Fair Work Act 2009

s.394 - Unfair dismissal

[1] Ms Thi Nho Tran has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (application). Ms Tran submitted that she had been constructively dismissed by Dental Corporation part of BUPA T/A City Smiles Cosmetic & General Dental Clinic on 22 August 2017.

[2] In the Form F3 - Employer Response to Unfair Dismissal Application (Form F3), the jurisdictional objection that there was no dismissal was raised. The Respondent to the application claims Ms Tran voluntarily resigned her employment, effective 22 August 2017.

[3] While Ms Tran named 'Dental Corporation part of BUPA T/A City Smiles Cosmetic & General Dental Clinic' with the Australian Business Number (ABN) of 92 124 730 874 as the Respondent in her Form F2 - Unfair Dismissal Application, the Form F3 records the Respondent as 'Dental Corporation Pty Ltd T/A Dental Corporation' with the ABN of 92 124 730 874.

[4] However at the hearing, Ms Alexandra Malon, Senior Corporate Counsel (Bupa Villages and Aged Care ANZ, Employment and Litigation), advised that as a result of a name change, the correct name of the Respondent is Bupa Dental Corporation Pty Ltd. I have therefore amended the application to record Bupa Dental Corporation Pty Ltd as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act.[1]

[5] At the hearing, Ms Tran made submissions and gave evidence. Ms Malon represented Bupa Dental Corporation Pty Ltd (Bupa Dental) and Ms Milla Dukhno, Practice Manager, and Ms Sigrid Wendt, Receptionist, gave evidence for Bupa Dental.

[6] Section 396 of the Act requires me to decide four matters before I consider the merits of the application.

[7] There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[8] Firstly, the application was made within the 21 day period required by s.394(2) of the Act (s.396(a) of the Act).

[9] Secondly, Ms Tran is a person protected from unfair dismissal, as she had completed the minimum employment period and earned less than the high income threshold (s.396(b) of the Act).

[10] Thirdly, as Bupa Dental has not contended the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), this matter does not require my consideration.

[11] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy (s.396(d) of the Act).

[12] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388

Section 385(c) - Small Business Fair Dismissal Code

[13] As outlined in paragraph [10] above, s.385(c) of the Act does not apply.

[14] As outlined in paragraph [11] above, s.385(d) of the Act does not apply.

[15] The matters I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable within the meaning of s.385(b) of the Act, are set out in s.387 of the Act. It will only be necessary for me to consider these matters if I am satisfied Ms Tran was dismissed within the meaning of s.386(1) of the Act. Accordingly, this is the first question I will determine.

[16] A person has been unfairly dismissed if the termination of their employment comes within the definition of "dismissed" for the purposes of Part 3-2 of the Act. Section 386(1) of the Act provides:

(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."

[17] The provisions of s.386(2) and s.386(3) of the Act do not apply in this matter.

[18] If Ms Tran was not dismissed by Bupa Dental within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her to pursue her unfair dismissal application. That is to say, if Ms Tran's employment was not terminated at the initiative of Bupa Dental (s.386(1)(a) of the Act), or if it is not found that she was forced to resign because of conduct or a course of conduct engaged in by Bupa Dental (s.386(1)(b) of the Act), there is no jurisdictional basis for her to pursue the application.

[19] Ms Tran began working for Bupa Dental on 1 August 2016. She was employed as a Receptionist on a full-time basis. Ms Tran had seven years' prior experience working as a Dental Assistant before joining Bupa Dental.

[20] In her Statement of evidence,[2] Ms Tran said she was forced under duress to resign, having become unwell due to the actions of Ms Dukhno, Bupa Dental's Practice Manager, whom she said made her feel incompetent. Ms Tran asserted the dismissal was a constructive dismissal.

[21] Ms Tran raised a series of matters.

[22] She said she was accused by Ms Dukhno, at a morning staff meeting at the end of April 2017, of submitting a leave request without seeking her permission first. Ms Tran said that although she told Ms Dukhno that she had not logged into the HR system to apply for leave, Ms Dukhno kept insisting that she had. Ms Tran said she felt uncomfortable and embarrassed by this exchange.

[23] Ms Tran said she told Ms Sigrid Wendt, her fellow receptionist, and Dr Tom Valmadre, a dentist at the practice, that she was targeted for dismissal from approximately March/April 2017.

[24] On 23 June 2017, Ms Tran said she was given a one page document of patients to manage. She said one week later, Ms Dukhno asked a colleague for page two, as she wanted to know why Ms Tran had not contacted those patients. Ms Tran said she told Ms Dukhno later that morning that she had only been given a one page document but, believing she had once again failed in a task she had been assigned, tried to locate the second page. Ms Tran said it was later confirmed that page two had been given to another member of staff. Ms Tran said Ms Dukhno later commented aloud in reception that she never seemed to complete tasks assigned to her on time.

[25] Ms Tran said having been asked by Ms Dukhno whether she would be okay to provide nursing services and, having done so for approximately one week, she was called to a meeting on 28 June 2017. Ms Tran said she was told she was not meeting expectations in reception because she was making too many mistakes and that she was not performing clinical duties adequately because she failed to demonstrate basic infection control and did not know instrument names. She said it was put to her that for someone with seven years' experience, she did not seem to know what she was doing. Ms Tran said she had not been given any formal warnings prior to this meeting.[3] She said the meeting concluded with Ms Dukhno saying she would try and find a less busy clinic under the Bupa Dental 'umbrella' for Ms Tran to transfer to, unless Ms Tran found more suitable employment elsewhere. Ms Tran said she felt this assessment was unfair given she had only been in the clinic for about a week.

[26] Ms Tran said after this meeting with Ms Dukhno, she had a discussion about it with with Dr Valmadre and Ms Wendt and they were shocked and surprised at the comments that had been directed towards her.

[27] Ms Tran said on 3 July 2017, Ms Dukhno approached her and asked whether she had found a job, to which she replied "no". Ms Tran said she was told by Ms Dukhno "then it's best if I [sic] resigned", to which her response was "no, I'm not going to do that because I haven't got a job to go to."

[28] On 4 July 2017, Ms Tran said that Ms Dukhno told her she was "sorry if she had not handled the situation properly" and "I know you think I hire and fire whoever I please, but I can tell you that the decision did not come without support from Dr Vadim Rogelberg our Principal Dentist." Ms Tran said that Ms Dukhno told her that she was not meeting expectations and feedback regarding her had not been positive. Ms Tran expressed that she did not think it was fair to assess her because she had only been nursing for a few days, with new equipment and room orientations. Ms Tran said she asked Ms Dukhno for written details regarding the areas she was lacking in so she could improve for future employment. She said Ms Dukhno told her she would obtain some details from the dentists at a meeting she was to have with them that evening. Despite this, and a note received from Ms Dukhno the following day which indicated Ms Dukhno had obtained notes from the dentists on the areas requiring improvement, Ms Tran said the details she had requested were never given to her.

[29] On 20 July 2017, Ms Tran said she accidently handed Ms Dukhno a doctor's referral letter which contained sensitive health information. When Ms Tran realised, she went to Ms Dukhno's office to retrieve the letter and found that it had been opened and placed among paperwork. Ms Tran said she later sent a text message to Ms Dukhno asking that she keep the content of the letter confidential and received the reply "it's ok. No problem."

[30] On 27 July 2017, Ms Tran said she overslept, as she had taken some sleeping tablets, and did not attend for work. She said she made contact with Ms Dukhno the following morning and apologised. Ms Tran said she was then advised to take the day off and return to work on the following Monday.

[31] Ms Tran also alleged Ms Dukhno told her she wanted to cut back her hours, since the clinic was not very busy. Ms Tran said she felt uncomfortable with this as she was employed full-time and needed the income.

[32] Ms Tran said on Monday 31 July 2017, she told Ms Dukhno that she was not coping very well, to which Ms Dukhno said she was happy for Ms Tran to take leave for the remainder of that week to recover. Ms Tran said despite receiving a second written warning that day, she was thankful for the break.

[33] On 8 August 2017, Ms Tran said she took an unscheduled day off to attend a job interview. She said she thought it would not be an issue as she was rostered as "spare" for that day, meaning she was not assigned to any particular tasks. Ms Tran advised Ms Wendt she would not be coming in. She said she thought that by doing so, she had accorded with the requirement outlined in a written warning she had received that she notify a colleague if she was unable to attend work due to illness or if she was running late.

[34] Ms Tran said on 9 August 2017 she was advised by a colleague that the clinic had been severely understaffed the previous day. Ms Tran said the Head of Clinical, Ms Olga Porov, raised her voice at her and told her off for being absent the previous day. Ms Tran said she felt humiliated because other members of staff and patients witnessed this exchange.

[35] Ms Tran said in a later meeting with Ms Dukhno, she was advised that taking days off needed to be approved by Ms Dukhno and that the clinic had tried to contact her the previous day without success. Ms Tran said she was asked about her well-being and was advised about the free counselling service available to employees.

[36] Ms Tran said the incident which ultimately caused her to resign her employment occurred on Thursday 17 August 2017. She said was nursing in the morning and towards lunchtime she was made aware that she needed to set up for Dr Mark Farag's first patient after lunch. Ms Tran said that Ms Olga Fedorov, a senior nurse, had earlier that morning been coming into the room while other patients were being attended to, bringing in the necessary instruments for the afternoon surgical procedure. Ms Tran said Ms Fedorov was one of two or three nurses who typically assisted with complex procedures and she asked her whether she would be doing so that afternoon, but Ms Fedorov did not answer.

[37] Ms Tran said she tried to complete setting up the room, but then had to take a lunch break, so another nurse took over from her. Following Dr Farag and Ms Fedorov treating the patient, Ms Tran said she was asked to look after the sterilising room. She said she was unfamiliar with the specialised tools that had been used and so asked another senior nurse, Mr Non Zhao to verify whether any tool was missing. Ms Tran said when she was told a Micro Chisel was missing she checked the rubbish, which she had just taken out, but could not locate it. She said Ms Porov asked her whether she had found it and told her she must try to find it, while Ms Fedorov told her she was not leaving until the tool was found.

[38] Ms Tran said Dr Farag then came to the sterilising room and pointed to the Micro Chisel on a tray that was used for clean instruments while they are drying. Ms Tran said she was confused, relieved and then became angry and upset because neither she, Mr Zhao or Ms Porov saw the Micro Chisel on a tray the size of A4 paper. Ms Tran said she also felt foolish and angry that she was made to look incompetent in front of Dr Farag. Ms Tran said she decided to quit her job that afternoon.

[39] Ms Tran said that she had tried to reach out to Bupa Dental's HR/People Support Team through her Workday account at one point, only to find her access had been blocked. She said she was told by Ms Dukhno that this was a coincidence and that when she was provided with a new account set-up on 6 July 2017,[4] it did not relate to her previous account. This lack of access appears to have been rectified quickly and it would seem Ms Tran was only without access between approximately 4 July 2017 and 6 July 2017.[5]

[40] In broad terms, Ms Tran submits:

• She was very unwell and her illness primarily was due to the actions of Ms Dukhno;

• She was made to feel incompetent on a daily basis;

• Her self-esteem was destroyed by constant bullying;

• She was being watched and reported against every day;

• She was reprimanded in front of her peers and patients;

• She developed severe anxiety, mixed with dread and fear; and

• She became very ill, developing mental issues which lead to thoughts of self-harm, leaving her with no choice but to resign.[6]

[41] At the hearing, Ms Tran submitted:

• She was singled out;

• Her performance was not deficient;

• She was not supported or given the chance to improve;

• She was not given the written evaluation she had requested;

• Her lateness came after being 'targetted' in her conversation with Ms Dukhno on 28 June 2017; and

• She started looking for other work after the conversation in which she says Ms Dukhno had told her she would find somewhere to transfer her to or she could find another job.

[42] Bupa Dental said Ms Tran tendered her resignation via text message on Monday 21 August 2017 at 9.46am and confirmed this in a letter dated 22 August 2017, that she emailed Ms Dukhno on 23 August 2017.[7]

[43] The text message stated:

"I will be sending you my resignation letter via email. I will drop off my keys and uniform this afternoon. As it is. I am unfit to continue work with City Smiles. Thank you for understanding."

[44] The resignation letter dated 22 August 2017 stated:

"I am writing to inform you of my resignation from my role as a receptionist and dental assistant effective immediately. My last day of work will be 22/08/2017. Although my time with City Smiles Dental had been productive and educational for me initially, the last few months have become less and less welcoming and hostile. It has made me doubt my skills, abilities to carry out my role thus resulting [in] me feeling incapacitated to continue.

Despite my own efforts to try and improve by seeking help from various sources both in-house and other professionals, the actions of a few members of staff have not only been discouraging but could also be frowned upon.

As you are well aware of my situations, I apologize for such short notice of termination but given the stress of my current work environment, I feel it is best for me to seek employment elsewhere.

I once again thank you for [your] perusal over this matter.

[45] Ms Dukhno gave evidence that as Practice Manager, Ms Tran reported directly to her. Ms Dukhno said Ms Tran's duties as a receptionist included meeting and greeting patients, managing appointments, responding to patient enquiries, processing health insurance claims, discussing treatment and cost plans with patients and other administrative tasks. Ms Dukhno said Ms Tran was provided with an induction when she commenced at Bupa Dental, which included induction for reception duties. Ms Dukhno said when Ms Tran interviewed for the role, she was told she would also have the opportunity to perform clinical work. Ms Dukhno said Ms Tran had told her she had seven years' prior experience working as a Senior Dental Assistant and that she would be happy to work in that capacity, as well as working on reception.

[46] Ms Dukhno said in April 2017 she started noticing issues with Ms Tran's performance in her role as a receptionist, including; often coming to work late, booking appointments incorrectly, forgetting to call patients back, having poor time management and making mistakes when processing health insurance claims and payments. Ms Dukhno said she had an informal performance discussion with Ms Tran and outlined the concerns held. She said it was very important to promptly and effectively address these kinds of issues in a small practice and she told Ms Tran she was available for questions at any time if she was unsure about anything. Ms Dukhno also said she told Ms Tran and that she might like to review training materials which were kept at the practice.

[47] Ms Dukhno said over the following months, she provided regular feedback and support to Ms Tran during daily team catch-ups, however her performance did not improve.

[48] Ms Dukhno said in June 2017, another performance discussion was held with Ms Tran. It was in this discussion they agreed for Ms Tran to temporarily move off reception to 'cover' a Dental Assistant who was on annual leave. Ms Dukhno said the purpose of the change was to see if Ms Tran was more suited to a Dental Assistant role. She recalled Ms Tran saying she missed performing 'chair side work' and she was happy to try the Dental Assistant role.

[49] Ms Dukhno said Ms Tran was initially allocated to work with a dentist who performed simple procedures because it had been some time since she had worked as a Dental Assistant and she wanted to ensure she felt supported. Ms Dukhno said Ms Tran was then allocated work with other dentists.[8] Ms Dukhno said while the dentists and other clinical staff spent time explaining procedures to Ms Tran, they also made complaints about Ms Tran's performance, including; failure to follow infection control measures, inability to recognise commonly used dental instruments and prepare basic dental materials, difficulty with charting conditions in patient files, refusal to perform allocated tasks and mixing up local anaesthetics. Ms Dukhno said she was surprised to receive this feedback given what Ms Tran had told her about her seven years' prior experience working as a Senior Dental Assistant.

[50] Ms Dukhno said she had an informal discussion with Ms Tran regarding her performance as a Dental Assistant. She denied this occurred after approximately one week and after Ms Tran having worked for only one dentist. Ms Dukhno maintained she conducted the discussion with Ms Tran approximately two weeks after she had commenced in the role,[9] after Ms Tran had worked with three dentists.[10]

[51] Ms Dukhno disagreed with Ms Tran's recollection of that particular discussion. She said that while she did say to Ms Tran she had received some negative feedback, much of the discussion focused on her providing Ms Tran with support, such as offering to have regular one-on-one meetings to run through any areas of concern and rostering her with different dentists so she could experience different procedures. Ms Dukhno said at no stage in that conversation, or in any other conversation, did she tell Ms Tran she was being placed on a formal performance management plan or that her employment was at risk. Rather, she said she advised Ms Tran they would keep moving forward together and that she would continue to receive her support.

[52] Ms Dukhno said she noticed Ms Tran's worsening punctuality in around June 2017, and on some occasions, Ms Tran was arriving up to one and a half hours late. She said Ms Tran often failed to telephone the practice to advise she would be running late. Ms Dukhno said she told Ms Tran it was really important for her to be on time and that she should let the practice know if she would be late or away.

[53] Ms Dukhno denied Ms Tran's allegation that she commented in the reception area that Ms Tran never seemed to complete tasks on time and said she conducted employee performance conversations in her office. Ms Dukhno did not recall accusing Ms Tran of requesting time off without permission, save that she did recall having a conversation with the whole team about the requirement to check with her before applying for leave so she could ensure the practice was adequately resourced.

[54] Of Ms Tran's assertion that Ms Dukhno undertook to provide her with written feedback from dentists in July 2017, Ms Dukhno said while she may have said she would seek additional feedback from the dentists, she did not promise Ms Tran she would provide any notes from the dentists and she does not recall ever leaving Ms Tran a note in the sterilising room.

[55] On 20 July 2017, Ms Dukhno said she issued Ms Tran with a written warning in relation to her punctuality[11] and at this, Ms Tran said "I understand." Ms Dukhno said Ms Tran was again late to work on 24 and 25 July 2017 and did not attend at all on 27 and 28 July 2017. She said she attempted to telephone Ms Tran several times on 27 July 2017 but was unable to make contact and received a text message on 28 July 2017, in which Ms Tran apologised for her absence.

[56] Ms Dukhno said Ms Tran returned to work on Monday 31 July 2017 and said she had been absent as she had taken sleeping medication. Ms Dukhno said her response was words to the effect "Thi, it's fine if you are sick. But you have to let us know if you are not coming in. We were really worried about you last week."

[57] However, Ms Dukhno does not recall Ms Tran saying, in relation to the absence on 27 July 2017, that she had an "accidental overdose of sleeping tablets" and nor does she recall Ms Tran advising her that she was suffering from a mental health condition or that a health condition was impacting her performance and attendance at work.

[58] Ms Dukhno confirmed she gave Ms Tran a letter on 31 July 2017 confirming the practice's notification requirements when she was unable to attend work.[12] Ms Dukhno said she also told Ms Tran that she could ask a friend to call in for her if she did not feel able to make the call herself.

[59] Ms Dukhno said on or around 8 August 2017, Ms Tran telephoned reception after her starting time and advised she would not be at work that day because she had an interview to attend. Ms Dukhno took issue with Ms Tran's assertion that she thought it would not be an issue as she was rostered as "spare" for that day and not assigned to any particular tasks. Ms Dukhno said being rostered as a 'spare' on 8 August 2017 only meant that Ms Tran was not allocated to work with a particular dentist, and did not mean she was not required or could choose whether or not to attend work. Ms Dukhno said a person working as 'spare' is typically very busy supporting other Dental Assistants and the reception team.

[60] The following day, on 9 August 2018, Ms Dukhno said she discussed the interview with Ms Tran and asked her why she had not given advance notice that she would not be at work. She said Ms Tran replied "I don't know."

[61] Ms Dukhno said she was then informed by Ms Tran that she had recently broken up with her partner. Ms Dukhno said she asked Ms Tran to let her know if she needed any time off, or if any other assistance could be provided. Ms Dukhno sent an email to Ms Tran on 9 August 2018, containing the details of the Bupa counselling program for employees.[13] Ms Dukhno denies issuing Ms Tran with a warning that day.[14]

[62] Ms Dukhno denied making any decision regarding Ms Tran's ongoing employment or saying to Ms Tran "I know you think I hire and fire whoever I please, but I can tell you that the decision did not come without support from Dr Vadim Rogelberg our Principal Dentist." She said any decision to move to another practice or to a different employer was completely up to Ms Tran. Ms Dukhno also denied telling Ms Tran, or any other employee, that she wanted to 'cut back' their hours of work.[15] She said if anything, she would have looked to increase hours of work due to the clinic being so busy.

[63] Ms Dukhno said between 10 and 20 August 2017, Ms Tran attended work as usual.

[64] On 21 August 2017, Ms Tran did not attend work at her scheduled time. Ms Dukhno said she received a text message from Ms Tran at 9.46am,[16] which said she would be emailing her letter of resignation and that she would drop her keys and uniform off that afternoon. Ms Dukhno then received the resignation letter from Ms Tran dated 22 August 2017 by email on 23 August 2017.[17]

[65] Ms Dukhno said she had a further text message exchange with Ms Tran on 25 August 2017 regarding a separation certificate. Ms Dukhno said the tone was friendly and Ms Tran ended this exchange saying "have a great weekend."[18]

[66] Ms Dukhno said Ms Tran first raised concerns regarding her working environment with her in the resignation letter. She said while she was aware of personal issues Ms Tran was facing, she was never advised of any concerns about work or that she was experiencing stress as a result of work-related matters. Ms Dukhno said Ms Tran had never appeared upset during her discussions with her regarding performance.

[67] Ms Dukhno said if Ms Tran had any concerns, she could have raised them directly with her, contacted someone from BDC's People Team or used Bupa's "Speak Up" service (a 24-hour confidential hotline that employees can use to raise a concern). She said she emailed BDC's People Team on 22 November 2017, to enquire whether Ms Tran had raised any complaints there during her employment. She was aware that there was no record of Ms Tran raising any complaints or concerns.

[68] Ms Dukhno said at no stage did she say to Ms Tran "I think it's best if you resigned." She said prior to receiving Ms Tran's text message on 21 August 2017, the only times she discussed resignation with Ms Tran were:

• Firstly, in response to Ms Tran's question about moving to another employer;

• Secondly, when she apologised for any misunderstanding and stated that any decision to leave Bupa Dental was completely up to Ms Tran.

[69] As to these two instances, which Ms Tran says occurred on 28 June 2017 and 4 July 2017 respectively, Ms Dukhno ultimately said she cannot recall the exact dates upon which they occurred but said she had a casual discussion with Ms Tran about how she was finding the Dental Assistant role, and the following exchange was had:

Ms Tran: "My last practice was much quieter, all we did was cleans and fillings."

Ms Dukhno: "Do you know that the option of relocation to a smaller practice is available with DC? Is it something you would be interested in?"

[70] Ms Dukhno said she mentioned relocation as she wanted Ms Tran to know she had the option to move to a smaller and quieter practice if that was her preference. Ms Dukhno said a few days following the above exchange, the following discussion occurred with Ms Tran:

Ms Dukhno: "Here are the details of Michael from recruitment if you are interested in applying for a different role at DC."

Ms Dukhno: "No, it would be a continuation of your employment if you move to another DC practice."

Ms Tran: "What if I want to go to a non-DC practice?"

Ms Dukhno: "In that case, it's better to resign."

[71] Ms Dukhno said in a subsequent conversation with Ms Tran, she said words to the effect, "Thi, I need to apologise to you if things were taken the wrong way the other day. I will understand if you want to look for another job, but I don't want you to feel like we want you to leave." Ms Dukhno said she also told Ms Tran that any decision to move to another practice or to a different employer was completely up to her.

[72] Ms Wendt gave evidence in the form of a witness statement and at the hearing. Her evidence at the hearing was vague. She did not recall or remember many things at all and I do not intend to give her evidence any weight.

[73] In terms of s.386(1)(a) of the Act, Bupa Dental submitted the extent to which Ms Tran relied on it was unclear but in any event, it seemed as though her application was pressed mainly in relation to s.386(1)(b) of the Act. Bupa Dental submitted that Ms Tran clearly indicated to it that she was resigning her employment and further, there was no suggestion that Bupa Dental told Ms Tran that it was terminating her employment, which had been confirmed by Ms Tran.[19]

[74] In terms of s.386(1)(b) of the Act, Bupa Dental submitted:

• Ms Tran was not subjected to bullying and harassment by Ms Dukhno or anyone else at the company.

• At all times its management of Ms Tran was reasonable and appropriate in the circumstances.

• Ms Tran was provided with feedback and the focus of Ms Dukhno was to support Ms Tran in moving forward and improving her performance.

• It was uncontroversial that Ms Tran had punctuality and attendance issues and that she had failed to follow the notification requirements of the practice;

• The allegations of Ms Tran having been shouted at, reprimanded in front of peers and singled out were not supported by evidence;

• Ms Dukhno's 'clear' evidence was that she never told Ms Tran to resign during the conversation in which resignation was mentioned and, in any case, apologised 'a couple of days' after that conversation and made it clear to Ms Tran that any decision on resignation was up to her;

• There had been an offer of a facilitated transfer which had been positively received by Ms Tran;

• The conversation in which resignation was mentioned had nothing to do with Ms Tran's decision to resign from her employment, with Ms Tran not resigning in the heat of the moment, as she waited another six weeks before doing so. Further, the conversation was not mentioned by Ms Tran in either the text message she sent on 21 August 2017 or her letter dated 22 August 2017;

• Any mental health issues Ms Tran had were not made known to Bupa Dental during her employment and her evidence was that her mental condition only really deteriorated after she had resigned; and

• Even if there were deficiencies in the performance management of Ms Tran, which it does not concede, there were real choices open to her other than resignation, including making a complaint to Ms Dukhno, the HR department, Bupa Dental's "Speak Up" hotline or an external body.

[75] Ultimately, Bupa Dental submitted the Commission cannot be satisfied objectively that it engaged in conduct with the intent of bringing the employment relationship to an end or that Ms Tran had no effective or real choice but to resign.

[76] As was outlined above, s.386(1) of the Act provides as follows:

(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."

Section 386(1)(a) - was Ms Tran's employment terminated on Bupa Dental's initiative?

[77] In Barkla v G4S Custodial Services Pty Ltd,[20] the Full Bench outlined a body of law it said articulates the nature of employer conduct which will bring an employment contract to an end:

"...In O'Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term "initiative" and the convention giving rise to the statutory provisions, the Full Court said:

"These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment': Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

'I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that "initiate" means "to begin, commence, enter upon; to introduce, set going, or initiate": see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression "termination" in the Act, read in conjunction with Art 3 of the Convention which speaks of "termination ... at the initiative of the employer", a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.'

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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because 'he felt he had no other option'. His Honour described those circumstances as:

'... a termination of employment at the instance [of] the employer rather than of the employee.'

'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'"

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

"However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous."

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

"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. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (References omitted)

[78] Thus, it can be seen that the conclusion of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[21] (O'Meara) is:

• there must be action by the employer that either intends to bring the relationship to an end or has that probable result;[22] and

• that in determining whether a termination was at the initiative of the employer, an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.[23] (my emphasis)

[79] At the hearing, I asked Ms Tran to confirm the basis upon which she contends she was dismissed:

"Ms Tran, in lodging this application you're saying you were dismissed and that it was unfair?---Yes.

I just want you to confirm for me what parts of section 386 there do you rely on? Is it (a) or (b)?---(b) more so.

The person's employment with his or her employer has been terminated on the employer's initiative.

I suppose after being told to - it's best if I resigned and I said no, several incidences and comments were made.

[80] What Ms Tran appears to have submitted therefore is that Ms Dukhno telling her it would be best if she resigned was conduct amounting to a dismissal. Putting to one side the fact that Ms Tran resigned seven weeks after the date she says Ms Dukhno told her it would be best if she did so, I am not persuaded by her submission for two reasons.

[81] Firstly, I am not persuaded that Ms Dukhno said to Ms Tran "then it's best if I [you] resign" in the context Ms Tran has attested to. As to context, there is some uncertainty from Ms Dukhno as to precisely when particular conversations took place but both parties agree that Ms Tran and Ms Dukhno discussed the option of Ms Tran transferring to another Bupa Dental practice and the option was discussed over the course of two separate discussions.

[82] Ms Tran says the first part of the discussion took place on 28 June 2017, in the same meeting during which issues relating to her performance as a Dental Assistant had been raised by Ms Dukhno. She said the outcome of the meeting was that Ms Dukhno was going to try and source a transfer, unless she found another job.

[83] Ms Dukhno said the first part of the conversation involved her raising the option of a transfer, then asking Ms Tran whether she was interested in that option and Ms Tran replying that she was.

[84] As to the second part of the conversation, which Ms Tran says took place on 3 July 2017:

• Ms Tran says Ms Dukhno asked her whether she had found another job and when she answered "no", Ms Dukhno said "then its best if I [you] resigned"; but

• Ms Dukhno said that having provided Ms Tran with the contact details for Bupa Dentals' recruitment personnel (which is not in dispute), resignation was then discussed in two contexts, with the first being that Ms Tran's resignation would not be required in the case of a transfer to another Bupa Dental practice and the second being in response to Ms Tran's question "What if I want to go to a non-DC practice", to which her reply was "[i]n that case it's better to resign".

[85] It is also agreed that this series of conversations was finalised with an apology from Ms Dukhno to Ms Tran, although the parties characterise the nature of the apology differently.

[86] Ms Tran said Ms Dukhno apologised for her handling of the situation on 4 July 2017 and intimating that the Bupa Dental decision that Ms Tran should resign was not hers (Ms Dukhno's) alone.

[87] Ms Dukhno said she said words to the effect, "Thi, I need to apologise to you if things were taken the wrong way the other day. I will understand if you want to look for another job, but I don't want you to feel like we want you to leave" and attempted to clarify that should Ms Tran wish to transfer or leave, it was entirely up to her.

[88] Having regard to these matters, it is evident there is agreement that:

• There were discussions regarding Ms Tran's performance as a Dental Assistant;

• Ms Tran and Ms Dukhno discussed the option of a transfer and details of Bupa Dental recruitment were provided;[25]

• The notion of resignation was discussed; and
• There was an apology from Ms Dukhno to Ms Tran.

[89] As outlined above, the parties characterise the way in which these matters were discussed differently. Ms Tran's version of events is that having been performing the duties of Dental Assistant for a week, Ms Dukhno had given up on her and wanted her to either transfer to another Bupa Dental practice or resign her employment altogether.

[90] I have considered this, but ultimately prefer Ms Dukhno's evidence over that given by Ms Tran for the following reasons:

a) Ms Tran's move into work as a Dental Assistant had been agreed, not forced;

b) While there had been some discussion about the feedback regarding Ms Tran from the dentists, Ms Dukhno did not commence a process of performance management and there were no documents issued to this effect;

c) I accept Ms Dukhno's evidence that her response to this feedback was to offer Ms Tran support. I observed nothing in Ms Dukhno that suggested she wanted to force Ms Tran out of the City Smiles Clinic;

d) There having been discussion about the option of transferring to a different, quieter practice, I accept Ms Dukhno's version of the discussion regarding resignation; and

e) I also accept Ms Dukhno's evidence regarding the apology. It is consistent with the thread of discussions between her and Ms Tran and what had transpired following Ms Tran's transition to the role of Dental Assistant and her management approach.

[91] In light of my factual findings, I am satisfied:

(a) none of these communications between Ms Tran and Bupa Dental constituted an express termination of her employment;

(b) there was no action on the part of Bupa Dental which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship between Ms Tran and Bupa Dental to an end; and

(c) Ms Tran's employment with Bupa Dental was not terminated on Bupa Dental's initiative.

[92] Secondly, Ms Tran gave evidence that she decided to resign her employment on the afternoon of 17 August 2017, as a result of having experienced difficulty in locating a piece of dental equipment called a Micro Chisel.[26]

[93] There is one final matter I have considered in relation to s.386(1)(a) of the Act. Having considered what is described as "a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee's initiative,"[27] the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[28] (Tavassoli) stated in relation to s.386(1)(a):

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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.

[94] I have therefore considered s.386(1)(a) in the manner articulated in Tavassoli. That is to say, judged objectively, did Ms Tran not intend to resign her employment?

[95] I do not find that Ms Tran did not intend to resign her employment. Her text message was sent at 9.46am on 21 August 2017 and stated:

"I will be sending you my resignation letter via email. I will drop off my keys and uniform this afternoon. As it is. I am unfit to continue work with City Smiles. Thank you for understanding."

[96] The resignation letter dated 22 August 2017 was emailed two days later, on 23 August 2017, and stated:

"I am writing to inform you of my resignation from my role as a receptionist and dental assistant effective immediately. My last day of work will be 22/08/2017. Although my time with City Smiles Dental had been productive and educational for me initially, the last few months have become less and less welcoming and hostile. It has made me doubt my skills, abilities to carry out my role thus resulting [in] me feeling incapacitated to continue.

Despite my own efforts to try and improve by seeking help from various sources both in-house and other professionals, the actions of a few members of staff have not only been discouraging but could also be frowned upon.

As you are well aware of my situations, I apologize for such short notice of termination but given the stress of my current work environment, I feel it is best for me to seek employment elsewhere.

I once again thank you for [your] perusal over this matter.

[97] I do not consider these messages were sent in the "heat of the moment" or when Ms Tran "was in a state of emotional stress or mental confusion" such that she "could not reasonably be understood to be conveying a real intention to resign." I have also had regard to the following evidence in reaching this conclusion:

• Ms Tran said she decided to quit her job following an incident on Thursday 17 August 2017, when she had difficulty locating a Micro Chisel;

• Over three days then passed before she sent her text message to Ms Dukhno; and

• It was a further two days after that before Ms Tran sent her resignation letter by email to Ms Dukhno.

[98] Further, Ms Tran had given no prior indication to Ms Dukhno that she had been unwell or specifically, that she had mental health issues and her evidence was that the discussions with Ms Dukhno during which the topic of resignation was raised, took place seven weeks' prior.

Section 386(1)(b)- was Ms Tran forced to resign from her employment because of conduct, or a course of conduct, engaged in by Bupa Dental?

[99] The Full Bench in Tavassoli stated in relation to s.386(1)(b):

"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...the requisite employer conduct is the essential element."[29] (my emphasis)

[100] I have adopted this approach in my consideration of the actions and conduct of Bupa Dental, asking:

• Did Bupa Dental engage in conduct intended to bring the employment to an end?

• Was the termination of Ms Tran's employment the probable result of Bupa Dental's conduct such that she had no effective or real choice but to resign?

[101] It was not unreasonable for Bupa Dental to raise its concerns regarding Ms Tran's punctuality. The City Smiles practice of Bupa Dental at which Ms Tran worked was a dental practice comprising five dentists plus support staff. The Dentists and patients were entitled to expect that their appointments would commence at the appointed time. Bupa Dental did no more than outline its concerns in the letter dated 20 July 2017[30] and warn Ms Tran that her punctuality was not meeting the standards of the practice. When Ms Tran was either late or did not attend at all on three occasions in the seven days immediately after this first letter, it was not unreasonable for Bupa Dental to raise this with Ms Tran and clearly outline its requirements, advising that further non-compliance would lead to disciplinary actions.[31]

[102] I do not consider that Bupa Dental intended to bring the relationship to an end by managing the issues it had with Ms Tran's punctuality in this way or that its actions were such that Ms Tran's resignation was the probable result. Termination of her employment was not raised. Ms Tran was provided with contact details of Bupa Dental Staff and advised she had the option of phoning, emailing or sending an SMS text message in the event she was unwell or running late.

[103] These actions were taken by Bupa Dental to improve Ms Tran's approach to punctuality and absences from work, not bring the employment to an end.

[104] I also do not consider it was unreasonable for Ms Dukhno to provide Ms Tran with feedback in relation to her general performance and I am satisfied the feedback Ms Dukhno gave was intended to coach and support Ms Tran rather than bring the employment to an end. I also do not consider Ms Tran's resignation was the probable result of this feedback. The impression I formed of Ms Dukhno was that she is a conscientious practice manager who tries to support Bupa Dental Staff, while seeking to ensure the practice operates in an organised manner, thereby serving the needs of its patients.

[105] I do not consider that Ms Tran's transition from reception to clinical duties was a manifestation of any intention on the part of Bupa Dental to bring the employment to an end or that Ms Tran's resignation was the probable result of this change of duties.

[106] The change occurred by agreement and in circumstances where Ms Tran had seven years' previous experience as a Dental Assistant. I am satisfied Ms Tran was firstly allocated work with a dentist performing simple procedures and then rotated according to a practice adopted for all Dental Assistants.

[107] I have noted Ms Tran's evidence that she began writing a letter on 6 July 2017,[32] outlining her views following discussion with Ms Dukhno on 4 July 2017. She says she did not send it because "as [the] workplace environment worsened, I thought my email would only intensify the bullying."[33] This letter is an incomplete document and apart from not having been sent, the matters referred to in it do not appear to have been raised with Ms Dukhno during the remainder of Ms Tran's employment.

[108] In any event, I accept and prefer Ms Dukhno's evidence that she raised issues of performance with Ms Tran after having received feedback from a number of dentists in the practice. While I do not consider that Ms Dukhno was setting Ms Tran up to fail or that she wanted her to resign, I accept she was required, as Practice Manager, to convey the feedback to Ms Tran. Ultimately, I am satisfied Ms Dukhno's response was to focus on coaching and support. That there was no documented performance management arising out of these discussions supports this conclusion.

[109] I have outlined the evidence in relation to the discussions regarding transfer and resignation in paragraphs [81]-[88] above and have preferred Ms Dukhno's evidence regarding them over Ms Tran's.

[110] Ms Dukhno was prepared to assist Ms Tran's investigation of transfer opportunities within Bupa Dental only after Ms Tran indicated a level of interest. She raised the requirement of resignation only when Ms Tran asked about moving to a non-Bupa Dental practice and wanted to ensure her intentions (and those of Bupa Dental) were not misinterpreted by Ms Tran. Ms Dukhno's subsequent apology makes clear Bupa Dental did not intend to bring the employment to an end. Further, in light of the apology, I am not persuaded the termination of Ms Tran's employment was the probable result of Bupa Dental's conduct such that she had no effective or real choice but to resign.

[111] In so finding, I have also had regard to the fact that Ms Tran resigned seven weeks after the date she says Ms Dukhno told her it would be best if she did so.

[112] Bupa Dental responded to some issues relating to Ms Tran's attendance on 31 July 2017 and 9 August 2017, but termination was not raised in the context of these. The responses of Ms Dukhno included suggesting that Ms Tran take some time off and providing contact details for an EAP counselling service in response to her enquiries about Ms Tran's well-being and Ms Tran's disclosure that the relationship with her partner had ended.

[113] As to other matters raised by Ms Tran, I am not persuaded that Ms Dukhno raised the prospect of her hours of work being reduced and if, as she stated, she decided to resign her employment on the afternoon of 17 August 2017 as a result of having experienced difficulty in locating a piece of dental equipment called a Micro Chisel,[34] I am not persuaded this could be said to have been as a result of conduct of Bupa Dental.

[114] In light of my factual findings, I am satisfied Bupa Dental did not engage in conduct intended to bring the employment to an end and nor was the termination of Ms Tran's employment the probable result of Bupa Dental's conduct such that Ms Tran had no effective or real choice but to resign.

[115] I am not satisfied Ms Tran's employment was terminated on the initiative of Bupa Dental and nor am I satisfied that Ms Tran was forced to resign because of conduct, or a course of conduct, engaged in by Bupa Dental. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act applies to Ms Tran.

[116] As I have found that Ms Tran was not dismissed from her employment with Bupa Dental within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her to pursue her unfair dismissal application as the requirement in s.385(a) of the Act is not satisfied. It is therefore not necessary for me to otherwise deal with the merits of the application she has sought to pursue.

[117] Ms Tran's unfair dismissal application is dismissed and an order to this effect will be issued along with this decision.

[1] Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

[14] No record of a warning issued that day was produced by Ms Tran.

[20] [2011] FWAFB 3769 at [24].

[27] [2017] FWCFB 3941 at [35]

[28] [2017] FWCFB 3941.

[29] [2017] FWCFB 3941 at [47](2).

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