Dr Hasnain Bashir v

[2023] FWC 1969

[2023] FWC 1969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dr Hasnain Bashir
v

Calvary Private Health Care Canberra Limited t/as Calvary John James Hospital

(U2023/4653)

COMMISSIONER MCKINNON SYDNEY, 8 AUGUST 2023

Application for an unfair dismissal remedy – whether applicant dismissed

1. Dr Hasnain Bashir was employed as an Administrative Officer by Calvary John James Hospital (Calvary Hospital) from 28 August 2017 until 10 May 2023.

1. On 28 May 2023, Dr Bashir applied in time for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Calvary Hospital objects to the application on the basis that Dr Bashir resigned and was not dismissed. It also asserts that the application has no reasonable prospects of success and should be dismissed on that basis. For reasons that will become clear, it is only necessary to deal with the jurisdictional objection.

1. A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[1] Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.

1. Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.

1. The question is whether Dr Bashir was dismissed for the purposes of section 386(1) of the Act. I have decided that Dr Bashir was not dismissed, and these are my reasons. The application will be dismissed.

Was Dr Bashir dismissed?

1. On 1 November 2022, Dr Bashir was placed on a performance improvement plan relating to use of appropriate templates and improving the level of service provided to patients.

1. A second performance improvement plan was implemented on 15 December 2022 in relation to data entry and appropriate and safe use of equipment. At that time, Dr Bashir was advised of a requirement to perform work in another part of Calvary Hospital.

1. On 14 April 2023, there was a meeting between Dr Bashir, Ms Darshinee Allapin (Admission Officer), Ms Maria Pavkovic (Administration Team Leader), Ms Amber Pascoe (Nurse Unit Manager) and Ms Gemma Geikie (Acting Team Leader). The purpose of the meeting was to discuss Dr Bashir’s performance.

1. On 27 April 2023, Ms Rachelle Chiffonne (Patient Services Manager) called Dr Bashir and explained that she had continuing concerns about his performance. She said she would be giving him a new performance management plan and asked to meet with him to discuss the matter. Dr Bashir responded by saying that he did not want to be performance managed and that he would not agree to it. When Ms Chiffonne insisted, they agreed to meet the following day at 12.00pm.

1. At 11.07am on 28 April 2023, Dr Bashir emailed Ms Chiffonne to say that he was leaving work due to feeling unwell.

1. At 1.49pm on 28 April 2023, Dr Bashir emailed Calvary Hospitals’ human resources team. The email said:

“Hello

I am writing you after careful consideration of the events happening with me from last few months but its now getting worse. I cant take it more as my health is deteriorating with each passing day at work. I am stressed & feel the pressure every-time as a result my ECG today was very alarming.
I want to request for your attention with the work place culture practiced my PSM & Admin Team Lead since they took over the office last year. Highlighting mistakes, pressurising for the mistakes, threatening tone in person & emails, asking for explanations again & again, questioning my commitment after I spend more than 5.5 years in CJJH.
It never happened before. I worked with 5 PSMs in my career with wonderful appreciation & performance appraisals at CJJ but this PSM/Admin Team lead brought politics, favouritism, victimisation. I never complained in my entire professional career against any one but its enough as I am started to suffer with depression, anxiety & stress. It feel so bad how in just a year the team culture all got downfall as people started to question/ complain. My former colleagues who left in last 1 year they all gone through this & now I am facing that.
Furthermore, I changed my area to overcome this issue but having an immediate supervisor in my area still I face lot of interference, questioning, explanations from PSM/Admin Team Lead. This email will letting you know that work place stress is affected me in a way that my medical condition is getting serious. They are pushing to a point where I have to resign due to present culture.

I am available to discuss in person or on phone more with confidentiality.

Kind regards,
Hasnain Bashir”.

1. On 1 May 2023, Dr Bashir contacted Ms Chiffonne to advise that he had been in a car accident, that he was fine but that his car was totally damaged, and that he would update her. Ms Chiffonne responded by asking him to let her know if there was anything she could do to help, and if he would be in that day. She separately filed an incident report about the car accident with the work, health and safety team. She subsequently checked on Dr Bashir and asked him if he was okay. He again replied that he was fine.

1. After checking with Dr Bashir if he wanted to go ahead with it, the meeting initially scheduled for 28 April 2023 was held on 3 May 2023. Dr Bashir attended the meeting with Ms Chiffonne, Mr Dale Song (acting General Manager/Chief Financial Officer) and Ms Pavkovic. They discussed ongoing performance concerns and Dr Bashir’s previous performance improvement plans. Dr Bashir acknowledged some of the alleged conduct and denied others. He said the issues had been resolved last year, and that anyone who said otherwise was lying.

1. Ms Chiffonne proposed that Dr Bashir engage in a performance management plan under her supervision and with her support. This would require him to work from the switchboard in main reception as it was closer to Ms Chiffonne’s work area. She said that if there was no improvement in his performance, the only other option for him was probably to resign. She invited Dr Bashir to consider agreeing to the performance management plan and proposed a follow up meeting 6 days later, on 9 May 2023 at 2.00pm.

1. Dr Bashir asserts that Ms Chiffonne shouted at Dr Bashir during the meeting, or that she pointed her finger at him while talking. I do not accept the submission, which is denied by Ms Chiffonne. Where there is a conflict in the evidence, I have preferred the evidence of Ms Chiffonne. Her evidence was consistent, clear and precise. In contrast, Dr Bashir spoke of matters in a general way, rather than with precision. He was prone to exaggeration at times and his testimony was affected by the perception of being singled out by Ms Chiffonne. There is no basis for reaching a conclusion of this kind in the evidence. Ms Chiffonne’s actions in relation to Dr Bashir involved taking ordinary steps to manage performance in response to customer and staff complaints. I accept that performance management was not a welcome experience for Dr Bashir, but it formed part of Ms Chiffonne’s responsibility as Patient Services Manager and it was not unreasonable for Ms Chiffonne to seek to manage his performance.

1. At 12.57pm on 9 May 2023, Dr Bashir sent an email to Ms Chiffonne to say:

“Hello Rachelle

I finish at 2PM. I don’t have car now a days. I have to pick my kids. Kindly please consider and accept my apologies for not attending at this given time.

Thanks

Hasnain Bashir”.

1. Ms Chiffonne responded to say that she understood and would send out a new calendar invitation. She then rescheduled the meeting for 9.00am on 10 May 2023.

1. On 10 May 2023, the follow up meeting went ahead. Dr Bashir advised that he would not be entering a performance management plan and that he was resigning. He handed a prepared letter of resignation to Mr Song. The letter said:

“Subject: - Resignation from the post of Administration Officer

It is to my dissatisfaction that I submit my resignation from my position as Administration Officer at Calvary John James Hospital.
I loved my time at CJJH but because of unavoidable circumstances, pressures and stressful environment that I am going to address in detail at the top-level forums, I decided to resign. I wish we could have worked out an agreement that allowed me to grow my career but appears that current circumstances will not allow it. I am forced to resign from my position and end a journey of nearly six years with the organisation. I accept the severance package offered on Yd May meeting with PSM and CEO.

I am thankful to all my internal stakeholders from 2017 till the date that helped me to feel part of the family. I enjoyed my time and working. I am thankful to the management for providing me with all the resources and support which were useful to make my stay comfortable. I will miss all the people I have connected with during my employment.

Lastly, I wish all the best to Calvary Heath Care for their future grown and prosperity.

Sincerely,

Dr Hasnain Bashir”.

1. Dr Song read the letter and disagreed that Dr Bashir had been forced to resign. Dr Bashir said he did not want to be in an organisation where his character was questioned. Notice of termination was discussed and Ms Chiffonne said she would ask the human resources team for advice. She thanked Dr Bashir for his years of service and said that the process was about his work performance and nothing else. Dr Bashir said “Thank you” and the meeting ended.

1. At 10.53am on 12 May 2023, Ms Chiffonne sent an email to Dr Bashir:

“Dear Hash,

As discussed I have attached the exit interview template for your convenience. Please email back once completed.

Please note that you are required to return your uniforms, swipe cards, name badges etc. before the 7^th June and if you could also drop the master key back to pre-admissions ASAP that would be much appreciated.

I wish you all the very best of luck on your next adventure. You will be greatly missed by the JJ team.

Thank you for everything.
 
Rachelle Chiffonne
Patient Services Manager”.

1. Dr Bashir sent a message to Ms Chiffonne to the effect that he was willing to work out his post-resignation notice period.

1. At 12.53pm on 12 May 2023, Ms Chiffonne wrote again to Dr Bashir:

   “Hi Hash,

   I have been advised by payroll that your resignation has been received and processed in accordance to our current policies and procedures.
   They will process your termination with the next regular pay run, and pay out the 4 weeks’ notice then, from the date of the resignation.
   You are not required to work during that time as Wednesday 10-5-2023 was considered your last working day.

   Thank you again for your service and we wish you all the very best.

   Kind Regards,
    
   Rachelle Chiffonne
   Patient Services Manager”.

Consideration

1. There is no dispute that Dr Bashir resigned on 10 May 2023. That he did so is plain on the face of the record.

1. Dr Bashir was not forced to resign. Faced with the possibility of further performance management, Dr Bashir made a choice: not to participate in that process and instead to bring the employment relationship to an end.

1. The intention of Calvary Hospital in seeking to place Dr Bashir on a performance management plan was to resolve its concerns about his performance, in connection with customer and staff complaints. These were genuinely held concerns. I am satisfied that the Hospital, including through Ms Chiffonne, genuinely wanted to see those concerns resolved. The evidence does not establish that as at 10 May 2023 Calvary Hospital had formed any intention to bring Dr Bashir’s employment to an end.

1. I accept that Ms Chiffonne raised the prospect of resignation with Dr Bashir, but this was in the context of explaining the consequences of Dr Bashir failing to improve his performance under the proposed performance management plan. No plan had yet been implemented. The prospect of resignation was a future possibility, rather than any ultimatum given to Dr Bashir.

1. There was no requirement for Dr Bashir to decide what he wanted to do then and there. As he was resistant to the possibility of further performance management, Dr Bashir was asked to think about it over the coming 6 days.

1. Dr Bashir took the opportunity to consider his position. He decided not to participate in the performance management plan. In his own words, he “decided to resign”. He put his decision in writing and handed it to Mr Song. They then discussed the matter in person. Mr Song disagreed with the notion that Dr Bashir had been forced to resign. Dr Bashir did not change his mind, either then or in the later exchange of emails with Ms Chiffonne about the steps that were required to finalise the employment relationship.

1. Further, resignation was not the only choice available to Dr Bashir. He could have chosen to remain in employment and participate in the performance management plan. He could have met the performance concerns and had them resolved, just as he had done in connection with the first performance improvement plan.

1. I do not accept that as at 10 May 2023, the workplace was so “horrifying” that successful completion of the performance management plan was an unrealistic possibility. The evidence is to the contrary: repeated and reasonable steps had been taken to support Dr Bashir in his employment, including in response to concerns he raised about workload and whether his work environment was safe. In the context of staff shortages, there was no reason for Calvary Hospital to bring about an end to the employment relationship, other than in connection with the performance concerns. That process had not yet run its course. The opportunity remained for Dr Bashir to maintain his employment by meeting Calvary Hospital’s expectations.

1. In the circumstances, I reject the contention that Dr Bashir had no effective choice but to resign.

Conclusion

1. Dr Bashir was not dismissed by Calvary Hospital. Accordingly, he is not eligible to apply for an unfair dismissal remedy.

1. The application is dismissed.

COMMISSIONER

Appearances:

Dr H Bashir on his own behalf.
M Douglas for the respondent.

Hearing details:

2023.
Sydney (by video):

July 24.

[1] Fair Work Act 2009 (Cth), s 385(a).

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