Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether Applicant was dismissed - no dismissal.

• [1] This decision concerns an application made under s.365 of the Fair Work Act 2009 by Ms Targol Ghahermani (Applicant) for the Commission to deal with a general protections dispute involving her alleged dismissal by T Dental Surgery Pty Ltd (Respondent).

• [2] The Respondent has raised a jurisdictional objection that the Applicant was not dismissed for the purposes of s.365 and within the meaning of s.386 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] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

• [5] A hearing was conducted on 17 June 2025 to determine the jurisdictional objection. The Applicant was represented by Ms M Trpenovska, from the Inner City Legal Centre and the Respondent was represented by Ms L Fan, a Director of the Respondent.

• [6] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassol[2], a Full Bench considered the circumstances in which an employee's employment is 'terminated on the employers initiative'. Amongst other matters, it found that it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

• [7] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

• [8] All the circumstances must be examined, including the conduct of both the employer and employee.[6] In other words, it must be shown that there is an act of the employer which results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

• [9] The Respondent operates a small dental practice in Sydney.

• [10] The Applicant says she commenced work on 28 January 2025 as a dental assistant. The Respondent claims she commenced on 11 February 2025. She worked on Wednesday each week. Given the only matter to be decided now is whether the Applicant was dismissed, the dispute about the date she commenced does not need to be determined.

• [11] The dispute about her start date related primarily to whether a '3 day training period' was paid work time. Likewise, matters related to her pay that were raised after her employment ended are not relevant matters in determining whether the Applicant was dismissed.

• [12] The Applicant gave evidence that on or around 5 March she misplaced materials and the dentist yelled at her as a result. Further, on or around 19 March 2025 the dentist requested that she provide a special metal holder, however the Applicant provided the wrong holder and said that the dentist yelled at her in front of a patient.

• [13] On the morning of 2 April 2025 the Applicant sent a text message to Ms Fan indicating that she was sick and unable to attend work. The text messages exchanged between the two include the following:

"Applicant: Good morning Linda. Last night I couldn't sleep at all and I had a fever so this morning I just took a Covid test and it came out positive. I didn't know earlier as I had no symptoms. I am really sick right now and it would be a risk if I come in for work. Last time I was sick with Covid my blood pressure dropped suddenly and I ended up passing out and having to go to the hospital.

Ms Fan: Too late, you can have rest between the patients.

Ms Fan: If you really go to hospital, which hospital? I need to talk to Dr, and look after you. Tell me which hospital? I come to see you.

Applicant: I'm not going to the hospital when I haven't passed out

Ms Fan: Please note it's against law that if you don't provide medical certificate. You didn't pass out. Why you can't work? We all feel uncomfortable sometimes.

Applicant: I'll go to the doctor and get a medical certificate today

Ms Fan: Give me Dr name and phone number, I need to talk to him/her now

Applicant: I haven't made an appointment yet, once I go see them I will give you their contacts

Ms Fan: Since you can go out to see Dr, you can come to surgery to visit me. Or I come to your home to see you and your parents today any time

Applicant: I have booked a phone consult for 11 am. The soonest available time

Applicant: But I am sick, I don't understand why I should work when I could risk spreading disease to patients

Ms Fan: Since you don't need to see Dr in person, I am assuming you are ok to travel to surgery and let me see you

Applicant: No I can not because I am sick and I have no car right now.

If I would have known sooner I would have definitely told you

Ms Fan: It's your shift to work today, clinic must have DA, I can't find replacement last minute. Neglect of duty is against law.

Applicant: I am not neglecting my duty when I am unfit for work

Ms Fan: If you are really sick, come to see me, Dr tee is Dr, we can look after you. I don't understand what is your reason not Dr tee to see you. Phone conversation doctor's MC is not acceptable.

Applicant: Dr is a dentist, I need a GP. Look I am actually sick and I will get the relevant documentations that I need. I can not come to work today and I can not come to see you. I can not keep going back and forth like this. My head hurts and I am all alone right now.

Phone conversation MC is not acceptable. It's against law to take leave without valid MC, and I will take action too if clinic patents are impacted too

Applicant: All I can do right now is get a medical certificate.

Ms Fan: No matter what, your age is daughter's age, why I never take leave? I don't think I am healthier than you. I suggest you come and take rest between the Patients, I do the cleaning between patients, at least let patients see the DA sitting beside them. You wear mask all the time. How can you spread disease to patients. Dr Tee can prescribe medication for you as well. I don't think phone conversations Dr knows better than Dr Tee.

Applicant: If I come then I need to be able to still have my phone consultation with my doctor at 11. It won't take long

Ms Fan: I have so many staffs for so many years. I know what young girls are thinking. Alright. You can have phone conversation at 11am with Dr for as long as you can.

Applicant: [screen shot of Uber app and cost for trip]

Ms Fan: No, today is your shift, I pay you half of uber is because this kind of thing happens first time.

Applicant: If that is the case then I am not coming, because it is illegal to make me come in the first place.

Ms Fan: You are supposed to take care of travel cost.

Applicant: Why should I have to come to work if I know I am very sick?

Ms Fan: In this case, I need to talk to your university dean and solicitor.

Applicant: That does not make any sense. You still haven't paid me for my past shifts.

Ms Fan: You are sick or not sick, you need to prove it, lets clarify with your uni dean or in court.

Applicant: I will take matters to court if I have to. I will be getting a medical certificate.

Ms Fan: Go ahead, I talk to your uni dean and take you to court.

Applicant: Linda I am coming to work out of my own good will even though I am still sick, I think it is inappropriate that you are saying this to an 18 year old girl.

Ms Fan: Phone conversation MC is not valid, if you want to make things ugly, go ahead. I talk to your Dean first what kind of student they educate

Applicant: Yes it is valid. By law a consultation is a consultation whether it is in person or on the phone.

Applicant: You can do that, but I am not doing anything wrong.

Ms Fan: I had so many staffs, I know why you are not coming today, its laziness. You know it too. We all feel lazy sometimes, don't want to work. Lets fight in court.

If this carries on I am not coming to work, and will be taking leave to rest and get better at home.

Ms Fan: I am not begging you to work, I can survive without anyone, it's my sign to show you that I am nice to you to pay your half of Uber cost. You are too much. I take legal action against you for neglecting of duty, causing damage to clinic.

Applicant: I am not coming to work today. That is final

Ms Fan: I will call your uni Dean to make appointment to see him too today, what kind of uni student they educate?

Applicant: They educate people who can stand up for themselves.

Ms Fan: Don't threat me, I am nice to you, doesn't mean you can be rude and blackmail me. Laziness, neglect of duty is standing up for themselves? Pay me $1000 training and material cost fees.

Applicant: I have been very professional this who time and you have not been nice to me at all. You have threatened me multiple times throughout this whole conversation knowing that I am sick.

Ms Fan: Wait for solicitor letter. No matter what price to pay, I take legal action against those who cause damage to our surgery.

• [14] Later that same day, the Applicant provided Ms Fan with a medical certificate which stated that the Applicant would be unfit for work from 2 April 2025 to 3 April 2025. Further text messages were then exchanged as follows:

Ms Fan: I will see you in your Dean's office. Please note I will call police immediately if you or anyone come to our surgery to screaming at reception. What makes you think I should pay your Uber cost? What makes you so arrogant? Its because I'm always so nice to you, so you think you can bully me easily? You can threaten me blackmail me?

Applicant: I am sorry to have caused you distress today, but I am not bullying you. I never wanted to get sick, why would I want that? If I wasn't I would have come today like any other day.

Ms Fan: I manage so many staffs for so many years, don't you know why I want to see you today? Do you really think our surgery must be closed without DA? I am testing you if you are lying! Obviously you failed test. All other girls passed test. If someone says she is sick, if she allows me to visit her anytime, or show herself at surgery for a couple of hours, I am sure she's really sick. If she can prove to me twice, the third time even she doesn't provide MC, I still trust her.

You think I owe you just because you get a piece of paper online after I told you that you must have MC?

You even don't bother to see the doctor in person given you are so sick?

Applicant: I actually reschedule to see the doctor in person because you insisted. I have done everything that is required of me. You are free to go and call the dean of my university, their contact information is public. There is no reason to be so aggressive to someone, let alone someone who isn't feeling well.

• [15] The text exchange went on for a considerably longer time in the same vein, however is not repeated in full here.

• [16] On 4 April 2025 the Applicant sent an email to the Respondent in the following terms:

I am Targol Ghahremani and this is my formal letter of resignation from T Dental Surgery. My final day of employment is going to be 16/04/2025 on a Wednesday, 11 days from today's date. I would like to express my gratitude in having the opportunity to work at your clinic and I am thankful for the experience that I have been able to gain.

• [17] The Applicant gave evidence that she resigned because she was suffering from extreme anxiety and didn't know what to do. She said she was afraid to continue working with the Respondent and was concerned for her safety and wellbeing.

• [18] During the hearing, Ms Fan indicated that she had not seen the Applicant's resignation email at the time it was sent, and it was not until after 9 April that she became aware of it.

• [19] The Applicant also gave evidence that a colleague messaged her on 7 April 2025 to tell her she had been replaced by another employee for her shift on 9 April, so she decided to message Ms Fan to confirm whether she was required to attend work on 9 April. Ms Fan did not reply to her message and so the Applicant took that to mean Ms Fan did not want her to attend work anymore.

• [20] Ms Fan said that the Applicant was supposed to come to work on 9 April 2025 but did not attend. Ms Fan said the reason she thought the Applicant did not attend work was because the Respondent had not acceded to the request by the Applicant to pay for the Uber ride the week prior for her to get to work. Ms Fan said she considered this to be blackmail.

• [21] The Applicant contended that she did not leave the employment relationship voluntarily given the employment relationship had deteriorated and she did not feel safe to continue working for the Respondent. The conduct of the Respondent pointed to by the Applicant included the Applicant being threatened with litigation and accusing the Applicant of making unlawful threats including blackmail.

• [22] As noted earlier, to find that a termination of employment is at the employer's initiative, it is sufficient that the employer's conduct would, on any reasonable view, be likely to bring the employment relationship to an end. It must be shown that there is an act of the employer which results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

• [23] In this case, there is no dispute that the Applicant emailed her notice of resignation on 4 April 2025. A resignation is not required to be accepted by the Respondent to be effective. The question then is whether the conduct of the Respondent up to that date was sufficient to bring the employment relationship to an end. It is obvious that conduct after that date cannot have been a factor in the Applicant's decision to resign.

• [24] Having considered the evidence, I am not satisfied that the Respondent's conduct was sufficient to bring the employment relationship to an end.

• [25] The is no doubt that Ms Fan's behaviour in terms of the text exchange set out above was inappropriate and confronting for the Applicant. For Ms Fan to insist someone comes to work when they are unwell, so she can care for them at work, is unusual to say the least. The threat of legal action and talking with the Dean of her university was clearly inappropriate, as was the large number of text messages. In saying that, there is nothing unusual about employers and employees threatening each other with litigation. Such a threat, in and of itself, does not bring an employment relationship to an end.

• [26] It was clear that Ms Fan considered she was being "threatened and blackmailed" in relation to the payment of the Uber cost and she reacted very badly to that. It was obvious in the hearing that this was a significant trigger for Ms Fan.

• [27] The Applicant's resignation email did not suggest that the reason for the resignation was a result of conduct by the Respondent. On the contrary, the Applicant thanked the Respondent for the opportunity to work in the clinic.

• [28] The letter of demand sent by the Applicant on 9 April and the text messages that followed between the Applicant and Ms Fan are not relevant to the question for determination as it is all conduct that occurred after the Applicant had sent her resignation on 4 April.

• [29] Ultimately, the onus is on the Applicant to demonstrate she was dismissed. She needs to show that there was an act of the Respondent which resulted directly or consequently in the termination of her employment and the employment relationship was not left voluntarily by her. She needs to show that she was forced to resign. While the conduct of Ms Fan in terms of the text exchange on 2 April was clearly inappropriate, I am not satisfied that it reaches the level of being conduct that left the Applicant with no choice but to resign.

• [30] Disagreements and conflict are common in workplaces. Communication between people is not always perfect. In fact, it is more often than not far from perfect. People may be uncomfortable with conflict and it may cause a level of stress, but that does not mean a decision to resign to avoid an uncomfortable or stressful situation becomes a dismissal. To be forced to resign requires far more than discomfort. It requires a person to have no other real or effective choice but to resign.

• [31] The Applicant has not demonstrated that she was forced to resign because of conduct of the Respondent and so I cannot be satisfied in this case that she was dismissed.

• [32] As a result, the jurisdictional objection made by the Respondent is upheld and the application is dismissed.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care [2021] FWC 650at [77].

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