Unfair dismissal; employee or self employed?

Here is an extract from a decision of the Fair Work Commission which contains an excellent analysis of the manner in which the Commission determines whether a person was an employee for the purposes of the unfair dismissal jurisdiction.

“Was Mr Farag an employee?

[36] In the present matter the Respondent contends that the Applicant was not an employee at the time of the dismissal but rather was an independent contractor. As a consequence, the Respondent submits that the Applicant is not entitled to pursue his application for an unfair dismissal remedy for want of jurisdiction. It is therefore necessary for me to determine as a matter of jurisdictional fact 26 whether the Applicant was an employee for the purpose of an application for an unfair dismissal remedy made under s.394 of the Act.

[37] The relevant authorities on the distinction to be drawn between an employee and an independent contractor are well established and were helpfully summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 27 (French Accent) where it set out the relevant principles to be applied including consideration of various indicia as identified in Stevens v Brodribb Sawmilling Co Pty Ltd28.

[38] More recently another Full Bench in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats 29 (Gupta) reaffirmed French Accent as the relevant authority but in doing so cautioned against the use of the multi-factorial approach as merely an arithmetic exercise when they stated;

[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather “a matter of obtaining the overall picture from the accumulation of detail”. This involves “an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion”. (footnotes omitted)

[39] As also stated by the Full Bench in Gupta, conduct of the “multi-factorial evaluative approach” proceeds on the premise that “the individual in question personally performs work pursuant to a contractual relationship with another person or entity” 30. On that premise, the question to then be answered by use of the multifactorial approach is that of whether the work is performed as a contractor or as an employee.

[40] I am satisfied on the basis of the material before me that the Applicant personally performed work for the Respondent pursuant to a contractual relationship. It is therefore necessary for me to determine whether he did so as an independent contractor or as an employee. In doing so, I will apply the approach set out in the relevant authorities referred to above.

Terms of the contract

[41] The 2016 Agreement provides an appropriate starting point in considering the nature of the relationship between the Applicant and Respondent. The Respondent points to clauses it says are persuasive, if not decisive, as to establishing the true nature of the contractual relationship. The relevant clauses are summarised above at [7].

[42] The Full Bench in Gupta summarised the various authorities that bear upon the importance of the contractual provisions, when in referring to the terms of the Services Agreement between Mr Gupta and Uber Eats the following was said;

“[39] However all the above provisions may be regarded as merely labelling or characterising the nature of the contractual relationship between Ms Gupta and Portier Pacific/Uber; none of them set out the substantive rights and obligations of that relationship. It is well established that such labels cannot alter the substantive nature of the relationship. As was stated by Isaacs J in Curtis v Perth & Fremantle Bottle Exchange Co Ltd:

“Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.”

[40] More recent decisions of the Federal Court Full Court have elucidated this principle in the context of the identification of whether an employment relationship exists. In ACE Insurance Limited v Trifunovski, Buchanan J (with whom Lander and Robertson JJ agreed) said that “the nature of the relationship may be legitimately examined by reference to the actual way in which work was carried out”. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ (with whom Barker J relevantly agreed) said that: “…appellate courts in Australia and the United Kingdom have been particularly alert, when determining whether a relationship is one of employment, to ensure that form and presentation do not distract the court from identifying the substance of what has been truly agreed. It has been repeatedly emphasised that courts should focus on the real substance, practical reality or true nature of the relationship in question…”. And in WorkPac Pty Ltd v Skene the Full Court said “The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.

[43] Returning to the terms of the 2020 Agreement, there are number of clauses that point strongly towards an independent contracting relationship. They are the explicit agreement of the parties that the relationship entered into by the Applicant was not one of employment, the capacity of the Applicant to work for others, the Applicant’s proscribed professional autonomy, the tax, superannuation and insurance arrangements and the revenue sharing structure (the Dental Draw) all strongly point to the Applicant being an independent contractor.

[44] In my view the terms of the contract point to an independent contractor relationship on balance. However, the authorities make clear that while the terms of the 2020 Agreement may be relevant, they are not decisive, and it is necessary to also consider the substance of the relationship rather than just the form as expressed in the contract. It is to that I now turn.

Control

[45] A significant factor to be assessed in determining the true nature of the relationship between the Applicant and the Respondent is the right of control that resides with the Respondent, not just the practical exercise of that right 31. The High Court in Stevens v Brodribb emphasised that while the degree of control was significant it was not however the “sole criteria by which to gauge whether the relationship is one of employment”. Before turning to consider other indicia, it is appropriate to firstly consider both the right of control and actual exercise of that control by the Respondent over the Applicant in his performance of work. These are considered below.

Rate negotiation

[46] I accept that the capacity for the Applicant to negotiate a rate of Dental Draw above 40% was limited, if at all. This was confirmed by Ms White where she states that the 40% figure operates as an industry standard. While that may be the case, the Applicant had significant control over his income generation through the days/hours he worked, his productivity and the mix of work he performed, the latter point relating to his capacity to undertake higher value procedures. In these circumstances the Applicant was not powerless to influence his earnings.

[47] An individual’s practical capacity to negotiate higher rates is not in my view a feature uniquely present in independent contracting relationships. The presence or absence of such a capacity features in both employment and independent contracting relationships alike. The contended control that the Respondent’s rate setting indicated was in my view due to the respective bargaining positions of the parties and industry practice. Ultimately, the Applicant was at liberty to continue to accept work on the basis offered by the Respondent or seek work or contracts with other clients, which he ultimately did.

[48] Having regard to the above and the Applicant’s capacity to positively impact his earnings while engaged by the Respondent, I don’t regard the issue of the negotiation and setting of rates in the present matter as demonstrative of a level of control pointing towards an employment relationship. It is a neutral factor.

Hours of work

[49] The Applicant at the time of the termination of his contract with the Respondent was working three days per week and had been doing so for some months. Prior to that he had generally worked four days per week in the City Smiles practice. He readily agreed that he had an ability to increase his hours but felt unable to reduce his days/hours below three days per week, that latter point contested by Ms White where she states there was no contractual barrier to the Applicant reducing his hours and that other dentists do so across the Respondent’s network. I accept Ms White’s evidence and in the absence of evidence that a request by the Applicant to reduce his hours below three days per week had been declined, I find that the Applicant had significant flexibility in setting his hours of work.

[50] Of course, it was necessary for the Applicant to consult with management of the City Smiles practice regarding his hours because the delivery of his services was contingent on the availability of support staff and treatment suites. The evidence was clear that the Applicant’s hours of work were able to be varied at his initiative subject to consultation with practice management. The capacity of the Applicant to exercise control over his hours and the days on which he worked is indicative of an independent contractor relationship rather than one of employment.

Patient assignment

[51] The Applicant’s patients were booked in by City Smiles’ reception staff having regard to the days/hours the Applicant worked and the nature of the required procedure. He stated that the bookings were made in consultation with him and that while rarely if at all exercised, he had the ability to decline to see particular patients. This is supportive of a finding that the Applicant exercised a degree of control over his patient assignment, this being more indicative of a contractor relationship.

Follow directions regarding each patient

[52] The Applicant exercised full control over decisions relating to patient treatment. Ms White described it as “clinical autonomy to make decisions” in respect of patient treatment and care. The Applicant was not subject to any direction or control by the Respondent in relation to his patients. The absence of control exerted by the Respondent in respect of patient treatment and care points to an independent contractor relationship existing.

Indemnities and Insurance

[53] The obligation of the Applicant to maintain a range of insurances and professional registration at his cost are common in commercial arrangements entered into between a principal and contractor. They are not features that would ordinarily be present in an employment relationship and for that reason point towards an independent contracting relationship.

Company policies and restraints

[54] It was not is dispute that the Applicant was required to comply with a range of policies. I am not persuaded that such compliance requirements point to an employment relationship. I agree with the Full Bench’s observation in Gupta where it was stated “There is nothing particularly unusual about a principal establishing and enforcing performance and quality standards in respect of independent contractors engaged to perform work” 32. Those observations are in my view particularly relevant in the fields of medical and dental practice. I regard this factor as neutral.

Whether the Respondent presents the worker to the world at large as an emanation of the business.

[55] The Applicant was expected to wear the provided ‘scrubs’ and a name badge with City Smiles branding. It follows that he would have been seen as an emanation of the Respondent’s business by patients. This supports a finding of an employment relationship.

Whether the Applicant performs work for others (or has a genuine and practical entitlement to do so).

[56] I accept the Applicant’s evidence that he worked exclusively for the Respondent over the period 2009 to 2021 save for the last three months where he also worked at another business, Dimos Dental. That he was able to work elsewhere without adverse consequences is consistent with the terms of the 2016 Agreement and the experience of other contract dentists according to Ms. White, evidence I accept. The Applicant did perform work for others and had a genuine and practical right to do so. This is not indicative of the Respondent having a high degree of control over the Applicant. This consequently points towards an independent contracting relationship.

Summary on control

[57] There are limited factors that point to the Respondent having a right to control the Applicant’s performance of work, including that of the imposition of the uniform (branded scrubs and name badge) wearing requirement. Some matters are neutral and there are a number of significant matters that tell strongly against the Respondent having a contractual and/or practical right to control the Applicant’s performance of work. Specifically, the Applicant retained the right to set his hours of work, he was able to undertake work for other clients as evidenced by his contract with Dimos Dental, he maintained a range of insurance policies, and he exercised a high degree of control over the key requirement of his role, that of determining the appropriate treatment and care of his patients.

[58] The matters considered above in relation to the right and practical capacity of the Respondent to exercise control over the Applicant point to the Applicant being an independent contractor and not an employee.

Other Indicia

Whether the Applicant has a separate place of work and or advertises his or her services to the world at large.

[59] While there was no contractual prohibition to him doing so, the Applicant did not have a separate place of work or advertise his services to the world at large. This is supportive of an employment relationship.

Whether the Applicant provides and maintains significant tools or equipment.

[60] The Applicant was not required to provide or maintain any surgical/medical instruments or equipment. This remained the sole responsibility of the Respondent which is normal in the medical/dental field for reasons of hygiene/infection control. Due to the unique nature of the medical/dental field I regard this factor as being neutral.

Whether the work can be delegated or subcontracted.

[61] While the contract allows for both delegation and assignment with Respondent approval, Ms. White conceded that she was unaware of where that had actually occurred within the Respondent’s business. The lack of delegation or assignment is unsurprising having regard to the nature of the patient/practitioner relationship present within the field of dental services. As with medical practitioners, it is likely to be the case for many patients that they build up a rapport and confidence with a particular dentist and may be reluctant to see a ‘delegate’ or ‘sub-contractor’ even if approved by the Respondent.

[62] It is the nature of the personalised and skilled service provided by a dentist that is likely to create ‘repeat business’ and allow them to build up their practice. The notion of delegation or sub-contracting would seem somewhat anathema to that. I would regard that while contractually able to delegate work or assign the agreement, the practical likelihood of either occurring is very low. This is indicative of an employment relationship however, having regard to the unique feature of patient/practitioner relationship I attribute this factor limited weight.

Whether the Respondent has the right to suspend or dismiss the person engaged.

[63] Clause 8(b) of the 2016 Agreement deals with termination of the contract. It (the 2016 Agreement) was able to be terminated without notice for reasons including serious misconduct, loss of registration, breach of the agreement terms and engaging in an act that adversely impacts the Respondent’s reputation or the dental practice. Clause 8(a) also allows for termination of the contract for any reason with 20 business days’ notice by either party.

[64] The contractual right to terminate the Applicant’s services without notice for reasons of wilful misconduct and for any reason with notice are features that are routinely present in a contract of employment. It is also the case that contracts for services normally contain termination of contract provisions based on contractual breach, misconduct of the service provider and with notice for other reasons (i.e. without cause). The right to terminate the contract in the 2016 Agreement is in my view not determinative of either an employment or independent contractor relationship. I regard it as a neutral factor.

Whether income tax is deducted from remuneration paid to the Applicant.

[65] The Respondent made no deductions for income tax or superannuation contributions on the remuneration paid to the Applicant. The Applicant was responsible for the payment of his own tax which included quarterly BAS statement preparation.

[66] The Full Bench in Gupta stated that the per-delivery basis of payment in that case, the absence of leave or superannuation benefits and Ms Gupta’s responsibility for her own tax obligations did not point to her necessarily being an independent contractor. 33 By contrast, Jessup J dealt with this issue in Tattsbet Limited v Morrow34 (Tattsbet) and restated the historical emphasis that was placed on the absence of PAYG arrangements. To that he added that it was no longer “just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor……that point quite strongly against the relationship being characterised in this way.”35

[67] What I draw from the above authorities is that while the taxation arrangements put in place by the parties remains relevant to determination of employment or contractor status it may not be decisive, and it may also be necessary to consider the presence of GST obligations on the part of the “putative contractor”. In the present case, PAYG deductions are not made and GST collections by the Applicant were present. These features are supportive of an independent contracting relationship.

Whether the Applicant is remunerated by periodic wage or salary or by reference to completion of tasks.

[68] The Applicant is not remunerated by way of a periodic wage or salary. He derived his income from the Respondent on the basis of an agreed percentage (Dental Draw) of the net income he generated. Payment was made monthly on the basis of a prepared Invoice and fluctuated significantly according to income generated in a particular month. There was no minimum guaranteed payment and if he did not work in a particular month, he would receive no income for that period.

[69] The Applicant’s remuneration was directly linked to his income generation for the City Smiles practice of which he received 40% of the net income he generated. This form of remuneration is strongly supportive of an independent contracting relationship.

Whether the Applicant is provided with paid holidays or sick leave.

[70] The Applicant was not entitled to be paid annual leave or any other form of paid leave. He also exercised control over when he took leave. These features are supportive of his status being that of an independent contractor.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

[71] The Applicant works in the highly skilled profession of a dentist which requires extensive training and demands specialised skills. This supports a finding of an independent contractor relationship.

Whether the worker creates goodwill or saleable assets in the course of his or her work.

[72] As a sole practitioner it was not contended by the Respondent that the Applicant was able to generate goodwill and saleable assets over the course of his work. Given the nature of the work undertaken by a sole practitioner it is difficult to imagine how the Applicant could sell his business when any goodwill, if it existed, would be tied to his unique skills and experience. I regard this factor as weighing towards an employment relationship although not strongly.

Whether the worker spends a significant portion of his remuneration on business expenses.

[73] The Applicant does not incur any significant business expenses, with professional development identified by him as the only area of business expense he could think of. That would represent a small percentage of his income. This is more indicative of an employment relationship.

Conclusion on whether the Applicant was an employee

[74] Having considered the various indicia, it is evident that a number of matters are neutral considerations. Some matters point towards an employment relationship including the requirement that the Applicant wear ‘scrubs’ with City Smiles branding, the absence of goodwill generation by the Applicant and the limited practical capacity to delegate the work or assign the contract.

[75] Balanced against those matters pointing towards an employment relationship, there are a significant range of matters that point compellingly to the Applicant being an independent contractor. Most telling of those matters are the;

  • contractual terms indicating an intention that the Applicant was not an employee;
  • right and practical capacity for the Applicant to perform work for others;
  • highly skilled profession that the Applicant is engaged in;
  • Applicant’s control over his hours of work;
  • Applicant’s clinical autonomy in respect of decisions on patient treatment and care; and
  • leave, remuneration structure, insurance and tax arrangements.

[76] I do not consider that when looked at in its totality the relationship between the Applicant and the Respondent contains the essential features that would ordinarily characterise an employment relationship, that being the right of the Respondent to exclusively control when and how work was to be performed by the Applicant. The weight of the matters considered lead me to conclude that the Applicant was not an employee of the Respondent and was in fact carrying on a business of his own.

[77] It necessarily follows from the foregoing that the Applicant was not an employee for the purposes of s.382 of the Act at the time of the termination of his contract with the Respondent. He is therefore not a person protected from unfair dismissal.

Was the Applicant dismissed (s.386(1))?

[78] I have found that the Applicant was not an employee for the reasons set out above and was therefore not a person protected from unfair dismissal. If, however I am wrong in my conclusion on the Applicant’s status, I necessarily turn to consider whether he was dismissed within the meaning of s.386(1) of the Act.

[79] The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli 36 (Tavassoli) extensively considered the legal principles pertaining to s.386(1) of the Act. Noting the two elements it contained, it commenced its consideration of s.386(1)(b) as follows:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

  1. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
  2. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
  • where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
  • where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd;24 Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust”

[80] After considering 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”, the Full Bench in Tavassoli then stated:

“[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) 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

[81] The Applicant was unable to identify which of ss (a) or (b) of s.386(1) was relevant to determining whether he had been dismissed. He states that a series of events had accumulated such that he believed that nothing was going to change in his relationship with Dr Rogelberg and Ms Dukhno. Further, he states that while he made an effort to improve working relationships no effort had been made on their part. This led him to conclude that he had no alternative but to resign.

[82] I discern from the Applicant’s explanation that he seeks to rely on s.386(1)(b), that he resigned because of conduct or a course of conduct engaged in by the Respondent. However, out of an abundance of caution I will firstly consider whether s.386(1)(a) may be relevant.

Was the Applicant dismissed within the meaning of s.386(1)(a)?

[83] It is apparent from Tavassoli that a resignation may fall under the first limb of s.386(1) where the resignation was communicated in the heat of the moment or where the Applicant was in a state of distress and the employer accepted the resignation without subsequently confirming that the employee wished to genuinely resign.

[84] Turning to the facts of the present matter, a complaint was made by Ms Dukhno to Dr Rogelberg on 28 June 2021 regarding the Applicant’s behaviour towards her. When the Applicant was advised by Dr Rogelberg of that complaint, the Applicant made a complaint of his own regarding Ms Dukhno’s behaviour during their exchange that day. Ms White then became involved and sought to discuss the matter with the Applicant. He declined an initially proposed teleconference to discuss the matter, preferring a face to face meeting which was then scheduled for 12 July 2021. It appears from the Applicant’s response that the urgency of the matter was not so great as to require an immediate meeting.

[85] I am satisfied on the evidence of both Ms White and the Applicant that the 12 July 2021 meeting arranged by Ms White was conducted in a calm and professional manner with discussion directed to events of 28 June 2021, communication issues in the workplace and options to move things forward. While Ms White acknowledged that the Applicant felt he hadn’t been heard up to that point regarding workplace issues, the Applicant was calm and personable during the meeting. Following the 12 July 2021 meeting, the Applicant considered the series of events in the workplace and was not confident that the options put forward by Ms White to resolve the relationship issues were likely to change things. He then composed and sent his email resigning from the practice late in the evening of 12 July 2021.

[86] It is apparent that the resignation was not furnished in the heat of the moment. While I accept that the Applicant may have been frustrated at the behaviour that he perceived had been directed towards him by Dr Rogelberg and Ms Dukhno, he had time to consider and respond to the interventions proposed by Ms White which he did in a considered manner. The fact that the Applicant worked out his period of notice up to 6 August 2021, and had subsequent discussions with Ms White regarding other options within the Respondent’s network, supports a conclusion that the resignation was not given in the heat of the moment or in circumstances where the Applicant was in a state of distress. It follows that the resignation could not be said to be a dismissal within the meaning of s.386(1)(a) of the Act.

Was the Applicant dismissed within the meaning of s.386(1)(b)?

[87] Turning now to s.386(1)(b), the Applicant contends that he had been subject to a course of conduct that left him with no choice but to resign. The Applicant says there had been a general deterioration in his treatment since the onset of the Covid pandemic however, he was able to point to only three specific incidents in his evidence, those being;

  • An email exchange with Dr Rogelberg on 10-11 March 2021 following which he made a complaint to Ms Dukhno on 12 March 2021 that he says was rebuffed by Ms Dukhno.
  • An exchange between the Applicant and Ms Dukhno on 28 June 2021 which led to each making a bullying allegation against the other.
  • An alleged false complaint in an email prepared by Alex Rogelberg about the Applicant which the Applicant viewed on 5 July 2021.

[88] The following may be said about the second incident referred to above. The Applicant did not deny there had been an exchange between himself and Ms Dukhno on 28 June 2021 or his contribution to it. It would appear on the limited evidence adduced that both parties may have contributed to the exchange. In these circumstances I am not in a position to draw any conclusion as to whether one party was more culpable in terms of the exchange even though Ms Dukhno was the first to complain in her email to Rogelberg. She was not called to give evidence although I draw no adverse inference from that given the matter is at the jurisdictional objection phase. Taking the Applicant’s evidence at its highest, there was an exchange between the Applicant and Ms Dukhno on 28 June 2021 where both parties appear to have contributed.

[89] Turning to the third incident, all that was in evidence was a photo of a draft email prepared by Alex Rogelberg and apparently addressed to his private email address. Putting aside the fact that the Applicant took a photo of the draft email without Mr Rogelberg’s knowledge or consent, there is no evidence that the email was ultimately sent directly or indirectly to either Dr Rogelberg, Ms Dukhno or any other manager of the Respondent. Even if it was sent it was not raised with the Applicant at any point prior to his departure from the practice on 6 August 2021. In these circumstances I place limited weight on the email even though the Applicant says the email lends support to his belief there was a campaign to undermine him in the practice and was the ‘last straw’. There is simply no evidence that the email (sent or not) was relied on by management of the Respondent in its dealings with the Applicant.

[90] Returning to the first of the three incidents referred to above. It is apparent from a review of the emails exchanged between the Applicant and Dr Rogelberg on 10-11 March 2021 that an issue arose with the scheduling of a patient for an urgent treatment. The decision to book the patient in was made by the Principal Dentist Dr Rogelberg and was booked at a time he anticipated the Applicant would have finished seeing an earlier patient. That booking took longer than expected which then impacted on the Applicant seeing the patient requiring urgent treatment. In responding to the Applicant’s concern over the booking, Dr Rogelberg was critical of the Applicant’s time management and reinforced the practice’s expectation regarding bookings running to schedule as it impacted on nursing staff. Dr Rogelberg also foreshadowed that he would monitor the Applicant’s time management.

[91] Following the above exchange, the Applicant complained to Ms Dukhno on 11 March 2021 in relation to his treatment by Dr Rogelberg and expressed the view that he was being bullied as other contract providers were treated differently in that they were consulted regarding treatment bookings. Mr Dukhno was dismissive of the Applicant’s concern when she responded that “I believe that your patient was managed appropriately and within your working hours.” She also went on to say that “I dismiss your claims of bullying and being singled out.” Ms Dukhno also variously referred to the Applicant’s experience and skills as being recognised, that Dr Rogelberg’s concern over the Applicant’s time management was valid, that moving forward it would be necessary to work together to achieve a harmonious environment and that trust and understanding was necessary to achieve results.

[92] In the absence of evidence from either Dr Rogelberg and Ms Dukhno, it is difficult to escape a conclusion that Dr Rogelberg’s treatment of and response to the Applicant on 11 March 2021 was overbearing in circumstances where the Applicant was an experienced Dentist who had worked at the City Smiles practice for some 15 years. Ms Dukhno’s response in her email of 12 March 2021 while replete with platitudes about working together, establishing trust and creating a harmonious atmosphere was similarly unsympathetic and dismissive of the Applicant’s concern with his treatment by Dr Rogelberg. While Dr Rogelberg’s and Ms Dukhno’s responses may have been based on their accumulated experiences with the Applicant, no evidence of such experience or prior incidents of poor time management was adduced. I consequently accept the Applicant’s evidence as to the events of 10-12 March 2021 and that he genuinely felt aggrieved by his treatment by both Dr Rogelberg and Ms Dukhno.

[93] The Applicant’s concern at his treatment is reinforced by the email he subsequently sent to Ms Dukhno on 16 April 2021 when he indicated he would cease working on Tuesdays as he remained uncomfortable working alongside Dr Rogelberg on Tuesdays and Thursdays as he felt there had been no change in behaviour on Dr Rogelberg’s part. It is also the case that the Applicant started working 1-2 days per week for Dimos Dental in the May-July 2021 period for reasons he says of feeling that he was being pushed out of the practice.

[94] Taking the Applicant’s claim of bullying and mistreatment at its highest, there is evidence of one incident between himself and Dr Rogelberg which, as I have stated above, I am prepared to accept was overbearing and dismissive. There is no evidence of any further incidents between Dr Rogelberg and the Applicant. There was a further exchange between the Applicant and Ms Dukhno on 28 June 2021 of which both parties played a part and then there was the draft email of Alex Rogelberg of which it is uncertain whether it was sent, but in any case, was not acted on by the Respondent if it were sent to practice management. While the Applicant referred to other conduct and his attempts to improve things in the practice, these claims were not particularised and as such, I am unable to place any weight on them. Nor was there any evidence that the Applicant sought to escalate his concerns beyond practice management.

[95] I am unable to conclude that objectively viewed, the Respondent (through City Smiles practice management) engaged in conduct or a course of conduct that left the Applicant no choice but to resign. While I readily accept that the Applicant was dissatisfied with arrangements in the workplace, dissatisfaction is not sufficient. I am unable to identify the action or actions of the Respondent that directly or consequently led to the Applicant’s decision to resign or would have seen the Applicant’s resignation as the probable result. My view is fortified by the discussion between the Applicant and Ms White on 12 July 20211 where Ms White put forward proposals to the Applicant to assist resolve his concerns, that being through mediation between the relevant parties or alternately, sourcing another opportunity for the Applicant in the Respondent’s network of dental practices if that was his preference. The Applicant was presented with genuine options to resolve his concerns but elected to resign for the reasons previously stated above. I am not satisfied that the Applicant had no choice but to resign. He was therefore not dismissed within the meaning of s.386(1)(b).

[96] It follows from the above that the Applicant was not dismissed within the meaning of s.386(1). As a consequence, his application must be dismissed.

Conclusion

[97] I have found that the Applicant was not an employee. I have further found that if I am wrong in that conclusion and that the Applicant was in fact an employee, he was in any case not ‘dismissed’ within the meaning of s.386(1) of the Act. Having made these findings, it is unnecessary for me to deal with the third and fourth grounds of objection raised by the Respondent.

[98] The application for an unfair dismissal remedy by the Applicant must consequently be dismissed. An order giving effect to this decision will be issued in conjunction with the decision.”

Farag v Dental Corporation Pty Ltd (2021) FWC 6290 delivered  8 November 2021 per Masson DP