Maxeem Georges v MCoBeauty Pty Ltd
[2023] FWC 2324
•11 SEPTEMBER 2023
| [2023] FWC 2324 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Maxeem Georges
v
MCoBeauty Pty Ltd
(C2023/3395)
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed from his employment – forced resignation – application dismissed. Application to deal with contraventions involving dismissal
Mr Georges commenced employment with MCoBeauty Pty Ltd on 22 November 2021. Mr Georges held the position of Finance and Technology Manager. On 22 March 2023 Mr Georges received a formal written warning in relation to inappropriate comments he made about the Head of Supply Chain and Logistics in ‘chat’ exchanges on Microsoft Teams with another colleague.
Immediately after receiving the written warning Mr Georges went on stress leave, made a workers compensation claim and eventually resigned his employment on 5 June 2023 without ever returning to work.
Mr Georges has a number of concerns and complaints about his employment and the conduct of other managers. He did not make any formal complaints about these matters to his employer. Instead he engaged a solicitor who specialises in employment law matters and his solicitor corresponded with MCoBeauty’s solicitor on a without prejudice basis.
On 1 June 2023 MCoBeauty’s solicitor sent an open letter to Mr Georges’ solicitor encouraging Mr Georges to raise a formal complaint through the complaints procedure. Instead of doing so, Mr Georges resigned his employment in a letter to the CEO dated 6 June 2023. Mr Georges’ resignation letter is highly critical of MCoBeauty’s personnel.
On 12 June 2023 Mr Georges made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Georges claims that he was dismissed from his employment and that the dismissal contravened the general protection provisions of the Act.
MCoBeauty maintains that Mr Georges resigned his employment and was not ever dismissed.
For the reasons that follow I find that Mr Georges was not dismissed and his general protections claim cannot continue.
The Commission’s Jurisdiction
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine’s School [2016] FCA 790 at [3]).
The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (Milford) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
(a)The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).
(b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).
(c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
(d)that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).
(e)the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
(f)in so determining the limits of its authority the FWC may determination matters of fact (at [71]).
(g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
(h)the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).
“A person who has been dismissed”
Mr Georges only has capacity to make a claim if he is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:
“386 Meaning of dismissed
(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) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”
In Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 at 268-9, [2017] FWCFB 3941 at [47]-[48], the Full Bench summarised the relevant tests under s.386 as follows:
“[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.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”
The Evidence
It is not necessary to canvas in detail all of the events and incidents of Mr Georges’ employment. Shortly stated, Mr Georges was unhappy with treatment he said he received from other managers. He said MCoBeauty applied double standards and acted unethically and that he suffered discrimination, inappropriate comments and the like. During his employment Mr Georges raised concerns informally about some of these matters but did not ever make a formal complaint.
One episode in the employment that will become relevant later is the arrangements made to allow Mr Georges to work from home on some days. In December 2022 MCoBeauty allowed Mr Georges to work from home two days per week. A new written contract of employment was issued at this time and Mr Georges maintains that the work from home arrangements were a contractual term that could not be changed without consent.
On 21 March 2023 the Head of Supply Chain and Logistics, Ms Smith, saw inappropriate comments about herself on an open computer screen of another employee. The comments were in a Microsoft Teams chat between Mr Georges and a colleague. The comments were to the effect that Ms Smith should be sacked, was annoying and was micromanaging, and other negative comments about other managers. Ms Smith made a formal complaint and her complaint was investigated.
Later that day Mr Georges was called to a meeting with his direct manager, Mr Stuart Sher (Head of Finance), and Ms Ush Dhanak (People and Culture Manager). Ms Dhanak said the intention of the meeting was to warn Mr Georges and his colleague about their behaviour.
Ms Dhanak and Mr Sher thought that Mr Georges’ response at the meeting were problematic. Mr Georges was said to have been “extremely loud, shouting and leaning forwards in his chair in a way which was overpowering.” Straight after the meeting Mr Georges left the premises and there is disagreement as to whether he had approval to leave.
The next day, 22 March 2023, Mr Georges received a written warning about the inappropriate Teams messages, his conduct at the meeting with Ms Dhanak and Mr Sher and leaving work following the meeting without discussion with his manager. As it happens, both Mr Sher and Ms Dhanak sent formal warnings to Mr Georges by email in relation to the same conduct.
On 23 March 2023 Mr Sher sent an email to Mr Georges advising that MCoBeauty had reassessed the working from home arrangements and that he was required to attend the office five days per week from 3 April 2023.
On 23 March 2023 Mr Georges commenced a period of personal/stress leave. Late in the evening on 23 March 2023 Mr Georges sent an email advising that he will be off sick for two weeks.
The next morning MCoBeauty cut Mr Georges’ access to its IT systems. Ms Dhanak explained in her evidence that:
“It is our standard policy that when we receive a doctor's certificate for an extended period of sick leave we cut off an employee's access. This protects MCoBeauty by ensuring that employees do not feel like they have to work and that they are able to rest. We also do it to protect our intellectual property and confidential information. We would not do this for a minor illness eg a one-day absence, but we understood Mr Georges to be alleging he had a psychological injury caused by work. In the last 6 months, we have similarly cut off access for 2 other staff who have taken leave relating to mental health conditions.”
On 3 April 2023 MCoBeauty retrieved its laptop from Mr Georges. MCoBeauty said this was necessary because they were about to upgrade their technology and office fitout and did not want to purchase a new laptop for the new employee.
Mr Georges disputes Ms Dhanak’s explanation for cutting off his remote access.
Mr Georges did not again return to work before his employment ended on 6 June 2023. In May and June 2023 Mr Georges engaged an employment lawyer. Mr Georges’ lawyer and MCoBeauty’s lawyers exchanged without prejudice correspondence that was not tendered in evidence because MCoBeauty maintained its privilege.
However, on 1 June 2023 MCoBeauty’s solicitors sent an open letter to Mr Georges’ solicitor and relied on this open letter as evidence. The open letter included the following:
“Our client has requested that we write to you in open correspondence to make it clear that to the extent your client has any complaint in relation to his employment, whether related to the circumstances of his workers compensation claim or otherwise, he is encouraged to raise such a complaint through MCoBeauty's complaint procedure.
Our client's complaint procedure is set out in the Grievance, and Bullying and Harassment Procedures, attached for your convenience.
…
Should your client wish to make a complaint under our clients Grievance, and Bullying and Harassment Procedures, please provide us with a copy of that complaint within 7 days of the date of this letter so it can be promptly reviewed and if appropriate, investigated.”
Mr Georges does not appear to have responded to this letter, at least through his lawyer. Instead Mr Georges sent his letter of resignation to MCoBeauty’s CEO on 5 June 2023.
I am reluctant to publish most of the allegations made by Mr Georges in his resignation letter in this public decision because his allegations have not been tested and the people he criticises have not had any opportunity to respond to the matters raised. This concern is particularly acute in the present matter because Mr Georges was specifically and explicitly invited by MCoBeauty to make a formal complaint about his grievances so that they could be tested, and he declined to do so.
Mr Georges’ written resignation letter included the following:
“… I am writing to formally resign from my position at MCoBeauty, effective on the 3rd of July 2023. However, I would leave it up to you if you would like to wave the notice period. The circumstances surrounding the company's practices and conduct have left me with no other choice but to terminate my contract.
During my time at MCoBeauty, I have witnessed and experienced numerous instances of unethical practices (e.g., hacking into my teams’ chat), double standards, contract breaches, violations of the surveillance act, and discrimination. These issues have deeply shaken my confidence in the company and its commitment to ethical conduct, fairness, respect for its employees, and made me severely sick.
The consistent pattern of bullying and harassment practices within the organization has undermined my trust in the company's leadership and its ability to uphold the values it professes. It is disheartening to see a disregard for ethical guidelines, transparency, and accountability. MCoBeauty has giving me a flexible work arrangement and a pay rise in an employment contract amendment … yet MCoBeauty bullied me, and later breached my contract, for practicing my rights that have been given to me in that same contract.
The company's failure to fulfill its obligations as outlined in the agreement has placed me in a vulnerable position and compromised the mutual trust and understanding upon which the employment relationship is built. These breaches have had a detrimental impact on my overall well- being.
…
Given the gravity of these concerns and the absence of meaningful efforts to rectify these issues, I find it impossible to continue my association with MCoBeauty. Driven by my commitment to my personal values that I am compelled to terminate my contract.”
[Emphasis added]
Consideration
There is no suggestion that Mr Georges resigned in the heat of the moment such that he could not reasonably be understood to be conveying a real intention to resign.
Mr Georges argued that he was forced to resign because of a continuous course of conduct by MCoBeauty that included discrimination on the basis of race and appearance, requiring Mr Georges to work five days per week in the office after previously agreeing to three days in the office, removing his access to MCoBeauty’s IT system and retrieving his laptop. Mr Georges believed that MCoBeauty would not properly or fairly investigate his complaints.
I do not need to make any findings about Mr Georges’ discrimination claims. Mr Georges resigned in June and none of the events he complained about occurred within reasonable proximity to his resignation. In truth the turning point for Mr Georges’ employment was the written warning he received on 23 March 2023. This warning was the beginning of the end of the employment. I reject the submission that the alleged discrimination was conduct by MCoBeauty that forced Mr Georges to resign.
Similarly, whilst I accept that Mr Georges was aggrieved that Mr Sher told him that he would have to return to the office five days per week, and that Mr Georges claims this was a breach of his employment contract, I do not accept the submission that the employer’s decision was conduct that forced Mr Georges to resign. There was no evidence at all of Mr Georges challenging this decision or, for example, indicating that if his privilege of working two days from home was not restored then he would resign his employment. At the time of the resignation Mr Georges was not fit for work in any event so the employer’s decision had no immediate impact on the employment.
There was a dispute in the evidence about whether or not Mr Georges ever asked for his complaints to be investigated. He said he did and Ms Dhanak said he did not. I am inclined to accept Ms Dhanak’s account over Mr Georges’ for the following reasons:
(a)there is evidence of MCoBeauty dealing with other formal complaints raised by other workers, being the complaint by Ms Smith about Mr Georges’ conduct;
(b)MCoBeauty specifically encouraged Mr Georges to make a formal complaint, albeit some weeks later;
(c)understandably there is generally a reluctance for employees to make formal complaints when they know that the employer will investigate the matter. When allegations of hostile, discriminatory, bullying or other kinds of behaviour are raised there is unfortunately a risk that the making of the complaint will make matters worse for the complainant. Complaints and investigations of complaints can bring tension and strains upon relationships in the workplace regardless of the outcome of the investigation. Because of this, most human resources practitioners will be careful to clarify with complainants whether they wish to make a formal complaint or not. It was therefore quite plausible that when Mr Georges raised issues with Ms Dhanak she asked him whether he wanted to make a formal complaint and he did not say yes. Ms Dhanak said in her evidence “On various occasions when Mr Georges informally complained to me about colleagues, I asked if he wanted to make a formal complaint and he always said no.”
Mr Georges was sceptical about how MCoBeauty came to read his Microsoft Teams chat.
MCoBeauty did not lead any evidence from Ms Smith directly as to how she came to learn that Mr Georges was making inappropriate comments about her on Microsoft Teams. Mr Sher’s warning issued by email includes the following:
“Max, I understand you were angry, but after Caroline noticed Teams messages in plain sight on [another employee’s] monitor between her and you, discussing both your managers and work in a negative light, the company was entitled to look back at further conversations which we did. We were also entitled to meet with you and [the other employee] to discuss this. Frankly, your behaviour was childish and unacceptable.”
Mr Georges alleged that MCoBeauty breached its surveillance policy when it looked at the exchanges with Mr Georges’ colleague. Ms Dhanak said that MCoBeauty’s Employee Handbook states that the employer is able to access any data stored on its systems and “reserves the right to monitor and review any data upon the Systems, including your usage and history, on an intermittent basis without notice”. Ms Dhanak conceded in cross-examination that the Handbook was introduced for new employees after she commenced employment in October 2022 and she did not know whether Mr Georges had ever accessed the Handbook. Mr Georges said he had no knowledge of the Handbook.
I do not need to decide whether MCoBeauty breached its own policy, or decide whether MCoBeauty breached workplace surveillance legislation because on any objective view, McoBeauty’s decision to view Mr Georges’ Microsoft Teams chat was not conduct by the employer with the intention of bringing the employment to an end, or conduct that left Mr Georges with no effective or real choice but to resign. McoBeauty received a complaint from Ms Smith and accessed the Teams chat to investigate that complaint – not to bring about the end of Mr Georges’ employment.
Mr Georges disputes Ms Dhanak’s explanation for cutting off his remote access and retrieving his laptop. Mr Georges believed that these actions were an indication that his employment was terminal.
MCoBeauty’s decision to cut Mr Georges’ IT access may or may not have been heavy-handed. Mr Georges was the Finance and Technology Manager and the warning issued to him related to inappropriate use of technology. I do not find that removal of the IT access and laptop was conduct by the employer with the intention of bringing the employment to an end, or conduct that left Mr Georges with no effective or real choice but to resign.
Mr Georges said that when he decided to resign he did not believe that MCoBeauty would properly investigate his complaint. One basis for this belief, he said, was his view that Ms Dhanak improperly interfered with the investigation into his workers compensation claim.
Mr Georges relied on a witness statement from Ms Lusha Zhang. Ms Zhang was the appointed investigator by Wise Group in relation to Mr Georges’ workers compensation claim. Ms Zhang was not required for cross-examination. Ms Zhang said that she asked to speak to the other employee in the Microsoft Teams chat but was told by Ms Dhanak that the colleague was sick and not working. Ms Dhanak offered to organise a video conference for another day but Ms Zhang said this did not occur. Ms Dhanak accepts that she told Ms Zhang that the colleague was not at work when Ms Zhang wanted to interview her – but says this was a true statement because the colleague was working from home.
It seems that Ms Zhang was replaced before she completed her investigation. Mr Georges said he spoke separately with the Microsoft Teams colleague and she said that she was not ever interviewed in the workers compensation investigation.
By the time Mr Georges resigned the ground had shifted considerably in relation to MCoBeauty’s proposed investigation of his complaints (separate to the workers compensation investigation). Mr Georges has engaged an employment lawyer and MCoBeauty had also engaged legal representatives. Mr Georges had been away from work for some time, his workers compensation claim had been accepted by the insurer and Mr Georges was receiving weekly benefits.
In terms of his ongoing employment at that point in time, there was no down-side for Mr Georges if he was to make a formal complaint. Despite Mr Georges’ subjective concerns, none of the alleged conduct by MCoBeauty would lead a reasonable observer to conclude that MCoBeauty would not ever have conducted a proper investigation.
I do not know the content of the without prejudice correspondence between the lawyers and therefore do not know what claims and/or complaints Mr Georges raised with MCoBeauty through his solicitor or the responses he received.
What is clear from the open letter sent on 1 June 2023 is that MCoBeauty was not able to resolve Mr Georges’ claims or concerns without properly investigating his complaints.
If Mr Georges had taken up MCoBeauty’s offer and made a formal complaint, MCoBeauty would have been able to investigate and test Mr Georges’ allegations.
My inquiry is necessarily directed to the conduct of the employer. In this matter I do not find that the employer engaged in any conduct with the intention of forcing Mr Georges to resign, nor any conduct that left Mr Georges with no reasonable option but to resign.
The immediate and obvious option available to Mr Georges was to remain in employment, in his case on weekly workers compensation benefits, and to make a formal complaint as encouraged by MCoBeauty.
For his own reasons Mr Georges decided to resign and litigate instead.
For these reasons I find that Mr Georges was not dismissed from his employment and therefore I will make an order dismissing Mr Georges’ application accordingly (PR766108).
DEPUTY PRESIDENT
Appearances:
Mr M Georges, Applicant
Mr J Monroe of K&L Gates instructed by Ms U Dhanak for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
July 27, August 7.
Printed by authority of the Commonwealth Government Printer
<PR766107>
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