence that he did not want Ms Thomas to leave because she was a highly skilled and valuable staff member that could not easily be replaced.

• [17] For these reasons, I find Greenmeadows did not engage in any action that was intended to force Ms Thomas to resign.

• [18] Ms Thomas argued that the range of safety and operational issues she identified with the conduct of the medical practice, culminating with the events on 25 August 2025 and then the meeting on 26 August 2025, mean that her resignation was the probable result of Greenmeadows' conduct.

• [19] Dr Clarke has provided detailed and comprehensive explanations in relation to all the issues raised by Ms Thomas. In many cases, Dr Clarke conceded that what had occurred was not satisfactory and accepted that issues raised by Ms Thomas were valid. It is also clear on the evidence that Greenmeadows was not dismissive of Ms Thomas' concerns and that various steps were taken to try and make improvements in response to issues raised by Ms Thomas. Greenmeadows is operating an approved and licensed medical practice and there is no evidence of any action being taken against Dr Clarke in relation to his professional conduct. I cannot accept Ms Thomas' evidence that the medical practice is being run in such a deficient manner that she was forced to resign in all the circumstances. That position is reinforced by the fact that Ms Meldrum is continuing to work for Greenmeadows as a registered nurse and it is clear Ms Meldrum takes her professional responsibilities seriously.

• [20] I do not accept that the events on 25 August 2025 and the subsequent meeting on 26 August 2025 demonstrate that Ms Thomas' resignation was the probable result of Greenmeadows' conduct. It is hardly surprising that Dr Clarke wanted to raise concerns about Ms Thomas' conduct on 25 August 2025. Ms Thomas accepts that she left a patient unattended to raise a complaint about Dr Clarke. There was no urgent necessity for the complaint to be raised immediately by Ms Thomas. Ms Thomas also does not deny that she acted contrary to Dr Clarke's professional decision and direction in relation to the discharge of the biopsy patient. While it would have been completely reasonable for Ms Thomas to raise her concerns with Dr Clarke to ensure that the patient was safe, Ms Thomas went beyond this by deliberately acting contrary to Dr Clarke's decision because she did not agree with it.

• [21] I consider Dr Clarke took a moderate and appropriate response to Ms Thomas' behaviour on 25 August 2025 by convening a meeting to understand why Ms Thomas acted the way that she did. I do not consider an employer convening a meeting to discuss actions taken by an employee can be said to be conduct that will have the probable result of the employee resigning. It is clear from the evidence of Dr Clarke and Ms Martin that the purpose of the meeting on 26 August 2025 was not to try and create an environment whereby it would be probable that Ms Thomas would resign. Dr Clarke expressly stated that he did not want Ms Thomas' employment to end because she was such a highly skilled and valuable employee.

• [22] I also accept Greenmeadows' submission that there were other options available to Ms Thomas rather than resigning from her employment. Ms Thomas could have sought assistance from her union. Ms Thomas could have requested a formal meeting focused solely on her concerns about Dr Clarke. Ms Thomas could have taken personal leave if she felt too unwell to attend the workplace. Ms Thomas could have raised her concerns externally with a safety or medical regulator. If Ms Thomas felt she was being repeatedly unfairly targeted by Dr Clarke, she may have been able to seek anti-bullying orders. Ms Thomas did not pursue any of these alternatives before she communicated her resignation on 28 August 2025.

• [23] For these reasons, I find based on an objective assessment that Ms Thomas' resignation was not the probable result of Greenmeadows' conduct.

• [24] It is unfortunate that Greenmeadows' patients are no longer receiving care from Ms Thomas. There is no dispute that Ms Thomas is an extremely skilled, capable, and experienced nurse. I consider it is likely that Ms Thomas was initially communicating a resignation with three weeks of notice to communicate to Greenmeadows how serious her concerns were about Dr Clarke's conduct. I suspect Ms Thomas thought that would mean Greenmeadows would desperately try and appease her concerns to keep her as an employee. When that did not occur, it appears Ms Thomas pivoted to resigning immediately with a view to pursuing legal action against Greenmeadows. While I can understand why Ms Thomas took these steps, I consider they were all voluntary actions that Ms Thomas decided to take because of how she subjectively felt about the conduct of Dr Clarke. I do not consider the actions were forced by Greenmeadows.

• [25] I find that Ms Thomas was not "dismissed" within the meaning of s.386 of the FW Act.

• [26] I uphold Greenmeadows' jurisdictional objection.

• [27] Ms Thomas' application is dismissed.

Mr S Chippindall from the New South Wales Nursing and Midwifery Association representing Ms Thomas_._

Mr J McIntyre from HB Legal representing Greenmeadows.

[1] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279.

[3] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47](2).

Printed by authority of the Commonwealth Government Printer