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[2025] FWC 3849
General information, not legal advice.
Fair Work Commission
2025-12-16
Original judgment source is linked above.
[2025] FWC 3849 [Note: An appeal pursuant to s.604 (C2026/27) was lodged against this decision.]
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - whether Applicant was dismissed - no dismissal.
[1] Ms Kia Bishop (Applicant) has made an application for an unfair dismissal remedy. She claims that she was forced to resign from her employment with Very Helpful Chats Pty Ltd (Respondent).
[2] The Respondent raised a jurisdictional objection on the ground that the Applicant resigned and was therefore not dismissed within the meaning of s386 of the Act.
[3] 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.
[4] The application was heard on 2 December 2025. The Applicant was self-represented and Ms Griffin, the Respondent's CEO, appeared for the Respondent.
[5] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.
(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 probable 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.
'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.'
[8] An employee seeking to establish that their employer should not have accepted their resignation will need to demonstrate two things: first, that there were circumstances that would cause a reasonable person in the employer's position to question whether the employee was conveying a real intention to resign; and second, their employer was or ought to have been aware of those circumstances. In the absence of such considerations, where an employee resigns in clear and unambiguous terms, the Commission cannot and should not intervene.
[10] The Respondent is a small health practice that provides telehealth psychology and occupational therapy services to clients across Australia via telehealth.
[11] The Applicant was employed by the Respondent on a part time basis as a Provisional Psychologist from March 2024 until she resigned on 15 September 2025.
[12] As a Provisional Psychologist, the Applicant was required to perform her duties under supervision.
[13] For the majority of the Applicants' employment, Ms Griffin was her Board-Approved Primary Supervisor as well as her employer. It is not in dispute that a supervisory relationship is not dependent on an employment relationship and vice versa. In this regard, at the commencement of the Applicant's employment with the Respondent, she had a supervisor who was not an employee of the Respondent.
[14] Ms Griffin gave evidence that a number of concerns arose during the Applicant's employment regarding her performance and conduct.
[15] In May 2025 the Applicant was given permission to undertake secondary employment as she was employed on a part time basis.
[16] In June 2025 the Respondent said it became aware that the Applicant had updated her LinkedIn profile to refer to herself as a "Psychologist" and had omitted the required designation of "Provisional" which it said constituted a breach of her obligations under AHPRA registration rules.
[17] On 24 June 2025 a joint supervision session was conducted with the Applicant, Ms Griffin and the secondary supervisor. Ms Griffin gave evidence that during this session she became aware that the Applicant had not declared her secondary employment to AHPRA in accordance with its requirements. Ms Griffin then informed the Applicant that her files would be audited, and two meetings were scheduled to address the Respondent's performance and conduct concerns, however the Applicant was sick on both occasions.
[18] On 17 July 2025, the Applicant requested a change of primary supervisor, meaning Ms Griffin would no longer supervise the Applicant, to which the Respondent agreed.
[19] The Respondent said it decided to commence a formal performance management process, however the Applicant commenced a period of sick leave and lodged a Workcover claim on 7 August 2025 alleging psychological injury. The claim was subsequently rejected by the insurer.
[20] The Applicant then provided medical certificates covering the period from 7 August to 14 September 2025. She formally resigned the following day.
[21] The Applicant had stated in her application that her dismissal date was 25 August 2025, and this was the date she made this application. I note at this date she had not resigned and had not been dismissed. Ms Griffin gave evidence that this surprised her as she did not know that the Applicant did not intend to return to work. Upon receipt of this application, Ms Griffin emailed the Applicant to seek to clarify her intentions but did not receive a reply until 15 September 2025 when the Applicant sent two emails stating that she was resigning effective that day.
[22] The Applicant submitted that she was forced to resign because she was left without supervision, without access to the Respondent's IT systems and without the means to perform her professional duties.
[23] She gave evidence that during her employment there were no performance management processes commenced or warnings issued to her. She said that as both her Principal Supervisor and employer, Ms Griffin held dual authority over her which created a conflict of interest.
[24] The Applicant said that when Ms Griffin raised concerns about her LinkedIn profile, she immediately corrected it. She also said that the manner in which Ms Griffin provided feedback to her at that time marked the start of the breakdown of the supervisory relationship.
[25] In terms of the supervisory meeting on 24 June 2025, the Applicant said the discussion focussed on her role with her secondary employer which she found distressing.
[26] She said she attended professional development training on 21-22 June 2025 but was not paid for this, as had been the case for previous training. This lack of support caused her distress, and she said her doctor certified her as unfit for work from 24 June to 2 July 2025.
[27] On 30 June 2025 she contacted AHPRA to seek clarification regarding her obligations as she felt the supervisory relationship had broken down. She subsequently arranged for her previous supervisor to resume in the role as her primary supervisor.
[28] On 7 July 2025 the Applicant said that Ms Griffin withdrew her supervision of the Applicant without notice, which left her non-compliant through no fault of her own. She then initiated a formal change of supervisor on 16 July 2025.
[29] The Applicant gave evidence that Ms Griffin then reviewed her client records and transcripts without the client's consent and then provided "subjective commentary" in her concluding paperwork for AHPRA without giving the Applicant the opportunity to respond. The Applicant said this created a procedurally and psychologically unsafe workplace for her and she was then certified as unfit to work from 7 August 2025.
[30] On 20 August 2025 the Applicant said she filed a Stop Bullying application with the Commission. She also made this application on 25 August 2025.
[31] The Applicant said that in late August the Respondent deactivated her work email account without discussion or notice and revoked access to her client records.
[32] She said she formally resigned on 15 September 2025 under duress, and that the Respondent's conduct caused her significant psychological distress, financial loss, and reputational harm.
[33] The Applicant submitted that the withdrawal by Ms Griffin as her supervisor meant she was unable to lawfully practice as a provisional psychologist without paying for external supervision herself. She also submitted that the removal of her email and systems access meant she could not perform her role and this forced her to resign.
[34] As noted earlier, the onus is on the Applicant to prove that she had no real or effective choice in the circumstances but to resign because of the Respondent's conduct.
[35] For the reasons given below, I am satisfied on the evidence that the Applicant was not dismissed.
[36] First, I am satisfied that the end of the supervisory relationship did not end the employment relationship. The evidence is clear that one relationship is not dependent on the other. The Applicant had an external supervisor when she commenced employment with the Respondent and could have continued employment with an external supervisor.
[37] I do not consider there is anything inappropriate about Ms Griffin, as the Applicant's supervisor, reviewing her files. In fact, I would expect that this would be routine given a supervisor is ultimately responsible for signing off the supervisee as competent at the conclusion of the supervisory period.
[38] Clearly the Applicant was unhappy about, and did not agree with, the concerns the Respondent held about her performance and conduct. However, it is reasonable and appropriate for an employer to raise such concerns where they exist, and this does not equate to conduct, or a course of conduct, designed to force the Applicant to resign.
[39] The removal of the Applicant's access to the Respondent's systems, in circumstances where the Applicant had already made this application, was also not conduct designed to bring about the end of the employment relationship.
[40] There is nothing else in the conduct of the Respondent that in my view can be objectively seen to have been undertaken with the intent to end the employment relationship.
[41] These matters, whether considered individually or collectively, cannot reasonably be said to give rise to a finding that the Respondent intended to bring about the end of the Applicant's employment, such that she had no real or effective choice but to resign.
[42] 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 this application is dismissed.
[5] Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.
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Kia Bishop
Very Helpful Chats Pty Ltd [2025] FWC 3849