Applicant claimed she was forced to resign because she was left without supervision, system access and means to perform her duties
The Fair Work Commission (FWC) examined whether a provisional psychologist was dismissed after she resigned, claiming she was forced to do so because she was left without supervision, without access to the employer's IT systems and without the means to perform her professional duties.
The employer is a small health practice that provides telehealth psychology and occupational therapy services to clients across Australia via telehealth. The employer raised a jurisdictional objection on the ground that the applicant resigned and was therefore not dismissed within the meaning of the Act.
The applicant was employed on a part time basis as a provisional psychologist from March until she resigned in mid-September following a period of sick leave.
Concerns about worker's LinkedIn profile and secondary employment
As a provisional psychologist, the applicant was required to perform her duties under supervision. For the majority of the applicant's employment, the chief executive was her board-approved primary supervisor as well as her employer.
At the start of the applicant's employment with the employer, she had a supervisor who was not an employee of the employer. The chief executive gave evidence that a number of concerns arose during the applicant's employment regarding her performance and conduct.
In May, the applicant was given permission to undertake secondary employment as she was employed on a part-time basis.
In June, the employer said it became aware that the applicant had updated her LinkedIn profile to refer to herself as a psychologist and had omitted the required designation of provisional, which it said constituted a breach of her obligations under registration rules.
On a date shortly after, a joint supervision session was conducted with the applicant, the chief executive and the secondary supervisor.
Applicant requested change of primary supervisor
The chief executive gave evidence that during this session, she became aware that the applicant had not declared her secondary employment to the registration authority in accordance with its requirements.
The chief executive then informed the applicant that her files would be audited, and two meetings were scheduled to address the employer's performance and conduct concerns; however, the applicant was sick on both occasions. Shortly after, the applicant requested a change of primary supervisor, meaning the chief executive would no longer supervise the applicant, to which the employer agreed.
The employer said it decided to commence a formal performance management process; however, the applicant commenced a period of sick leave and lodged a workers' compensation claim in early August, alleging psychological injury.
The claim was subsequently rejected by the insurer. The applicant then provided medical certificates covering the period from early August to mid-September. She formally resigned the following day.
Applicant made unfair dismissal application before resigning
The applicant had stated in her application that her dismissal date was late August, and this was the date she made this application. The FWC noted at this date she had not resigned and had not been dismissed.
The chief executive gave evidence that this surprised her as she did not know that the applicant did not intend to return to work. Upon receipt of this application, the chief executive emailed the applicant to seek to clarify her intentions, but did not receive a reply until mid-September when the applicant sent two emails stating that she was resigning effective that day.
The applicant submitted that she was forced to resign because she was left without supervision, without access to the employer's IT systems and without the means to perform her professional duties.
She gave evidence that during her employment, there were no performance management processes commenced or warnings issued to her. She said that as both her principal supervisor and employer, the chief executive held dual authority over her, which created a conflict of interest.
Supervisor withdrew without notice
The applicant said that when the chief executive raised concerns about her LinkedIn profile, she immediately corrected it. She also said that the manner in which the chief executive provided feedback to her at that time marked the start of the breakdown of the supervisory relationship.
In terms of the supervisory meeting shortly after, the applicant said the discussion focused on her role with her secondary employer, which she found distressing.
She said she attended professional development training on certain dates but was not paid for this, as had been the case for previous training. This lack of support caused her distress, and she said her doctor certified her as unfit for work for a period.
Shortly after, she contacted the registration authority to seek clarification regarding her obligations, as she felt the supervisory relationship had broken down.
She subsequently arranged for her previous supervisor to resume the role as her primary supervisor.
Employer deactivated email without notice
In early July, the applicant said that the chief executive withdrew her supervision of the applicant without notice, which left her non-compliant through no fault of her own. She then initiated a formal change of supervisor shortly after.
The applicant gave evidence that the chief executive then reviewed her client records and transcripts without the client's consent and then provided subjective commentary in her concluding paperwork for the registration authority without giving the applicant the opportunity to respond.
The applicant said this created a procedurally and psychologically unsafe workplace for her and she was then certified as unfit to work from early August. On a date in late August, the applicant said she filed a stop bullying application with the Commission.
She also made this application shortly after. The applicant said that in late August the employer deactivated her work email account without discussion or notice and revoked access to her client records.
FWC determines supervisory relationship separate from employment
She said she formally resigned in mid-September under duress, and that the employer's conduct caused her significant psychological distress, financial loss, and reputational harm.
The applicant submitted that the withdrawal by the chief executive as her supervisor meant she was unable to lawfully practice as a provisional psychologist without paying for external supervision herself.
She also submitted that the removal of her email and systems access meant she could not perform her role, and this forced her to resign.
The FWC noted the onus was on the applicant to prove that she had no real or effective choice in the circumstances but to resign because of the employer's conduct. The FWC determined that it was satisfied that the end of the supervisory relationship did not end the employment relationship.
The FWC emphasized that the evidence was clear that one relationship was not dependent on the other. The FWC noted the applicant had an external supervisor when she commenced employment with the employer, and could have continued employment with an external supervisor.
FWC determines employer's conduct did not force resignation
The FWC said it did not consider that there was anything inappropriate about the chief executive as the applicant's supervisor reviewing her files.
The Commission explained in fact it would expect that this would be routine given a supervisor is ultimately responsible for signing off the supervisee as competent at the conclusion of the supervisory period.
The FWC observed clearly that the applicant was unhappy about and did not agree with the concerns the employer held about her performance and conduct.
However, the Commission concluded it was reasonable and appropriate for an employer to raise such concerns where they exist, and this did not equate to conduct or a course of conduct designed to force the applicant to resign.
The FWC noted that the removal of the applicant's access to the employer's systems in circumstances where the applicant had already made this application was also not conduct designed to bring about the end of the employment relationship.
It said there was nothing else in the conduct of the employer that, in its view, could be objectively seen to have been undertaken with the intent to end the employment relationship.
The FWC determined these matters, whether considered individually or collectively, could not reasonably be said to give rise to a finding that the employer intended to bring about the end of the applicant's employment, such that she had no real or effective choice but to resign.
It concluded the applicant had not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances.
The FWC emphasized that, as a result, it was not satisfied that she was dismissed within the meaning of the Act and dismissed the application.
