1
Fair Work Act 2009
s.394—Unfair dismissal
Thi Nho Tran
v
Bupa Dental Corporation Pty Ltd
(U2017/9878)
DEPUTY PRESIDENT CLANCY MELBOURNE, 4 JUNE 2018
Application for an unfair dismissal remedy.
[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.
Preliminary procedural issue
[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.
1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].
[2018] FWC 3237
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 3237
2
Initial matters to be considered
[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).
Section 385 – was Ms Tran’s dismissal unfair?
[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:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(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.
Section 385(d) – Genuine redundancy
[14] As outlined in paragraph [11] above, s.385(d) of the Act does not apply.
[2018] FWC 3237
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Section 385(b) – Harsh, unjust or unreasonable
[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.
Section 385(a) – was Ms Tran dismissed?
[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:
“386 Meaning of dismissed
(1) 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.”
[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.
Submissions and Evidence of Ms Tran
[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.
2 Exhibit A7.
[2018] FWC 3237
4
[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
3 Exhibit A8 at 5d.
[2018] FWC 3237
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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.
[2018] FWC 3237
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[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;
4 See Exhibit A1.
5 Transcript PN 338-346.
6 Exhibit A7.
[2018] FWC 3237
7
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.
Submissions and Evidence of Bupa Dental
[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.
Sincerely yours
Thi Tran”
Ms Milla Dukhno
7 Exhibit R1 at [36].
[2018] FWC 3237
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[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
8 Transcript PN 752.
[2018] FWC 3237
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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 punctuality11 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
9 Transcript PN 688 and PN 776.
10 Transcript PN 752.
11 Exhibit R1 – Attachment MD-3.
[2018] FWC 3237
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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
12 Exhibit R1 – Attachment MD-4.
13 Exhibit R1 – Attachment MD-5.
14 No record of a warning issued that day was produced by Ms Tran.
15 Exhibit R2 at [16].
16 Exhibit R1 – Attachment MD-6.
17 Exhibit R1 – Attachment MD-7.
[2018] FWC 3237
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[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?”
Ms Tran: “Yes.”
[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 Tran: “Does that mean I need to resign?”
Ms Dukhno: “No, it would be a continuation of your employment if you move to
another DC practice.”
18 Exhibit R1 – Attachment MD-8.
[2018] FWC 3237
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Ms Tran: “What if I want to go to a non-DC practice?”
Ms Dukhno: “In that case, it’s better to resign.”
Ms Tran: “I’m not resigning.”
Ms Dukhno: “That’s fine Thi.”
[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.
Ms Sigrid Wendt
[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.
Submissions
[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;
19 Transcript PN 651.
[2018] FWC 3237
13
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.
Consideration
[76] As was outlined above, s.386(1) of the Act provides as follows:
“386 Meaning of dismissed
(1) 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.”
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:
20 [2011] FWAFB 3769 at [24].
[2018] FWC 3237
14
“…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:
“Termination at the initiative of the employer
[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) 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,
[2018] FWC 3237
15
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.’
And at p 5:
‘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
[2018] FWC 3237
16
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
[2018] FWC 3237
17
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 Ltd21 (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.
21 PR 973462.
22 Ibid at [23].
23 Ibid.
[2018] FWC 3237
18
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.
(b)?---Also (a), I suppose.
How do you say it was (a)?---It says:
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.
Yes?---More so (b) than - - -
More so (b)?---Yes.”24
[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
24 Transcript PN 352-359.
[2018] FWC 3237
19
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.
25 Transcript PN 772 and PN 776.
[2018] FWC 3237
20
[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
Tavassoli28 (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.
(2)...”
[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?
26 Exhibit A7.
27 [2017] FWCFB 3941 at [35]
28 [2017] FWCFB 3941.
[2018] FWC 3237
21
[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.
Sincerely yours,
Thi Tran”
[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.
[2018] FWC 3237
22
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?
Punctuality
[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 201730 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.
General Performance
29 [2017] FWCFB 3941 at [47](2).
30 Exhibit R1, Attachment MD-3.
31 Exhibit R1, Attachment MD-4.
[2018] FWC 3237
23
[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.
Performance as a Dental Assistant
[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.
Discussions regarding transfer and resignation
[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
32 Exhibit A4
33 Exhibit A7.
[2018] FWC 3237
24
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.
Other management of Ms Tran by Bupa Dental
[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.
Conclusion
[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.
DEPUTY PRESIDENT
34 Exhibit A7.
THE FAIR WOR COMMISSION THE SEAL
[2018] FWC 3237
25
Appearances:
Ms Tran on her own behalf
Ms A Malon for Bupa Dental Corporation Pty Ltd
Hearing details:
2018.
Melbourne.
April 12.
Printed by authority of the Commonwealth Government Printer
PR607779
