s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - objection that applicant resigned from employment and was not dismissed within the meaning of s.386(1)(b) - whether resignation of applicant forced by conduct or course of conduct of respondent

• [1] The applicant in this matter, Ms. Ka Yen Choy (Applicant), has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by Ekera Dental Pty Ltd (Respondent), in contravention of Part 3-1, general protections, of the Act. The Respondent has objected to the application on the basis that the Applicant was not dismissed by them but voluntarily resigned her employment on 20 November 2024.

• [2] The question as to whether an applicant under s.365 has been dismissed is one that must be determined before the Fair Work Commission (Commission) is able to deal with dispute under s.368 of the Act.[1] The Applicant accepted that she provided the Respondent with a written resignation on the evening of 20 November 2024 but contended that she was forced to give that resignation because of the conduct or a course of conduct engaged in by the Respondent on the day the resignation was given. The Applicant contended that this constituted a dismissal under s.386(1)(b), and that she had been dismissed for the purposes of s.365 of the Act. For the reasons that follow, I have concluded that the Applicant was not dismissed from her employment by the Respondent on 20 November 2024.

• [3] The facts of the matter were largely uncontroversial and can be briefly stated. The Applicant had been employed as a dental assistant on a part-time basis in the Respondent's dental clinic since June 2024. On the morning of 20 November 2024 one of the Respondent's dental practitioners, Dr. Ming, spoke with another practitioner, Dr. Eyles and offered to him the assistance of the Applicant, who was at that time rostered to work with Dr. Ming, instead of the temporary dental assistant who had been rostered to work with Dr. Eyles. Dr. Eyles accepted the offer on the basis that he had a more complex workload on that day. The Applicant was then asked by Dr. Ming to work with Dr. Eyles for the first part of the day and then with Dr. Ming for the remainder of the day. The Applicant told Dr. Ming that she did not wish to work with Dr. Eyles because she would be required to stand given the particular work practices of Dr. Eyles. She said that she was suffering from leg pain which she expected would be exacerbated if she were required to stand for extended periods. Dr. Ming then advised Dr. Eyles by text message that he would not be assisted by the Applicant on that morning as had been discussed, but that he would be assisted by the temporary dental assistant that had previously been assigned to him.

• [4] Shortly thereafter there was a meeting and an exchange between the Applicant and Dr. Eyles. The Applicant said Dr. Eyles yelled at her and told her that she did not make decisions about who she wanted to work for and that "if (the Applicant) didn't like it, (she) could find another job."

• [5] Dr. Eyles disputed the Applicant's version of events. He said he spoke to the Applicant in a calm and measured way and told her that the paramount concern of the practice was the health and well-being of the patients. According to Dr. Eyles, he told the Applicant that if she could not see that, then perhaps the clinic was not the place for her to work. The practice manager, Ms. Campbell, overheard what was said.

• [6] The Applicant worked with Dr. Eyles over the course of the morning and then again after lunch.

• [7] After the first patient had been treated, the Applicant then spoke with Ms. Campbell, the practice manager, and advised her that she would not be coming to work the following day. The Applicant said she asked Ms. Campbell to arrange a temporary replacement employee to cover the Applicant's absence, but Ms. Campbell refused to do so. Ms. Campbell said that she did organise a temporary replacement which she later cancelled.

• [8] At 9.39am the Applicant sent a text message to Dr. Ming saying "I resign the job how much should I pay for Invisalign for full amount?" Dr. Ming replied by text which included the following:

Are you sure this is what you want to do? It is not unreasonable to swap rooms for the day. This happens for the best flow of patients and has always been the case. Plus the job is to work at the practice for the day regardless of who the dentist is right?

• [9] A further conversation occurred later in the day between the Applicant and Ms. Campbell. Ms. Campbell said she encouraged the Applicant to come to work the next day. There was also a discussion about the Applicant taking sick leave for the next day. The precise terms of that discussion were disputed. According to the Applicant, she then raised the possibility that she would resign with Ms. Campbell and complained that her mental health was not in a good state. Ms. Campbell said "It's OK. Tomorrow will be different." The Applicant said that Ms. Campbell asked her when she would resign and she replied that she "need(ed) time to think about it" and "who knows what will happen next year."

• [10] Later in the day there was a further conversation between the Applicant and Dr. Eyles. The Applicant told Dr. Eyles that she thought he had been rude to her. Dr. Eyles denied that he had been rude and said that it was up to the principals of the practice to decide who works with whom.

• [11] At 10.30pm that evening the Applicant emailed a resignation indicating that she was resigning effective immediately. The Applicant did not return to the workplace.

• [12] The Applicant's central contention was that the conversation with Dr. Eyles on the morning of 20 November and later in the day, in combination with her interactions with Ms. Campbell, amounted to bullying and harassing behaviour which had upset and humiliated her to the point where she had no other option but to resign her position to protect her mental health. She said the morning conversation left her distressed and visibly upset but she received no support from other staff members and instead, Ms. Campbell improperly accused her of lying to access her personal leave and pressured her to make a decision to resign. The Applicant said her experience at work on 20 November left her physically immobilised at the thought of attending work the following day and that she could not handle the thought of reliving the humiliating experience again and sent the resignation letter to save herself.

• [13] The Respondent said Dr. Eyles' discussion with the Applicant was measured and firm but did not overstep the mark and descend to aggressive or bullying behaviour. They said that Dr. Eyles' position was a perfectly reasonable one to take in that it was a matter for him and the practice, and not the Applicant, to determine which assistant should work with which practitioner. The Respondent said the decision to insist that the Applicant assist Dr. Eyles was taken in the best interests of the patients, one of whom was elderly, because Dr. Eyles regarded the Applicant as a very capable assistant and preferred to have her assist with the work as opposed to someone who was temporary and less familiar with the practice.

• [14] The witnesses' versions of the words used during the conversation were similar but not identical. The Applicant accepted that Ms. Campbell's recollection of the conversation that she overheard was accurate and I am satisfied that it was. I find that Dr. Eyles said words to the effect that the Applicant did not make the rules and that she was to assist him that day. I also find he said that he said the decision was in the interest of patient care and that if the Applicant was not happy with that, she could find work somewhere else.

• [15] There was a more marked divergence in the evidence as to the tone in which Dr. Eyles's words were delivered. The Applicant said that Dr. Eyles' face was flushed with anger and that he reprimanded her by yelling at her. Dr. Eyles denied raising his voice and said he spoke in a firm and calm manner.

• [16] I am of the view that Dr. Eyles was upset and annoyed at the Applicant because he thought that she had unilaterally decided that she would not work with him and he regarded this as a challenge to his authority. Importantly, Dr Eyles did not speak with Dr. Ming about the reason why the decision that the Applicant would work with him on that morning had been reversed. That is, he did not know that the Applicant was not seeking to make decisions about how the practice should operate, but rather the Applicant had raised a concern with Dr. Ming about the effect that extended periods on her feet was having on her. Unfortunately, this simple gap in communication most likely created a confrontationist backdrop to the conversation. Dr. Eyles had not been told why the change was being made. The Applicant did not know that Dr. Eyles had not been told why she had asked to work elsewhere and would have been taken aback by the reprimand that was given to her. Had the parties been aware of how the situation had developed, the conversation would have probably been conducted very differently. As it was, I think Dr. Eyles' words were delivered in a very firm tone in a way that undoubtably and understandably upset the Applicant. However, I do not conclude that he spoke in such an overbearing or aggressive way as to leave the Applicant without any alternative but to resign her employment.

• [17] As to the conversations between the Applicant and Ms. Campbell, I accept that the Applicant told Ms. Campbell what had happened and told her that she did not want to work the next day. The Applicant also asked that a temporary replacement employee be organised. The evidence shows that a request for a replacement employee was made of an employment agency by Ms. Campbell and subsequently cancelled.

• [18] I also accept Ms. Campbell's evidence that she spoke with her supervisor who advised her to tell the Applicant that it would be in her interests to attend work the following day given that the Applicant was still within her probation period. I also accept that this is what Ms. Campbell conveyed to the Applicant. I do not accept that Ms. Campbell called the Applicant a liar when the prospect of the Applicant taking personal leave was discussed. I accept the evidence of Ms. Campbell that she said she could not agree to the Applicant taking sick leave on the following day "because we both know you're not going to be sick tomorrow."

• [19] Both the Applicant and Ms. Campbell agreed that the Applicant's possible resignation was discussed between them. I accept that the Applicant said she needed time to think about whether she would resign and said words to the effect of "who knows what will happen next year." I also accept that Ms. Campbell had seen the Applicant's email to Dr. Ming indicating that she was going to resign and that because of that she said to the Applicant "I hope you are not resigning." I am of the view that Ms. Campbell was concerned to have confirmation from the Applicant as to whether she would be attending for work on the following day or whether alternative arrangements would have to be made, but I am not satisfied that Ms. Campbell badgered or pressured the Applicant to give her resignation on 20 November 2024.

• [20] Both Dr. Eyles and Ms. Campbell gave evidence that Dr. Eyles complimented the Applicant on her professionalism and ability during the course of the day. Ms. Campbell said Dr. Eyles told the Applicant that she was a good nurse, and that the Respondent did not want to lose the Applicant. According to Ms. Campbell, at the end of the day Dr. Eyles said to the Applicant that she was "a really good nurse and we really hope you stay but it is up to you." I accept that evidence.

• [21] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [22] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It provides, relevantly:

(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.

• [23] The Applicant relied on s.386(1)(b) only.

• [24] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli[2] the Full Bench described the test to be applied under s.386(1)(b) as follows:

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 (sic) 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.[3]

• [25] On the basis of my findings on the evidence set out above, I am not satisfied that the employer engaged in conduct with the intention of bringing the Applicant's employment to an end. Far from wanting the employment relationship to end, the evidence shows that the Applicant was valued by the practice and well regarded for her skills and professionalism. This was the very reason she was asked to work with Dr. Eyles on 20 November 2024. No-one, including Dr. Eyles, conducted themselves in a way that was intended to force the Applicant to resign. They had no reason for doing so. The incident between Dr. Eyles and the Applicant was precipitated by a misunderstanding. There was no intention to use the incident as a reason to force the Applicant to resign. The Respondent had recently accommodated the Applicant's request for reduced working hours. There was no evidence to show that there were any issues between the parties prior to this event. Had the Applicant not resigned and attended for work the next day, the relationship would have continued.

• [26] I also do not think that termination of the employment was the probable result of the employer's conduct such that the Applicant had no real or effective choice but to resign. I accept that the Applicant was very distressed by the conversation and felt that she had been treated poorly and unfairly. However, the option of continuing to work was clearly open to her. There was no evidence that there would be ongoing consequences for the Applicant because of the incident if she returned to work. The Applicant weighed her options on the evening of 20 November, including discussing the matter with her partner who "asked (the Applicant) to quit."[4] The Applicant elected to resign. She was not forced to do so by the conduct or a course of conduct engaged in by her employer. The Applicant was not dismissed within the meaning of s.386(1)(b) and the prerequisite to a valid application under s.365 has not been established.

• [27] The jurisdictional objection is upheld and the application is dismissed.

By Video using Microsoft Teams at 10:00am AEDT on Tuesday, 11 March 2025.

[1] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2017] FWCFB 3941.

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