Hong He v Federation of Ethnic Communities' Councils of Australia
[2023] FWC 1160
•4 JULY 2023
| [2023] FWC 1160 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hong He
v
Federation of Ethnic Communities’ Councils of Australia
(U2023/1220)
| DEPUTY PRESIDENT DEAN | CANBERRA, 4 JULY 2023 |
Application for an unfair dismissal remedy – applicant not unfairly dismissed.
Mr Hong (Michael) He has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with Federation of Ethnic Communities’ Councils of Australia (FECCA).
Mr He claimed he was forced to resign after accidentally finding out that the FECCA CEO was about to dismiss him.
FECCA say that “after a confusing series of events”, Mr He’s employment was terminated effective 14 February 2023, and he was paid until 17 February 2023.
The application was heard by video on 9 and 10 May 2023. At the hearing, Mr He appeared on his own behalf and Mr D Yesildag of BAL Lawyers appeared with permission for FECCA. Evidence was given by Mr He and his wife Ms S Zhao, both with the assistance of an interpreter. FECCA called evidence from Mr Mohammad Al-Khafaji (CEO), Ms Christina Ng (Office Manager) and Ms Mary Ann Geronimo (Senior Policy Officer).
For the reasons set out below, I find that Mr He’s dismissal was not unfair and accordingly his application is dismissed.
Background
Mr He was employed from around September 2020 by FECCA as a Policy and Project Officer.
On 1 February 2023 Mr He accessed the calendar of the CEO, Mr Al-Khafaji, and opened a calendar entry titled “appointment with M”. Upon reading the details of the calendar entry, Mr He formed the view that Mr Al-Khafaji intended to dismiss him.
The notes in the calendar entry were as follows:
“Defensive when people give him feedback
Colleagues are fed up with him
Performance is unsatisfactory
Presentation and communication skills are below acceptable
People are feeling unsafe (external issues) and reputations”
Mr He then sent an email to Mr Al-Khafaji in the following terms:
“Dear Mo
May I call you this afternoon at your convenience? I saw five negative comments at your calendar about me which is public to every FECCA staff. I am much concerned about them.
Are you going to terminate my employment? I have a different feedback to your comments but I respect your decision.
I also had a communication with Mary Ann.
I accept your decision but please do not terminate me immediately as I have kids and family. I already obtained some job offers elsewhere. I just need a few weeks to arrange the hand-over.
Thank you for your consideration.
Yours,
Michael”
A telephone conversation between Mr He and Mr Al-Khafaji occurred on 2 February 2023 which lasted about 40 minutes (the 2 February meeting). Ms Ng was with Mr Al-Khafaji at the time and heard what was said by both parties. Mr He had his wife with him and, unbeknown to Mr Al-Khafaji, recorded the telephone conversation.
During the 2 February meeting Mr He agreed he had accessed the CEO’s calendar while Mr He was on carers leave and thought it was reasonable to do so because other staff had access to the calendar.
Also during this meeting Mr He was advised there were complaints that had been made about his conduct in the workplace. Mr He was given two options during the meeting, the first being that Mr He could resign and the second being that Mr Al-Khafaji would investigate the allegations that had been made about Mr He.
During the 2 February meeting, Mr He sent an email to Mr Al-Khafaji which said:
“Hello Boss
I have an offer and my last day in FECCA is 3 March 2023 inclusive.
Thank you
Michael”
Mr He sent another email a short time later, saying:
“Hello Mohammad
Can I ask you to still grant my access to my FECCA email address until 3 March 2023?
My job offers came from this email address.
Thank you.
Michael
Shortly after the conclusion of the 2 February meeting, Mr Al-Khafaji replied to Mr He’s emails, saying:
“Hi Michael,
I have thought about our conversation and made a risk assessment. I believe it is unsafe and unacceptable for you to be working for FECCA for the duration of your notice of 4 weeks. We will instead pay you until then and do not require you to do anything, that includes coming to the office.
Please mail your pass and cabcharge to [address provided] and your IT access has been revoked.
We will forward you any personal emails if we get them.
Meanwhile, please liaise with Christina if you need to collect any of your personal items.
If you want to chat about anything, I’m happy to chat.
Regards,
Mohammad Al-Khafaji"
Mr He replied 10 minutes later in the following terms:
“Thank you so much boss!! And thank you for paying me until 5 March 2023 as per your advice, plus my final pay.
Please forward my future employment related emails to my this (sic) email address:
[email address provided]
Please destroy/bin all my personal belongings.
I will follow your instructions and email the pass and cabcharge card shortly.
Yours,
Michael”
A further email was sent by Mr He to Mr Al-Khafaji a few minutes later in which Mr He provided his responses to the items listed on the calendar entry. He also made complaints about the Office Manager. Mr Al-Khafaji replied later that day, thanking Mr He for his email and stating that Mr He had resigned of his own accord earlier that day and noted that Mr He had thanked Mr Al-Khafaji for agreeing to pay 4 weeks’ pay. Mr Al-Kafaji's email went on to state that:
“the email below is full of accusations against FECCA and the OM. If you wish to still continue with the initial plan of 4 weeks pay, you must agree that no further action will be taken by you if you later change your mind. If you don’t agree to this, please let me know so we start a different process”.
Mr He replied 10 minutes later, indicating he had never accepted the allegations made against him, but he wanted to move on and he would not file any applications with the Fair Work Commission or Ombudsman as long as Mr Al-Khafaji fulfilled his promise to pay him until 5 March plus any annual leave entitlements.
On 6 February at 6:12am Mr He sent an email to Mr Al-Khafaji in the following terms:
“Dear Mohammad
I have been reflecting on this matter. I was traumatised after I saw the allegations which is public to everyone (your calendar with all details was open to us since I joined FECCA, which is known to all team members). Some of the comments in the allegations are extremely offensive and discriminatory. I need to clear my name first and foremost. I did not want to leave FECCA with shame and humiliation,
You mentioned multiple complaints about me coming forward to you. However my direct supervisors are not aware of these and I am always following their instructions. I rarely have personal interactions with other team so I felt baffled when one allegation said colleagues are fed up with me.
I recently did have a discussion on my fieldtrips to Brisbane and Adelaide with the team, in my understanding the discussion was professional. I took all the input from the team. I did not know why they went to you directly to make complaints against me. I did have some unpleasant experience working with the Office Manager which I explained to you at the bottom of this email train.
It is difficult for me to ask you change your mind if you already determined to terminate my employment. But I ask your empathy and non-judgmental leadership in allowing me to clear my name. I did not agree to these allegations.
I understand you do not wish you destroy my career. I ask for a procedural fairness that you allow me to respond to these allegations with a proper investigation.
In my understanding I work very well with Hellen and Anushe. I followed all their instructions from Mary Ann and Daniel as well.
At this stage I am with the Option one that I am resigning effectively 3 March 2023. Before we go further, may I request to have a chat with you as you advised before? May I have a chat with you today at your available time? Thank you.
Yours,
Michael”
Mr He and Mr Al-Khafaji did have a telephone conversation on 6 February. This was recorded by Mr He. Having listened to part of the recording during the hearing of this application, it is clear and I find that Mr Al-Khafaji specifically asked Mr He whether he was recording the conversation and stated that he did not give permission for the conversation to be recorded. It is also clear from the recording that Mr He said he was not recording the conversation, when in fact he was.
After this conversation, Mr He sent a further email in the following terms:
“Dear Mohammad and Mary Ann
Thank you Mohammad for calling me today.
It was not my intent to look at Mohammad’s calendar for my matter. I looked at Mohammad’s calendar over the last 2.5 years in full details, as I was told I am allowed to. I was told doing this can better to support you and be prepared to assist your instructions. It simply was an coincidence that I saw those accusations about me and I was much fearful and concerned as those accusations are grossly discriminatory (colleagues are fed up with me) and extremely inappropriate (my external issues about civil disputes made staff feel unsafe). I explained to Mary Ann and Mohammad many times that my civil disputes have no inference upon my employment. To continue making that accusation is definitely a discrimination. Its aim is to get rid of me.
I know you were upset about this. I have apologised to you on this. I apologise to you again.
For my performance, I can see with encouragement from Mary Ann and Daniel, I am improving on daily basis. Last week I submitted various reports, strategic plans, session guides and newsletter. All feedback from the team, Mary Ann and Daniel have been actioned. I have passed the probationary period on a continuous employment basis. I also single-handedly work on data, Census and support you whenever you need.
If you think my performance is not satisfactory, please at least let me know and give me an opportunity to rectify it.
I can declare to you, Mary Ann and Daniel: Over the last 2.5 years, I never refused to follow your instructions, I never delayed the tasks you asked me to do, I never declined to improve my performance. I have all the materials to demonstrate I am working as hard as I am able to. It is extremely unfair and harsh to end my career at FECCA this way. I simply cannot accept this. And this is not about money.
I am seeking a fair procedure to allow me to continue my employment and I need a reasonable time to find a job to feed my family (4 weeks is definitely not enough). Please do not push me. Please respect my privacy and do not copy this letter onto the Office Manager at this stage.
For the safety issue you raised, please note I never harmed or will harm any persons in my life or did anything that constitutes violence. If you or FECCA staff feel unsafe, I cannot change people’s feelings.
Due to my mental health conditions, I will take this week as personal leave. I need more time to think of this.
Yours,
Michael”
This was followed by a further email at 6:13pm in which Mr He confirmed Mr Al-Khafaji had agreed to be his referee and that he would be contacted by three agencies to provide a reference on his behalf.
At 10:30pm Mr He sent another email to Mr Al-Khafaji with the title of ‘Resignation’, which said:
“Hello Mohammad,
As I mentioned and you agreed my last day in FECCA is 3 March 2023 as I am approaching to the destination that I will have the new job; and you kindly approved to pay me till that day, plus accrued annual leave entitlement.
Additionally you kindly agreed to write me good reference for my new job.
This way you are truly helping me with transition. And this way my career progression can be achieved in a most idealistic way.
I wish you can be proud of me as you said over the phone, that I am securing a job very soon, especially with your good reference check.
I have no intent to denigrate you and I am focusing on seeking new job opportunity to move on. I already made 20 job applications so far.
Michael”
Mr Al-Khafaji sent a letter and deed of agreement to Mr He on 6 February, which was not put into evidence by either party. Based on what the parties said during the hearing, it seems FECCA asked Mr He to sign a deed confirming he would not take any action against FECCA in exchange for the additional two weeks’ pay that had been offered.
On 14 February Mr Al-Khafaji sent a follow up email referencing the letter and deed of agreement which had been sent the previous week and noting that Mr He had not replied. The email stated that “this is a final email to follow up and offer you last chance to sign the agreement. If you don’t wish to sign the agreement, we will process your final pay this week for 2 weeks and your annual leave entitlements as per your contract”.
Mr He replied about 15 minutes later saying:
“Hi Mohammad
I refused to sign the agreement.
If you do not honour the 4 weeks pay as we discussed, I will seek legal actions.
You forced me to resign and immediacy revoked my office access.
You have no legal basis to do this after I sought legal advice from Fair Work Commission
Michael”
Mr He was then paid until 17 February 2023, providing for a two-week notice period.
The case for Mr He
In Mr He’s evidence in chief he said he was angry, terrified and disgusted about being forced to resign. He said at the time he wanted to kill Mr Al-Khafaji but “I changed my mind because that’s not a legal thing to do”.
Mr He submitted that while he was given two options during the 2 February meeting, those being to resign or to be subject to an investigation process, he was in fact forced to resign.
Mr He said that Mr Al-Khafaji threatened that if he did not resign, Mr Al-Khafaji would destroy his career, but if he resigned then Mr Al-Khafaji would give him a good reference and his employment record would be ‘clear’.
Mr He said he was concerned for his safety and that if he did not do what Mr Al-Khafaji asked then he may not receive the four weeks’ pay that had been offered to him.
Mr He said he asked Mr Al-Khafaji for another opportunity to continue working but that was refused. He also said that he should have left FECCA earlier because the organization was ‘toxic’.
Mr He’s wife gave evidence. She said Mr He had his phone on speaker and because she thought Mr Al-Khafaji sounded “quite abusive and aggressive", she decided she should record the conversation. She said she heard Mr Al-Khafaji say words to the effect that if Mr He did not resign, it would have a very negative impact for his future career and Mr Al-Khafaji would not provide any support for the job applications Mr He had already been making for other employment.
Mr He’s wife confirmed she recorded the 2 February meeting.
Mr He’s wife also gave evidence as to the conversation that took place between Mr He and Mr Al-Khafaji on 6 February. She said Mr Al-Khafaji told Mr He that he could not give him another chance because Mr He’s resignation had already been announced to all stakeholders.
During the hearing Mr He sought to rely on the recording made of the conversations with the CEO on 2 and 6 February 2023, along with a written transcript of the recordings. I did not allow the tender of the recordings or the transcript because I was satisfied that the recording had not been made in accordance with the Listening Devices Act 1992. This is because it is clear from the evidence that not only did Mr Al-Khafaji specifically tell Mr He he was not to record the conversation, as witnessed by Ms Ng in the case of the 2 February meeting, Mr He was evasive when questioned about his knowledge of how the recordings came into existence and whether he disclosed to Mr Al-Khafaji that his wife was recording the 2 February meeting. Further, the audio recording of 6 February clearly demonstrates Mr Al-Khafaji explicitly stated that he did not consent to the conversation being recorded by Mr He.
The case for FECCA
FECCA submitted that Mr He’s dismissal was not unfair. In closing submissions, FECCA confirmed it was no longer relying on Mr He’s resignation to ground a jurisdictional objection (that being he was not dismissed), but submitted it was still a relevant consideration as to whether the dismissal was unfair.
In this regard FECCA submitted that Mr He tendered his resignation via email of his own accord on 2 February, and this was an unambiguous resignation, in that he stated he had found a ‘new job’. FECCA submitted the evidence also supported a finding that Mr He resigned to avoid Mr Al-Khafaji investigating complaints about his conduct and performance. FECCA also submitted that Mr He confirmed his resignation in emails subsequent to his 2 February resignation email and he took no steps to withdraw his resignation at any relevant time prior to the termination of his employment.
While FECCA confirmed it was a small business employer, it did not object to the application on this basis in its Form F3, and its submissions as to whether it relied on being a small business employer were unclear.
The Act requires that the Commission must decide certain matters before considering the merits of an application for unfair dismissal remedy. Relevantly, it includes whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
FECCA is a small business employer for the purposes of an unfair dismissal claim and the Code therefore applies to Mr He’s dismissal. Although FECCA’s submissions were unclear, the question of whether a dismissal is consistent with the Code is a matter that the Commission must consider.[1]
In this case, there is insufficient evidence to support a finding that Mr He’s dismissal was consistent with the Code. Accordingly, I need to determine whether the dismissal was unfair within the meaning of the Act.
Findings
I have already found that:
a. The recordings of the conversations on 2 and 6 February were not consistent with the requirements of the Listening Devices Act 1992.
b. Mr He was directly asked by Mr Al-Khafaji whether he was recording the 6 February conversation and denied he was doing so, which having heard the recording, was blatantly false.
c. There is insufficient evidence to find that the dismissal was consistent with the Code.
To the extent it is required, I am also satisfied and find that the resignation given by Mr He was not forced. I am satisfied he decided that he did not want to participate in an investigation, and there is no dispute he was already looking for alternative employment well before 1 February 2023.
Consideration
It is unclear as to why FECCA did not rely on Mr He’s resignation, however given FECCA has said it dismissed Mr He, I now turn to whether the dismissal was unfair within the meaning of the Act.
There is no dispute and I am satisfied that Mr He is a person protected from unfair dismissal by virtue of s.382 of the Act.
A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
I accept that FECCA say Mr He was dismissed, and his dismissal was not a case of genuine redundancy. I have also found that Mr He’s dismissal was not consistent with the Code. Accordingly, I need to determine whether the dismissal was harsh, unjust or unreasonable.
Section 387 of the Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[2] as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[3] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[6] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[7]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
FECCA submitted that there was a valid reason to dismiss Mr He on the basis that he engaged in serious misconduct by covertly recording two conversations with Mr Al-Khafaji without his consent. In this regard it submitted the evidence supports a finding that Mr He was aware his wife was recording the 2 February meeting but never notified Mr Al-Khafaji. Further, on 6 February Mr He recorded the conversation with Mr Al-Khafaji notwithstanding having been directly asked by Mr Al-Khafaji whether he was recording the conversation and denying he was doing so, and having been explicitly told not to record the conversation. FECCA submitted that this amounted to a refusal to comply with a lawful and reasonable direction and constituted serious misconduct.
I accept the submissions of FECCA that Mr He’s conduct in covertly recording the 6 February conversation, having explicitly been told not to do so, and denying that he was doing so, is a valid reason for his dismissal, notwithstanding this only came to light as a result of these proceedings. In doing so, Mr He’s actions were contrary to his duty of good faith and fidelity, and undermined the trust and confidence required in the employment relationship. I find his conduct is a valid reason for dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Mr He was not notified of the reason for his dismissal, nor was he given the opportunity to respond, because the valid reason did not come to light until after his employment had ended.
Unreasonable refusal by the employer to allow a support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[8]
There is no evidence to suggest that Mr He was refused a support person at any stage.
Warnings regarding unsatisfactory performance - s.387(e)
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
FECCA is a small employer with no dedicated human resource management expertise.
I am satisfied that its size and lack of dedicated human resource expertise impacted on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
I do not consider there are other relevant matters that have not already been considered.
Conclusion
Having considered all the matters the Commission is required to take into account, and as a result of the findings that have been made, I am satisfied and find that Mr He’s dismissal was not unfair. Accordingly, this application must be dismissed.
DEPUTY PRESIDENT
Appearances:
H He on his own behalf.
Dogu Yesildag of BAL Lawyers for Federation of Ethnic Communities’ Councils of Australia (FECCA).
Hearing details:
2023.
By Video:
May 10.
[1] See New England and Western Tenants Advice and Advocacy Service Inc v Doherty[2013] FWCFB 9206.
[2] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[6] Edwards v Justice Giudice [1999] FCA 1836, [7].
[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[8] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
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