Kaoussar Abbouchi v Holistic Dental

[2014] FWC 1764

[2014] FWC 1764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaoussar Abbouchi
v
Holistic Dental
(U2013/9966)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2014

Application for relief from unfair dismissal - resignation - application dismissed.

[1] Ms Kaoussar Abbouchi was employed by Holistic Dental Holding Pty Ltd (Holistic Dental) from 20 December 2010 until her employment ended on 6 May 2013.

[2] Holistic Dental objected to Ms Abbouchi’s claim that she had been unfairly dismissed claiming that Ms Abbouchi resigned.

Representation by a lawyer

[3] On 30 January 2014, I granted permission to Holistic Dental to be represented by a lawyer.

[4] Ms Abbouchi objected to permission being granted on the basis that it would put her at an unfair disadvantage and that the factual dispute was straight forward.

[5] Holistic Dental submitted that given the jurisdictional objection had some complexity legal representation would enable the matter to be dealt with more efficiently. It submitted that Holistic Dental is a small business and it does not possess the legal or human resources expertise to represent itself effectively. It further submitted that it would not be unfair to Ms Abbouchi to permit it to be represented as Ms Abbouchi has conducted her case competently without the need for legal representation while Holistic Dental would not be able to do so. Further both Dr Badrish Krishna and Mr Eugene Loh, Holistic Dental’s senior personnel, were also witnesses.

[6] I accept the submissions of Holistic Dental that the jurisdictional objection would be dealt with more efficiently if at least one of the parties was legally represented. While I accept Ms Abbouchi’s submission that the factual dispute between the parties is not complex the finding that a resignation was a dismissal raises a more complex legal issue.

[7] While Ms Abbouchi is not legally represented the decision of one party to represent herself or himself is not determinative of the question of whether the other party can be represented.

[8] I accept the submissions of Holistic Dental that it would be unfair to Holistic Dental to expect Mr Loh or Dr Krishna to represent it given they have no experience with the Fair Work Act2009 or the Fair Work Commission procedures particularly in circumstances where both are witnesses in the proceeding.

[9] I therefore decided to exercise my discretion to permit Holistic Dental to be represented by a lawyer.

[10] The matter proceeded by way of determinative conference.

Background

[11] Ms Abbouchi claimed that on 1 May 2013 Dr Krishna physically assaulted her by elbowing her down the stairs. Dr Krishna denied touching Ms Abbouchi and said she slipped and fell down the stairs. 1

[12] The evidence established that on 1 May 2013, Dr Krishna asked Ms Abbouchi for a USB stick. The USB stick contained patient information, work related information and personal information. Ms Abbouchi accepted that Dr Krishna had given her the USB stick but she said it was her property. On the night in question, Ms Abbouchi gave Dr Krishna the USB stick but she claimed that Dr Krishna then told her that he would not return the USB stick to her or allow her to take a copy of the USB stick. 2 Dr Krishna denied telling Ms Abbouchi that he would not return the USB stick. It was his evidence that he need the patient data it contained.3

[13] Ms Abbouchi then followed Dr Krishna into his office asking him to give her back the USB stick. Ms Abbouchi said the conversation became more heated. Ms Abbouchi accepted that she was angry and upset by Dr Krishna’s conduct. 4

[14] While she was in his office she picked up his laptop and said “[t]hings like this are very precious. If I was to take this from you, you would not like it.” 5 Ms Abbouchi said that Dr Krishna pulled the laptop from her and pushed her and she fell into the chair.6 She subsequently described this event differently. She said that when he snatched the laptop from her “he pulled me back as well. That’s when I went down on the chair. That’s when I was sat back down on the chair.”7 In her witness statement, Ms Abbouchi said that “he then marched at me took the laptop of[f] me and he pushed me away and when I continued to reach out to grab the USB of[f] him he elbowed me for the first time.”8

[15] Ms Abbouchi stated that while she was in Dr Krishna’s office they were moving around the office and Dr Krishna “kept on asking [her] to move out of the way” 9 but she was not going to go without her USB stick.10 Ms Abbouchi accepted that she kept following Dr Krishna around the room.11

[16] Dr Krishna left the room to go home and Ms Abbouchi followed him out to the landing at the top of the stairs to the car park. 12 While there was a dispute about where Dr Krishna had put the USB stick, Ms Abbouchi gave evidence that she went to grab the USB stick out of his hand13 and Dr Krishna elbowed her and she lost her balance and fell down the stairs.14 She said that Dr Krishna moved out of her way which meant that she fell down the stairs.

[17] Dr Krishna denied pushing Ms Abbouchi down the stairs or elbowing her and causing her to fall down the stairs. He says she grabbed for the USB stick and he stepped away from her and she slipped and fell down the stairs. 15

[18] Ms Abbouchi gave evidence that while she was at the bottom of the stairs she was crying out, “I can’t believe he pushed me down the stairs and would hurt me like that.” 16 It was her evidence that Dr Krishna did not come to her aid and that she was assisted by other colleagues.17

[19] Dr Krishna telephoned Ms Abbouchi after the incident while she was still at the clinic. She did not take the call. Dr Krishna was advised by Ms Abbouchi’s colleagues that she was okay. 18

[20] The same evening Dr Krishna sent her a text message in which he made reference to his intent to help backfiring. 19

[21] On 2 May 2013, Dr Krishna sent her a text message in which he asked her if she would like to come and speak to him and the practice manager. 20 Ms Abbouchi replied expressing disbelief about what had happened.21

[22] Mr Loh, the practice manager, sent a text message to Ms Abbouchi on 2 May 2013. He told her that he had heard about what happened and asked if she would like to speak to him. 22

[23] Ms Abbouchi said she spoke to Mr Loh and told him what happened. 23

[24] She said that later that day her email access password was changed so that she could no longer correspond with patients and the lab. 24

[25] On 3 May 2013, Dr Krishna sent Ms Abbouchi a text message and again made reference to his attempt to help backfiring. He accepted that Ms Abbouchi did not want to talk to him but said that when she thought it was appropriate, to call. Ms Abbouchi replied advising Dr Krishna that she had been physically hurt and she did not accept his apology. She messaged him again the next day telling him not to call her. Dr Krishna replied the same day saying she was part of the team no matter what happened. 25

[26] On 6 May 2013, Ms Abbouchi sent Mr Loh a text message saying that she was in a very bad way and that her GP had recommended that she rest and have a break. She asked that her sick days be considered, she asked for her annual leave and for what Dr Krishna owed her for cases, to be paid in that week’s pay. Mr Loh gave evidence that he called Ms Abbouchi because he was not clear what type of leave she was seeking. 26

[27] Mr Loh sent her a text message the same day asking if she intended coming back or if she needed time off. He asked her to let him know by Wednesday so that the pays could be actioned. He also asked her how many cases she was claiming and how much per case. He asked her to call him or to come in to work out her pay. 27

[28] Mr Loh said on the same day he discovered that there was a problem with the practice’s email password and he had the password changed so the staff could access their work. 28

[29] On 7 May 2013, Ms Abbouchi sent Mr Loh a text message complaining that he did not seem “to see the seriousness of what doc Krishna did he physically assaulted [her] causing bruises and physical injury.” 29 The text message complained about the email access being changed and she accused the practice of protecting itself and not considering her. She advised that she “no longer [wanted to] be part of a team that [she] could no longer trust.” She asked for her annual leave and pay plus the payment for over 100 cases.30

[30] On 8 May 2013, Mr Loh sent Ms Abbouchi an email in which he told her that he could only pay out her annual leave if she resigned and that her email did not say she was not coming back. He told her therefore that he would process her normal pay including 14 hours of sick pay. He told her that if she sent in her resignation he could pay the outstanding annual leave. He further asked her to return all information that belonged to the practice and not to use any patient information without their consent. He advised that he would continue to pay her and could pay for annual leave on a fortnightly basis until it ran out. 31

[31] Ms Abbouchi replied advising that she had emailed her resignation and her doctor’s certificate and that she didn’t want to talk. 32

[32] On checking his emails, Mr Loh found an email from Ms Abbouchi, sent on 8 May 2013, in which she advised that she would fax through her medical certificates but did not want come in. 33

[33] Attached to that email was an unsigned letter from Ms Abbouchi to Holistic Dental advising that she wished to resign her employment as she had “been physically assaulted on 1st of May by Dr Krishna and no longer [felt] comfortable or safe to work in that environment. Due to the assault I have been physically, mentally and emotionally hurt and bruised unable to return to neither work nor feel safe to be in his presence.” 34

[34] Mr Loh gave evidence that he sought advice from the Australian Dental Association about the resignation and was told that he could not accept a combination of the allegation and the resignation 35 and so he sent Ms Abbouchi a text message saying in part that her resignation “is not proper and I will explain and you will get an additional 2 weeks pay.” 36

[35] Ms Abbouchi replied asking what the proper way was 37 and Mr Loh replied saying she had to give two weeks’ notice from 6 May 2013 and that it cannot include anything apart from the resignation.38

[36] Ms Abbouchi replied saying she did not need to give two weeks’ notice because she had been assaulted and she could not be expected to attend work. She said she had a medical certificate. 39

[37] Further emails passed between them but Ms Abbouchi insisted that her resignation letter stand. 40

[38] On 10 May 2013, Mr Loh acknowledged Ms Abbouchi’s resignation and enclosed a pay slip.

Was Ms Abbouchi forced to resign because of conduct, or a course of conduct, engaged in by her employer?

[39] Ms Abbouchi says she was forced to resign because she was assaulted at work and Holistic Dental took no steps to investigate the incident or provide her with a safe place to work.

[40] While it is uncontested that Ms Abbouchi fell down the stairs how that happened is in contest. While there is a dispute between Ms Abbouchi’s and Dr Krishna’s evidence about whether Dr Krishna intended returning the USB stick to Ms Abbouchi, I accept that no matter what Dr Krishna said on the day, she believed that he was not going to return the USB stick. I accept that she was upset at the thought that she was going to lose the work she had stored on the USB stick.

[41] What is not in dispute is that after Ms Abbouchi handed Dr Krishna the USB stick she took steps to get it back including following him into his office, following him around his office, picking up his laptop in retaliation and following him out of the office when he attempted to leave. She then attempted to grab the USB stick from him while he was at the top of the stairs.

[42] I do not accept Ms Abbouchi’s submission that Dr Krishna pushed her down the stairs. I also do not accept her submission that Dr Krishna elbowed her down the stairs.

[43] Ms Abbouchi grabbed for the USB stick and either Dr Krishna shrugged her off and moved away from her and she lost her balance and fell down the stairs or Dr Krishna moved away from her and she lost her balance and fell down the stairs. In neither situation did Dr Krishna physically assault her or cause her to fall down the stairs. Her fall down the stairs was an accident caused by her attempt to retrieve the USB stick.

[44] I do not accept Ms Abbouchi’s submissions that if it had been an accident Dr Krishna would have come to her aid. After she fell, Ms Abbouchi was screaming out that Dr Krishna had pushed her down the stairs. In those circumstances it was not inappropriate for Dr Krishna to rely upon others who were immediately on the scene to assist Ms Abbouchi.

[45] While I accept that Ms Abbouchi was upset about what happened there is nothing in that incident or what happened in the next few days that indicated that she was forced to resign.

[46] Mr Loh was the practice manager. Dr Krishna is a part owner of the business. There was nothing in their communications with Ms Abbouchi after the event that could have led her to believe that they were unwilling to respond to her concerns.

[47] Both asked her to come in to meet with them and while it was understandable that Ms Abbouchi, given her perception about what had happened was reluctant to do so, they did not insist she come in immediately. They did not give her any ultimatums. Mr Loh recognised her claim for sick leave and told her she would be paid sick leave.

[48] Ms Abbouchi admitted that she asked for her annual leave to be paid in full because she wanted him to threaten Dr Krishna that she was resigning. 41

[49] When Mr Loh told her that he could not pay out all her annual leave unless she resigned she advised him that she was resigning. While Ms Abbouchi submitted that this resignation was not intended to be with immediate effect and that she wanted them to give her other options, the facts are she sent her employer her resignation letter. I do not accept her characterisation of that letter as notice that she would not return to work while her safety concerns were left unresolved. 42

[50] Mr Loh gave her an opportunity, when he told her he could not accept her resignation in the form she had given it, to retract her resignation but she did not.

[51] Ms Abbouchi complained that Mr Loh did not investigate the incident. 43 Mr Loh gave evidence that he asked Ms Abbouchi about what had happened and he asked Dr Krishna. The other staff did not see the incident. It is not clear if there were any witnesses to the events before Ms Abbouchi fell down the stairs.

[52] Ms Abbouchi’s real complaint is that Mr Loh did not accept her version of events.

[53] Mr Loh had two versions of what happened. He was not given an opportunity to discuss with Ms Abbouchi what would occur when she returned to work because Ms Abbouchi was on sick leave when she resigned.

[54] While a more experienced HR professional may have advised Ms Abbouchi that her concerns would be addressed when she had recovered, the failure to do so did not mean that Holistic Dental did not intend to address Ms Abbouchi’s concerns about her safety or that Holistic Dental’s conduct gave her no option but to resign.

[55] Having concluded that what occurred on 1 May 2013 was an unfortunate accident and that Holistic Dental’s conduct before and after the event did not force Ms Abbouchi to resign, I find that Ms Abbouchi was not dismissed.

[56] Ms Abbouchi’s application for an unfair dismissal remedy must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms K. Abbouchi representing herself.

Ms G. Jardine of Counsel for the Respondent.

Hearing details:

2014.

Melbourne:

30 January.

 1 Exhibit R3 at [24].

 2   Transcript at PN 639.

 3 Exhibit R2 at [20].

 4   Transcript at PN 702 - 705.

 5   Ibid at PN 603.

 6   Ibid at PN 757.

 7   Ibid at PN 877.

 8 Exhibit A1 at [11].

 9   Transcript at PN 847.

 10   Ibid at PN 849.

 11   Ibid at PN 948 - 949.

 12 Exhibit A1 at [13] and Exhibit R3 at [24].

 13   Transcript at PN 1054.

 14   Ibid at PN 985.

 15   Ibid at PN 2253 - 2255.

 16 Exhibit at A2 at [1].

 17   Ibid.

 18   Transcript at PN 1255 - 1281.

 19 Exhibit A1 at [35].

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Exhibit R4.

 24 Exhibit A2 at [5].

 25 Exhibit A1 at [35].

 26 Exhibit R5 at [6].

 27 Ibid at [7].

 28 Ibid at [9].

 29 Ibid at [10].

 30   Ibid.

 31   Exhibit R5 at EL1.

 32 Exhibit R5 at [13].

 33   Exhibit R1.

 34   Ibid.

 35 Exhibit R5 at [15].

 36 Ibid at [16].

 37   Ibid.

 38   Ibid.

 39 Exhibit A1 at [35].

 40   Ibid.

 41   Transcript at PN 1482.

 42   Submissions of the Applicant, 13 January 2014.

 43 Exhibit A1 at [34].

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