Ms Nicole Challancin v Smile Dental Clinic Pty Ltd - [2014] FWC 4539

[2014] FWC 4539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Nicole Challancin
v
Smile Dental Clinic Pty Ltd
(U2014/6563)

COMMISSIONER CLOGHAN

PERTH, 14 JULY 2014

Unfair dismissal.

[1] On 15 April 2014, Ms Nicole Challancin (Applicant or Ms Challancin) made application to the Fair Work Commission (Commission) seeking a remedy for alleged constructive dismissal from her employment with Smile Dental Clinic Pty Ltd T/A Smile Dental Clinic (Employer).

[2] The Employer, in its response to Ms Challancin’s application, asserts:

● the Applicant was not dismissed; and in the alternative,
● the application was lodged out of time, that is, more than 21 days after the dismissal took effect.

[3] The Applicant states in her application that she was notified of her dismissal on 7 March 2014. With respect to the date the dismissal took effect, the Applicant in her application states “I was too stressed to go back to work after the day they told me about my change in job and to look for another job”.

[4] As part of her application, Ms Challancin has provided correspondence from the Employer dated 10 March 2014, which relevantly states:

“...I am altering your work duties to remove you from the stress of chair-side duties. You will now be in charge of the Sterilising Department, Monday to Friday...”

[5] On 8 May 2014 the Applicant, in an email communication to the Commission, contends that “...I finished my work on the 26th March 2014! That was my last day!”

[6] For the Commission to deal with an application for unfair dismissal, it is necessary for the Commission to determine if the person was dismissed and when that dismissal took effect. If the Commission determines that the person has been dismissed and also the date the dismissal took effect, it is necessary to determine if the application was filed in the Commission within 21 days after the dismissal took effect. Should the application not have been lodged within 21 days after the dismissal took effect, it is necessary for the Commission to be satisfied that there were exceptional circumstances to allow the application to be made after the 21 day statutory timeline.

[7] I advised the parties that I intended to determine the Employer’s jurisdictional objections by way of written submissions.

[8] This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[9] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“(a) the person has been dismissed; and

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

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

[10] Section 386 of the FW Act set out the meaning of dismissed as follows:

“(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.

(2) ...”

CONSIDERATION

What was the date of the alleged dismissal?

[11] On 5 March 2014, the Applicant was involved in a workplace incident with Dr Davidson.

[12] On 6 March 2014, the Applicant attended work. Dr Davidson was not at work and the Clinic Practice Manager had not been informed by Dr Davidson of what had happened the previous day. The Employer states, and Ms Challancin does not object, that she approached the Practice Manager and asked whether she had been fired. The Practice Manager advised that she could not answer any questions regarding the incident until she had discussed the matter with Dr Davidson.

[13] On 7 March 2014, Ms Challancin attended work. Before she left the workplace, Ms Challancin had a further meeting with the Practice Manager.

[14] During that meeting, Ms Challancin asked whether she needed a lawyer or her union present. Ms Challancin again asked whether she had been fired. The Applicant was advised that she could have a support person present and that she was not being dismissed.

[15] At the meeting on 7 March 2014, the Practice Manager informed Ms Challancin that Dr Davidson no longer wanted her to work “chair side” and that commencing 17 March 2014, the Applicant was to work in the Sterilising Department Monday to Friday, rather than 4 days on, 4 days off.

[16] The Practice Manager emphasised to Ms Challancin that she was still employed, however, due to the workplace conflict, Dr Davidson would like her to seek other employment.

[17] Ms Challancin asked for the arrangements to be put in writing.

[18] The Practice Manager requested that Ms Challancin document the workplace incident and provide her version of events.

[19] Ms Challancin pressed for a reason for the change of duties and roster and was advised that it was due to workplace conflict.

[20] At the close of her duties on 7 March 20134, Ms Challancin was due to take her four (4) days off and return to work on Wednesday 12 March 2014. Near to conclusion of the meeting with the Practice Manager, Ms Challancin was asked whether she would return to work on Wednesday 12 March 2014, her next day on duty. Excluding the profanity, Challancin replied in the negative.

[21] On the afternoon of 8 March 2014, the Applicant attended the home of the Practice Manager. In the course of the discussion, Ms Challancin requested two (2) months pay in return for not pursuing any action in the Commission or at law.

[22] On Monday 10 March 2014, Ms Challancin collected the correspondence she had requested of the Employer at the meeting on 7 March 2014. The relevant parts of the correspondence are as follows:

“In recent months I have had numerous reports from Dentists and staff members regarding conflicts of personality within the workplace, and I feel that this matter needs to be addressed.

...

There is a feeling in the Practice that you are not happy, as you are always complaining about the other staff. I think your personality is better suited to a less stressful environment than clinical duties. Accordingly, I am altering your work duties to remove you from the stress of chair-side duties. You will now be in charge of the Sterilising Department, Monday to Friday, and I feel this will allow a more peaceful and harmonious working environment to develop around you.

...

As you were advised by senior management during a private meeting on Friday, 7 March 2014, it is your right to seek legal advice or to discuss this matter with the Fair Work Ombudsman, if you are a member of a union, it is your right to seek their opinion and advice if you so wish.

Employees and employers may seek information about their employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at On 11 March 2014, Ms Challancin attended the Dental Clinic and provided the Employer with a medical certificate in which she was unfit to work from Wednesday 12 March to 26 March 2014 inclusive.

[24] On 27 March 2014, Ms Challancin telephoned the Clinic to advise that she would not be returning to work.

[25] Ms Challancin alleges that she has been constructively dismissed.

[26] From the material provided by the parties, I cannot find that the Employer dismissed the Applicant. Accordingly, the provisions of s.386(1)(a) of the FW Act are not applicable to Ms Challancin’s dismissal. In short, the Employer did not dismiss the Applicant.

[27] I have no evidence on whether Ms Challancin was paid for the period between 12 and 26 March 2014.

[28] In her application, Ms Challancin states that she was notified of her dismissal on 7 March 2014. However, Ms Challancin does not state when the dismissal took effect. As at 10 March 2014, Ms Challancin could not have thought she had been constructively dismissed or dismissed at all, because she attended her General Practitioner and obtained a medical certificate from 12 to 26 March 2014 which she submitted to the Employer on 11 March 2014. Further, on 10 March 2014, Ms Challancin was advised, in writing by the Employer, where she would be working in the Clinic and her new work roster arrangements commencing 17 March 2014.

[29] It is true that Dr Davidson, in the Employer’s correspondence of 10 March 2014 states, “Should you decide to seek alternative employment Smile Dental Clinic will allow you time off for interviews...” but this offer is based on an ongoing employment relationship.

[30] On receipt of the application, the Registry of the Commission advised the Applicant that her application was filed outside the statutory timeframe of 21 days. Ms Challancin’s response was:

“...I did lodge that report with you within 21 days as I finished my work on the 26th of March 2014! That was my last day! I made the claim on the 15th of April.”

[31] As I have already found that the Employer did not dismiss Ms Challancin at any time, she could not have been dismissed by the Employer on 26 March 2014.

Did the Applicant resign?

[32] For the purposes of paragraph 386(1)(b) of the FW Act did Ms Challancin resign? On the basis of the Employer’s statement, Ms Challancin telephoned the Practice Manger on 27 March 2014, stating that “she would not be returning”. On a beneficial reasoning of these words, (because it could be argued that Ms Challancin abandoned her employment), I find that she resigned from her employment.

[33] Accordingly, it is necessary for the Commission to determine whether Ms Challancin was “forced” to resign because of the conduct or course of conduct of the Employer.

Was the Applicant “forced” to resign in accordance with s.386(1)(b) of the FW Act?

[34] Ms Challancin does not deny that she telephoned the Employer to say that she would not be returning to work.

[35] The employment contract consists of two parties. If Ms Challancin considered that the Employer had acted in the incident between her and Dr Davidson on 5 March 2014 and the correspondence dated 10 March 2014 to force her to resign, she did not resign. Instead, Ms Challancin elected to continue to be bound by her contract of employment and accessed two weeks’ sick leave.

[36] Put differently, if Ms Challancin thought that the Employer had acted in such a way that it no longer wanted to be bound by its contract of employment with her, Ms Challancin chose not to resign. Instead, Ms Challancin regarded herself and the Employer still bound by the contract of employment and she accessed two weeks’ sick leave. Having accessed sick leave, Ms Challancin forfeits the right to claim that she was forced to resign by the actions of the Employer on 5 and 10 March 2014. Ms Challancin affirmed and accessed her entitlements pursuant to her contract of employment from 12 to 26 March 2014 inclusive. From the submissions, nothing occurred during the period 12 to 26 March 2014 which the Employer took to further demonstrate that Ms Challancin was forced to resign.

[37] A forced resignation is when an employee has no real choice but to resign. 1 In this application, was resignation the only choice available to Ms Challancin or did she have alternatives?

[38] By her actions in resigning, Ms Challancin closed off any possibility of exploring alternatives to severing the employment contract and employment relationship.

[39] The Employer, in relocating Ms Challancin to another area of the Dental Clinic, and allocating her different duties, does not evince an intention by the Employer to no longer be bound by the employment relationship. The Employer was attempting to manage the workplace conflict.

[40] The Employer has provided a Job Description for Ms Challancin’s position. The Employer asserts, and the Job Description provides, for the Applicant to assist in the provision of dental care services to patients, “provide assistance with sterilising and processing of all instrument and equipment” and “to carry out duties as necessary for the efficient operations of the practice”.

[41] A Full Bench of the Australian Industrial Relations Commission (AIRC) in ABB Engineering Construction Pty Limited v Doumit [Print N6999, 9 December 1996] (ABB) made the following observation:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[42] The facts are that Ms Challancin was rostered back at work on 12 March 2014. During that period, the Applicant on 10 March 2014, received correspondence from the Employer which set out what work arrangements would take effect from 17 March 2014. Ms Challancin had required this change in work arrangements. The correspondence clearly sets out an ongoing employment relationship. At this point, Ms Challancin could not say that she had been constructively dismissed or forced to resign because of the content of the correspondence, but more importantly, she proceeded to take two weeks sick leave from 12 March 2014. Further, as her email to the Commission states, her last day of “work” was 26 March 2014.

[43] From the submitted material, there is no letter of resignation from Ms Challancin. There is no express utterance by the Applicant to the Employer of “resigning”, “being dismissed”, “being constructively dismissed”, or “her employment being terminated” - the only words uttered by Ms Challancin were that she would not be returning to work.

[44] So much is clear from Ms Challancin’s submission that she was aggrieved and unhappy with the incident with Dr Davidson. Ms Challancin poses the question, “how could anyone go back after such verbal abusive??? (sic) I was forced to leave my job because he did not want me there!”

[45] The incident may have led to the Applicant not returning to work or resigning but that, of itself, does not automatically lead to the conclusion, as the FW Act requires, that she was “forced” to resign.

[46] The Employer put in writing an ongoing, but different, employment relationship on 10 March 2014. During the next two weeks, there appears to have been no contact between the Employer and Ms Challancin.

[47] In summary, there is nothing in the Employer’s communication of 10 March 2014 that constitutes an express termination of the Applicant’s employment. From the Applicant receiving the correspondence on 11 March 2014 to 26 March 2014, there is nothing in the Employer’s actions that could be directed to forcing Ms Challancin to resign. Should the Applicant be relying on the Employer’s correspondence of 10 March 2014, it only provides advice that if Ms Challancin feels the need to seek employment elsewhere, she will be given leave to attend interviews. All of the information relayed to Ms Challancin is within the context of providing telephone numbers and website addresses of the Fair Work Ombudsman.

[48] To submit, as Ms Challancin has done, that she was “forced to leave my job” would be to ignore the alternative ongoing employment relationship. Secondly, it would also ignore that the fact that the Applicant did not attempt to discuss any alternative ongoing arrangements with the Employer and any other options which may have been available. There are no contrary submissions to the Employer setting out the new working arrangements for Ms Challancin’s ongoing employment, and her saying that she would not be returning to work. In such circumstances, I am unable to reach a conclusion that Ms Challancin was forced to resign on 27 March 2014.

[49] Having considered all the submissions and not only the incident on 7 March 2014, in line with the observations of the Full Bench in ABB, I am satisfied that Ms Challancin exercised her discretion to leave her employment. An objective analysis of what occurred after the incident reveals that the Employer wished to continue with what appeared to be a tenuous employment relationship, but Ms Challancin made the unilateral decision to resign based on her perception that she was being forced to leave without attempting to discuss or confirm those perceptions.

CONCLUSION

[50] Having considered the submissions from both parties and for above reasons, I find that Ms Challancin chose to end the employment relationship on 27 March 2014 and was not dismissed in accordance with paragraph 386(1)(b) of the FW Act. Accordingly, there is no jurisdiction for the Commission to consider the Applicant’s unfair dismissal application and it must be dismissed. An order to this effect is made conjointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 9 and 30 June 2014.

Respondent: 24 June 2014.

1 Mohazab v Dick Smith’s Electronics Pty Ltd (No 2) (1995) 62 IR 200 at para 206

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