Richards v Le Cordon Bleu Australia Pty Ltd; and Richards v Le Cordon Bleu
[2013] FCCA 566
•18 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICHARDS v LE CORDON BLEU AUSTRALIA PTY LTD and RICHARDS v LE CORDON BLEU | [2013] FCCA 566 |
| Catchwords: CONSUMER PROTECTION – Alleged false and misleading representations inducing the applicant to enter into a contract of employment. |
| Legislation: Competition and Consumer Act 1974 (Cth) |
| Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32 Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276 Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399 |
| Applicant: | DAVID RICHARDS |
| Respondent: | LE CORDON BLEU AUSTRALIA PTY LTD |
| File Number: | SYG 1618 of 2012 |
| Applicant: | DAVID RICHARDS |
| Respondent: | LE CORDON BLEU |
| File Number: | SYG 1849 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 18-20 June 2013 |
| Date of Last Submission: | 17 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D P O'Connor |
| Solicitors for the Applicant: | PCC Lawyers |
| Counsel for the Respondent: | Mr I Colgrave |
| Solicitors for the Respondent: | Kelly & Co |
ORDERS
The application in proceeding SYG1618/2012 filed on 25 July 2012 is dismissed.
The application in proceedings SYG1849/2012 filed on 24 August 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1618 of 2012
| DAVID RICHARDS |
Applicant
And
| LE CORDON BLEU AUSTRALIA PTY LTD |
Respondent
SYG 1849 of 2012
DAVID RICHARDS
Applicant
And
LE CORDON BLEU
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Richards) brings these proceedings against the respondents (Le Cordon Bleu) under the Fair Work Act 2009 (Cth) (Fair Work Act) and under the Competition and Consumer Act 1974 (Cth) (CC Act). I dealt with the two sets of proceedings concurrently in the Fair Work and General Divisions of the Court. The Fair Work claim arises out of the termination of Mr Richards’ employment by Le Cordon Bleu on 10 May 2012. Mr Richards claims that the termination was for prohibited reasons either:
a)relating to his exercise of a workplace right to make a complaint or enquiry in relation to his employment[1]; and
b)because he was temporarily absent from work due to illness or injury[2].
[1] Fair Work Act, s. 341(1)(c)(ii)
[2] Fair Work Act, s. 352
The claim under the CC Act relates to alleged conduct by or on behalf of Le Cordon Bleu that misled Mr Richards when he was recruited, regarding the role that he was to be employed in and that he has thereby suffered loss and damage.
Mr Richards has pursued a career in marketing and recruitment within the higher education field in Australia. Before commencing work with Le Cordon Bleu he was the marketing and communications manager at the National Art School in Sydney. In September 2011 Mr Richards was told about a potential role with Le Cordon Bleu and he expressed interest in it. On 14 October 2011 he was interviewed for the position by Mr Nick Gurner and Mr Rodger Griffiths on behalf of Le Cordon Bleu. Mr Richards claims that misleading representations were made to him at that time about the terms and conditions of the employment.
On 24 October 2011 Le Cordon Bleu sent a letter of offer to Mr Richards which he accepted. Mr Richards commenced employment with Le Cordon Bleu on 12 December 2011.
Relatively early in his employment, Mr Richards became concerned about issues of seniority, reporting lines and responsibilities relating to his position. He was not alone in having those concerns. It is common ground that Le Cordon Bleu was going through a transition to a new business model which brought with it some uncertainty, tension and anxiety in the workplace.
Le Cordon Bleu is an international business operating in excess of 40 cooking schools in some 20 countries. The President of the parent company and chairman of the board of directors is Mr Andre Cointreau. Mr Cointreau visits Australia regularly. He visited Australia in April and May 2012 and on 30 April 2012 he witnessed a marketing presentation by senior managers in Adelaide. Mr Richards was not present at that presentation. Mr Cointreau was extremely dissatisfied with the presentation. He arranged for further presentations by Mr Richards and others on 5 May 2012. Mr Richards was concerned about that request and on 2 May 2012 he sent an email directly to Mr Cointreau setting out his grievances. Mr Cointreau responded by email on 3 May 2012. Mr Cointreau rescheduled Mr Richards’ presentation for 11 May 2012 in Sydney. Mr Cointreau also asked Mr Griffiths to arrange a meeting between him and Mr Richards at his hotel at 7.00pm on 9 May 2012. Mr Richards did not attend the dinner and made no communication prior to the dinner about his inability to attend.
Le Cordon Bleu claims that Mr Cointreau decided to dismiss Mr Richards the following morning because of his failure to attend the dinner or to explain his non attendance.
Mr Richards claims that he was unwell and that he had also sought legal advice prior to the scheduled dinner. He provided a medical certificate and also arranged for his solicitors to send a letter to Le Cordon Bleu, although there is some contention when those documents were received and when key personnel became aware of them.
Pleadings and evidence
Mr Richards, in the Fair Work proceedings, relies upon his application and supporting Form 2 filed on 25 July 2012 and his amended points of claim filed on 19 February 2013.
In the competition and consumer claim proceedings, Mr Richards relies upon his application filed on 24 August 2012 and his points of claim filed on 19 February 2013.
In both proceedings, Mr Richards relies upon his affidavit made on 9 April 2013 (filed 10 April 2013). He was cross-examined on that affidavit.
In the Fair Work proceedings, Le Cordon Bleu relies upon its response filed on 10 August 2012 and its amended points of defence filed on 5 March 2013. In the competition and consumer claim proceedings, Le Cordon Bleu relies upon its points of defence filed on 5 March 2013.
In both proceedings, Le Cordon Bleu relies upon:
a)the affidavit of Mr Cointreau made on 27 May 2013 (filed on 28 May 2013);
b)two affidavits made by Mr Griffiths on 24 May 2013 (filed on 27 May 2013);
c)two affidavits by Mr Gurner made and filed on 28 May 2013;
d)the affidavit of Toby Cremer made on 3 June 2013 (filed 4 June 2013).
All of those witnesses were cross-examined on their affidavits.
Submissions
Both parties made written and oral submissions. Mr Richards contends that Le Cordon Bleu has breached s.340(1)(a)(ii) of the Fair Work Act by terminating his employment in circumstances where he carried out his workplace right under s.341(1)(c)(ii) to make a compliant or inquiry in relation to his employment[3].
[3] see Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341
Adverse action under s.342(1) item 1 of the Fair Work Act includes dismissing an employee. The dismissal took effect on 10 May 2012 via letter.[4]
[4] see annexure “DR34” to Mr Richards’ affidavit
Various complaints and inquiries were made throughout Mr Richards’ employment,[5] culminating in a complaint to Mr Cointreau on 2 May 2013[6].
[5] at [64], [70], [80], [86], [93], [106] of Mr Richards’ affidavit
[6] see annexure “DR26” to Mr Richards’ affidavit
A meeting was set up between Mr Cointreau and Mr Richards to discuss the complaint concerning his employment. However, Mr Richards contends that when he, due to being sick, was unable to attend the meeting[7], he was ultimately terminated, at least in part, due to his workplace complaints and inquiries concerning his employment.
[7] at [106] of Mr Richards’ affidavit
In accordance with s.360 of the Fair Work Act if the applicant carrying out his workplace right to make complaints or inquiries played any part in the respondent’s decision to terminate him, even if it was not the major reason or was only one of a number of reasons, the respondent has taken prohibited action under s.340(1)(a)(ii).
Mr Richards contents that, having established that he was terminated and having made out a prima facie case has shifted the burden of proof to Le Cordon Bleu under s.361(1) of the Fair Work Act[8].
[8] see Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32; Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits [2010] FCA 770 and Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399
Le Cordon Bleu alleges that Mr Cointreau was the decision maker who decided that Mr Richards would be terminated.[9] His reasons for terminating Mr Richards must be objectively determined by the Court.[10]
[9] at [22] of Mr Cointreau’s affidavit
[10] see Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 in particular at [42]-[45] per French CJ and Crennan J
Le Cordon Bleu in its points of defence and in Mr Cointreau’s, Mr Gurner’s and Mr Griffiths’ affidavits has alleged that Mr Richards was dismissed because he did not attend the dinner meeting with Mr Cointreau on 9 May 2012. This assertion is strongly denied by Mr Richards.
Mr Richards submits that this allegation directly contradicts the reasons provided for the termination in Mr Gurner’s email to Mr Richards’ solicitor dated 15 May 2012.[11] It further is not in line with Mr Cointreau’s email sent by Mr Griffiths on 10 May 2012.[12] This is said to bring Le Cordon Bleu’s alleged reasoning for dismissing Mr Richards into severe doubt.
[11] see annexure “DR36” to Mr Richards’ affidavit
[12] see annexure “DR33” to Mr Richards’ affidavit
One of a number of reasons that Mr Richards was dismissed may have been that he did not turn up to the dinner meeting but he contends that this was not the sole reason. It was simply a further exasperation for Mr Cointreau as he had already received complaints and inquiries about Mr Richards’ employment which were an inconvenience for such a busy international business person to deal with. Mr Richards’ exercise of his workplace right is therefore claimed to be one of the reasons that he was dismissed.
In relation to the general protections claim, Le Cordon Bleu does not dispute that Mr Richards was entitled to make a complaint or enquiry in relation to his employment and that he did so in his grievance email to Mr Cointreau on 2 May 2012. However, Le Cordon Bleu contends that it reacted appropriately to that communication and that no adverse action was taken in response to it. It points in particular to the evidence of Mr Cointreau as establishing that he wanted to hear Mr Richards in relation to his grievances and made appropriate arrangements to do so. However, Mr Richards frustrated that effort by not attending the dinner that had been arranged with Mr Cointreau and, further, offended Mr Cointreau by not giving any prior warning of that non attendance. Le Cordon Bleu portrays Mr Richards as a disaffected employee who was actively looking for other jobs since February 2012 who, in effect, turned his back on his employer’s efforts to deal sympathetically with his complaints. Le Cordon Bleu contends that, on the evidence, it is plain that the dismissal of Mr Richards did not occur because he exercised his workplace right to make a complaint or enquiry in relation to his employment but because he failed to attend the dinner at which his issues were to be addressed.
Temporary absence due to illness
Mr Richards submits that Le Cordon Bleu has contravened s.352 of the Fair Work Act by dismissing him because he was temporarily absent from the workplace due to illness.
Mr Richards asserts that he had an illness as prescribed under regulation 3.01 of the Fair Work Regulations 2009 (Cth). He provided the medical certificate at annexure “DR31” to Le Cordon Bleu at 3.51pm on 10 May 2012. While this is outside of the 24 hour period provided in regulation 3.01(2)(a), Mr Richards asserts it falls under regulation 3.01(2)(b).
It is up to the Court to determine whether this delay in providing the medical certificate is reasonable or not in accordance with regulation 3.01(2)(b).[13]
[13] see Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207
Mr Richards’ explanation why the medical certificate was provided outside of the 24 hour time frame is because he had to wait to attend a medical appointment with his doctor which was scheduled for the afternoon of 10 May 2012. In the circumstances, it is therefore said to be reasonable that the medical certificate was provided outside of the 24 hours since the commencement of Mr Richards’ leave.
Mr Richards contends that his temporary absence due to his illness meant he was unable to attend the dinner meeting with Mr Cointreau. Mr Cointreau, by his own account, has asserted that he decided to dismiss Mr Richards because he did not turn up for the meeting.
Mr Richards had, in his complaint to Mr Cointreau, outlined that he had been suffering from stress and had been unwell as a result of the issues with his employment[14]. Mr Richards submits that it should therefore have been a consideration of Mr Cointreau when Mr Richards did not turn up to the meeting, especially given that he had not appeared at work all day and had further not contacted anyone after his initial email[15] that he was “running late”.
[14] see annexure “DR26” to Mr Richards’ affidavit
[15] see annexure “DR30” to Mr Richards’ affidavit
Mr Richards complains that the medical certificate setting out that Mr Richards has been unfit to attend work on 9 May 2012[16] clearly notified Le Cordon Bleu of the reason why he had not attended the dinner meeting, yet despite this he was still dismissed.
[16] see annexure “DR33” to Mr Richards’ affidavit
Mr Gurner’s affidavit[17] sets out that Mr Cointreau instructed him to prepare a termination letter and send it at 12pm on 11 May 2013. Despite this the termination letter was sent at 5.12pm on 10 May 2013 shortly after the medical certificate was received from Mr Richards.
[17] at [13]-[14] and annexure “NG2”
Mr Richards contends that Le Cordon Bleu, by the time it received Mr Richards’ medical certificate, was so incensed by, first the complaints and inquiries regarding his employment, secondly Mr Richards’ failure to attend the dinner, and lastly the medical certificate which deemed him unfit from 9 May 2012 to 16 May 2012 that it decided, for prohibited reasons, to dismiss him forthwith.
Le Cordon Bleu contends that the claim that it took adverse action against Mr Richards because he was temporarily absent from work due to illness or injury must be dismissed because:
a)as a matter of law, due to the circumstances relied upon by Mr Richards not giving rise to the statutory protection – absence from work due to illness does not provide a prohibition related to an employer’s discretion to action a decision to dismiss an employee – the decision to dismiss, to contravene the Fair Work Act, must be because of it;
b)as a matter of law, due to Mr Richards’ breach of s.107 of the Fair Work Act, in that Mr Richards failed to give notice of taking personal leave as soon as practicable, and the fact that the medical certificate related to the absence was provided more than 24 hours after Mr Richards’ absence from work commenced; such that the illness was not of a “kind prescribed by the regulations”; in any event,
c)as a matter of fact, due to the decision to dismiss Mr Richards being made prior to receipt of Mr Richards’ medical certificate and, as such, the temporary absence cannot possibly have been a reason for his dismissal; and
d)as a matter of fact, due to the decision to dismiss Mr Richards being made because of his failure to notify Le Cordon Bleu that he was unable to attend his dinner appointment with Mr Cointreau.
The competition and consumer claim
In relation to the competition and consumer claim, Mr Richards contends that he attended an interview on 14 October 2011 with Mr Gurner and Mr Griffiths which lasted for approximately 45 minutes to an hour.[18]
[18] see annexure “RG1” to Mr Griffiths’ affidavit and annexure “NG1” to Mr Gurner’s affidavit
Mr Richards[19] has set out what he says was discussed at the interview including his experience working at the National Arts School and what sort of role Le Cordon Bleu was hoping to fill. He also details the issues which he says Mr Griffiths in particular outlined including the seniority of the role, the fact it would be a greater challenge than his current role, and would be a managing role.
[19] in his affidavit at [13]-[22]
Neither Mr Gurner nor Mr Griffiths in their affidavits[20] can recall in any great detail the exact issues discussed at the interview. Their evidence is therefore said to be unremarkable.
[20] at [8]-[11] and [12]-[17] respectively
Mr Gurner has conceded that his “interview style is not rigorous”.[21] Further, Mr Griffiths admits[22] that he “do[es] not recall what was said during the interview in precise terms”. However, Mr Richards submits that it cannot be believed that Le Cordon Bleu would have an interview with a potential candidate and not question him on his skills and experience, including details on his duties at his current place of employment. Mr Richards further submits that it cannot be accepted that Le Cordon Bleu would not describe precisely the role they were seeking to fill. Anything else would otherwise be a “mockery of the entire interview process” and a failure on Le Cordon Bleu’s part to undertake due diligence in regard to hiring a new employee.
[21] at [8] of his affidavit
[22] at [12] of his affidavit
Mr Richards submits that Le Cordon Bleu should be taken to have misled him by representing to him that his role would be a senior management position responsible for domestic recruitment which would be able to grow and adjust the marketing team as he saw fit. This is said to have represented to Mr Richards that he would be a senior team member, would have direct reports and a budget, and would be focused primarily on servicing the domestic Australia market. Mr Richards submits that to suggest otherwise goes against the very idea that the role was at all senior which Le Cordon Bleu has endorsed in its points of defence[23] and in Mr Griffiths’ affidavit[24] and in Mr Gurner’s affidavit[25].
[23] at [13]
[24] at [18] and [22]
[25] at [9]
Contract and position description
On 24 October 2011 Mr Richards was sent a letter of offer, employment contract, position description and blank letter of acceptance by Mr Gurner.[26]
[26] at [32] and annexure “DR7” to Mr Richards’ affidavit
Both the contract and the position description are claimed to have carried on the alleged misrepresentations, which were initially outlined in the interview. The position title set out in both the contract and the position description was that of Manager – Domestic Recruitment allegedly indicating that he was being offered a senior management position, which would primarily focus on the domestic Australian market. The very term “manager” is said to denote that Mr Richards would have other staff to manage as well as a budget with which to execute decisions.
Mr Richards also relies upon the position description, which outlined that he would be responsible to “develop, implement and manage marketing strategies for a multi campus international brand”. Further, he would be required to “develop and achieve a sales budget including delegated KPI’s [sic] for relevant staff”.
Le Cordon Bleu has relied upon an email annexed to Mr Richards’ affidavit[27] to try and show that the position would not be primarily focused on domestic recruitment. This email, which suggests that some international travel may be available, and the fact Mr Richards did not respond to it is said by Mr Richards not to alter the position that was originally represented to him as being mainly domestic in nature.
[27] at “DR4” and discussed at [29] of Mr Griffiths’ affidavit
Mr Richards submits that clause 23 of the contract of employment, the entire agreement clause, does not affect the fact that misrepresentations were made to him, which he relied on in accepting the role of Manager – Domestic Recruitment.
Mr Richards submits that, even if the entire agreement clause did have the effect of nullifying the misrepresentations made prior to the contract of employment, which Mr Richards does not concede, the misrepresentations in the contract of employment and the position description alone are enough to enable a finding that Le Cordon Bleu has breached s.31 of the Australian Consumer Law.
Commencement of employment
Mr Richards commenced employment with an induction week at the Adelaide headquarters of Le Cordon Bleu. He claims that during this week it became apparent to him that a number of the representations concerning the role of Manager – Domestic Recruitment were inaccurate.[28]
[28] at [43]-[60] of Mr Richards’ affidavit
As his employment progressed, Mr Richards claims it became even clearer to him that the representations made by Le Cordon Bleu concerning the seniority of his position, having direct reports and budgetary authority, and being domestic in focus were misleading.[29]
[29] at [61]-[71], [72] and [80]-[94] of Mr Richards’ affidavit
Le Cordon Bleu has argued that Mr Richards’ role was changed due to it not being awarded funding assistance (FEE-Help) status it had expected. Mr Richards was, however, required to devote substantial time to preparing marketing material and avenues of advertising for when FEE-Help status was approved.[30]
[30] at [77]-[78] of Mr Richards’ affidavit
In relation to the competition and consumer claim, Le Cordon Bleu disputes the representations attributed to Mr Gurner and Mr Griffiths but contends in any event that there is no evidence of Mr Richards having suffered loss or damage if the representations were made and Mr Richards relied upon them.
Consideration
The general protections claim
As noted above, Mr Richards makes two claims. The first relates to alleged adverse action taken against him either:
a)related to his exercise of a workplace right to make a complaint or enquiry in relation to his employment;[31] and
b)because he was temporarily absent from work due to illness or injury[32].
[31] Fair Work Act, s. 341(1)(c)(ii)
[32] Fair Work Act, s. 352
Why was Mr Richards dismissed?
Mr Richards seeks to draw a causal connection between his workplace complaint and/or his asserted illness and his dismissal. Le Cordon Bleu acknowledges that Mr Richards had made a complaint but asserts that it was being properly considered. Le Cordon Bleu’s case rests upon the proposition that Mr Richards was dismissed because of his failure to meet Mr Cointreau to discuss his problems and his failure to give any advance warning of an inability to attend. Le Cordon Bleu asserts that the alleged illness of Mr Richards played no part in the dismissal and notice of that illness was given only after the dismissal decision was taken.
There was a degree of confusion on the part of Le Cordon Bleu’s witnesses as to when the dismissal decision was taken and some confusion on the evidence about why it was taken.
Mr Cointreau states in his affidavit that Mr Richards was dismissed because of[33]:
[33] at [4] of Mr Cointreau’s affidavit
his failure to give notification that he would not be attending a dinner appointment with me.
Mr Cointreau gives no other reason in his evidence, although he was not well supported by Messrs Griffiths and Gurner.
When Mr Griffiths was challenged under cross-examination as to the reasons for the dismissal of Mr Richards he gave the following evidence[34]:
[34] Transcript (T) 16:21-22
He was terminated because he had no work evidence
When that reason was compared to the sworn evidence of Mr Cointreau the following exchange took place with Mr Griffiths[35]:
If somebody gave sworn testimony that the sole reason that somebody was terminated was because they didn’t show up to dinner, are you telling me that that wouldn’t be true?----Mr Richards asked for a one to one appointment to see Mr Cointreau to present himself, his work and his grievance. He did not attend. He was terminated.
Well, can you answer my question now, and it’s a very specific question about evidence that has been given in this court. If somebody gave sworn evidence that the sole reason that Mr Richards had been dismissed was his failure to attend a dinner meeting with Mr Cointreau, would that be true or false?---False
[35] T 17:4-7
Similarly the evidence of Mr Gurner deviated from that given by Mr Cointreau that the sole reason that Mr Richards was dismissed was his failure to attend the meeting between himself and Mr Richards.
Mr Gurner’s evidence was that he[36]:
[36] at [5] of Mr Gurner’s affidavit in SYG1618/2012
became concerned about what I perceived as a lack of production on behalf of the Applicant.
Mr Gurner also said that Mr Richards and his team had produced nothing in the four months that he had been in the employment of Le Cordon Bleu[37]. However at [16] of his affidavit, Mr Gurner gives the reason for the termination as being solely[38]:
the Applicant’s failure to attend his dinner appointment with Mr Cointreau on 9 May 2012 without giving notice that he could not attend and without providing any explanation by breakfast the next morning.
[37] at annexure “NG1” (page 7) - email from Mr Gurner to Mr Griffiths complaining that the new marketing group had produced “didly squat”. It is worth noting that the same email complains about the dismissal of “senior staff” by a probationary manager. This appears to be contrary to the view propounded by Le Cordon Bleu that Mr Cointreau made all of the hiring and firing decisions for senior staff.
[38] at [16] of Mr Gurner’s affidavit in SYG1618/2012
It is difficult to reconcile that statement with the statement that Mr Gurner makes in the correspondence annexed at “DR36” at page 125 of annexures to the affidavit of Mr Richards. In his letter to Mr Richards’ solicitors, Mr Gurner states that:
As you are already aware, Le Cordon Bleu made arrangements for its President to meet with Mr Richards in Sydney on 9 May 2012 for the purpose of discussing his grievance and how it might be resolved. On 7 May 2012, Mr Richards confirmed he would attend that meeting. While we were not provided with the courtesy of any notice or apology when Mr Richards became unable to attend none of these events formed any part of the reasons for termination, nor have we ever suggested that they did.
As with all new employees, Le Cordon Bleu closely monitored Mr [Richards’] work performance and conduct during his probationary period. Ultimately we formed the view that he does not have the necessary skills to perform the duties of the Manager – Domestic Recruitment position to Le Cordon Bleu’s standards. It was for this reason (and this reason alone) that Le Cordon Bleu decided not to continue Mr [Richards’] employment…[39]” (Emphasis added)
[39] see annexure “DR36” to Mr Richards’ affidavit (page 125)
It is also difficult to reconcile the evidence of Mr Griffiths and Mr Cointreau, who similarly gave sworn evidence that the sole reasons for Mr Richards’ dismissal was his failure to attend his meeting with Cointreau without notice[40].
[40] at [21] of Mr Griffiths’ affidavit in SYG1618/2012; see [4] of Mr Cointreau’s affidavit
The evidence of Mr Gurner and Mr Griffiths was also unhelpful in relation to notice of Mr Richards’ claimed illness.
When Mr Gurner was questioned about why he did not contact Mr Richards after he became aware that he had been unwell and had a medical certificate, Mr Gurner gave evidence to the effect that he did not believe that a migraine would have prevented Mr Richards from calling someone from Le Cordon Bleu to advise of his illness. He also stated that he got migraines and he did not believe that they could be as severe as Mr Richards asserted.
When Mr Gurner was asked how he knew Mr Richards had a migraine he replied that someone had told him. He declined to name who that person was. When it was pointed out to Mr Gurner that the medical certificate did not state that Mr Richards was suffering from a migraine and that there was, in effect, no way he could have known that that was the case unless he had read the evidence of Mr Richards he made no clear answer.
The reality is that Mr Gurner could not have known that Mr Richards was suffering from a migraine at the time of the dismissal.
As noted above, there was also confusion in Le Cordon Bleu’s evidence about when Mr Richards was notified of his termination.
There was significant confusion as to when the email contained at “DR33” was sent to Mr Richards. Mr Cointreau believed it to have been sent at 1:23am on Thursday 10 May 2012. Mr Griffiths, however, when re-examined by counsel for Le Cordon Bleu, retreated from the view that it had been sent that early in the morning and suggested that it may have been sent at 11.00am the same morning. Neither version is particularly helpful in supporting the version of the dismissal that Le Cordon Bleu contends for.
If the email was sent at 1:23am in the morning, and the decision to sack Mr Richards was made at breakfast later that morning, it is unlikely that Mr Richards would have been able to read the email, much less respond to it. It would also seem unlikely that an email was sent at 1:23am inviting a further meeting between Mr Cointreau and Mr Richards and then, subsequently Mr Cointreau decided to dismiss him (because he did not give notice of the non-attendance) some hours later at breakfast.
If the email was sent at 11.00am that would mean Mr Richards was terminated some hours before Le Cordon Bleu sent him the correspondence. The email then goes on to make no reference to his dismissal and still proposes a meeting to discuss his grievances.
It is unlikely that the email was sent at 1:23am in the morning and the decision to terminate Mr Richards then took place at breakfast. It is equally unlikely that Le Cordon Bleu made a decision to terminate Mr Richards at breakfast that morning and then decided not to mention the fact in the subsequent email offering a further meeting to discuss Mr Richards’ grievances.
The email at annexure “DR33” is a contemporaneous document that does not fit with the timing of the termination as given by Le Cordon Bleu.
Mr Richards asserts that Le Cordon Bleu did not make the decision to terminate Mr Richards at breakfast on 10 May 2012. He claims Le Cordon Bleu had made its decision on or about 7 May 2012 when it sought legal advice in response to Mr Richards’ grievance. The illness of Mr Richards is said to have given Le Cordon Bleu a pretext to effect its decision to terminate.
I place limited weight on the evidence of Mr Griffiths and Mr Gurner, who I found to be unimpressive and unreliable witnesses. If either of them had taken the dismissal decision, the analysis in this case would have been simpler. I am satisfied that Mr Richards has established a prima facie case that he was terminated for a prohibited reason. The question to resolve is whether Mr Richards was dismissed because he had made a workplace complaint.
Mr Richards relies upon a number of issues raised with Le Cordon Bleu relating to his employment, culminating in the emailed grievance to Mr Cointreau of 2 May 2012, as providing the foundation for his claim in this regard. These are identified in the Points of Claim and Submissions of Mr Richards.
As has been pointed out by Le Cordon Bleu, the “legal complaint” pleaded at point 17 of the points of claim (being the letter of demand relating to the recruitment representations claim dated 9 May 2012) is not pursued by Mr Richards. It was not referred to in opening, in Mr Richards’ submissions, and no cross-examination of Le Cordon Bleu’s witnesses related to it. The “complaints and inquiries” of Mr Richards relied upon are therefore limited to those made by Mr Richards directly to his employer.
Mr Richards had raised a significant number of workplace issues with Le Cordon Bleu. With respect to the character of the issues raised by Mr Richards (and identified in his submissions as those at [64], [70], [80], [86], [93] and [106] of Mr Richards’ affidavit), Le Cordon Bleu does not concede that the majority of these discussions and communications were, of their nature, complaints or inquiries as characterised by s.341 of the Fair Work Act[41]. This point was not, however, pressed.
[41] Whilst Le Cordon Bleu accepts that Mr Richards is a person “able to make a complaint or inquiry (as an employee) in relation to his employment”, the position of Le Cordon Bleu is that (apart from the grievance email of 2 May) the nature of the communications from Mr Richards were seeking clarification of his role, as opposed to an express exercise of a “workplace right” – ie one that would clearly be understood by an employer to be a complaint or inquiry raising such an issue. This character, though, gives rise to an important consideration for the Court in assessing the employer response to these issues.
The evidence discloses that even had Le Cordon Bleu considered that these issues were all being pursued by Mr Richards as “complaints or inquiries” in the nature of a workplace right, the response of Mr Cointreau was appropriate and sought to address the issues raised. As was stated by Barker J in Ramos v Good Samaritan Industries[42] at [132]:
No doubt, there will be circumstances where, by reason of management issues raised upon a complaint, an employer may consider an employee to be a difficult employee. Steps ultimately taken to respond to such management issues identified through a subsequent complaint or inquiry process are not thereby automatically to be identified as steps taken because the complaint was made, that is to say, to be identified as adverse actions taken because of the workplace right.
[42] [2013] FCA 30
While Mr Griffiths and Mr Gurner appeared to have had their differences with Mr Richards, there is no evidence that Mr Cointreau considered Mr Richards to be a “difficult employee”[43]. Given my negative impression of Messrs Griffiths and Gurner, however, this approach is appropriate with respect to the response (or lack thereof) from Le Cordon Bleu, through its officers, to the issues raised by Mr Richards. At trial, the only adverse action alleged was the dismissal.[44] Did the dismissal arise because of any of these issues, or did they form any part of the reasons for that dismissal? (applying the “reverse onus” from s.361 of the Fair Work Act).
[43] The evidence suggests that Messrs Griffiths and Gurner were not supportive of Mr Richards but they appeared to have a lower opinion of his manager, Mr Charlton. Mr Griffiths considered he could trust Mr Richards by taking him into his confidence regarding Mr Charlton’s poor presentation – see “DR 23” to Mr Richards’ affidavit – email from Mr Griffiths to Mr Richards dated 1 May 2012. Under cross-examination Mr Richards indicated that this email communication indicated to him that Mr Griffiths perception of him was that he was an “effective staff member” – see T, 69:29-30
[44] It is noted that Mr Richards’ points of claim allege further instances of adverse action. However, as pleaded in Le Cordon Bleu’s points of defence, the adverse action which is alleged is the failure to address the matters which the applicant claims to have made complaints or inquiries about. Accordingly, these alleged further grounds of adverse action cannot be said to have been taken because of the complaints or inquiries (given their prior existence). In any event, these aspects of Mr Richards’ claim were not pressed at trial.
It is, therefore, necessary to examine each of the alleged complaints or inquiries identified.
At [64] of his affidavit, Mr Richards refers to a query to his direct superior, Mr Charlton, in relation to the task of setting sales targets for staff, and how this could be done without staff directly reporting to them, and having budgetary authority. There is no direct evidence provided of adverse action by Le Cordon Bleu in response to this.
At [70] Mr Richards makes a similar comment about lack of sales staff reporting to him and authority over spending. Again no evidence is provided relating to any adverse action as a response.
At [80] the same issues are again referred to, along with the assertion that there was confusion amongst staff about Mr Richards’ role. No adverse action is alleged at or around this time.
Properly construed, the evidence from Mr Richards relating to these three “complaints or inquiries” was not to the effect that it was Le Cordon Bleu’s action that was of concern to him, but rather its inaction (through Mr Charlton). It is significant that Mr Charlton had no involvement in the decision to dismiss Mr Richards and was himself dismissed around the same time (see the Gurner and Griffiths affidavits).
Furthermore, in relation to these issues, a significant concern forming part of Mr Richards’ grievance was that he alleged that he had been instructed by Mr Charlton to not contact sales staff directly. Under cross-examination, the picture presented by Mr Richards in his affidavit in this regard was significantly eroded[45]. The position relating to his contact with staff was developing and changing, and there was clearly a significant amount of communication between Mr Richards and sales staff. However, there was clearly resistance to the change management programme that Mr Richards had been engaged to carry out.
[45] see T 20:24-33, 21:18-24, 22:9-14, 24:8-19, and 35-37, particularly 37:7-10
Mr Richards’ fundamental concern, at this time, properly understood (following cross-examination) was that he was unsupported from below or above and that he was not given the management tools necessary to perform his role efficiently.
The evidence of Le Cordon Bleu was to the effect that none of the tasks which Mr Richards has been asked to perform to that time required expenditure authority or direct authority over other employees, and that Mr Richards had never been told that he would have these authorities when interviewed for the position[46].
[46] see Messrs Griffiths’ and Gurner’s affidavits
At [86] of his affidavit, Mr Richards refers to an email to Mr Griffiths of 13 February 2012[47]. The email relates mainly to communication, and acknowledges at one point that “our days are early and real change takes time”.
[47] annexure “DR16”
The response of Mr Griffiths was to, that same day, send the email which is “DR17” to the sales staff, which was responsive to Mr Richards’ concerns, and was on its face an attempt to address the issues he was raising. Mr Griffiths at least saw the need to appear to be supportive of Mr Richards to other staff, albeit in qualified terms. It included a reference to Mr Richards’ position being “equivalent to” a Director of Marketing.
At [93] of his affidavit, Mr Richards again raises a discussion with Mr Charlton regarding not having direct authority over staff. This raises no new issue to the first three dealt with above.
The most substantial “complaint or inquiry” relied upon by Mr Richards is raised at [106] of his affidavit – his emailed “grievance” to Mr Cointreau of 2 May 2012[48].
[48] “DR26”
Mr Richards sought, at the hearing, to present the grievance email as the culmination of the earlier issues raised and dealt with above. The reality is more complex. It became clear to Mr Richards that Mr Cointreau was very unhappy with the dysfunctional administration of his Australian operation and heads were likely to roll. Mr Richards did not want to take the blame for the failings of others.
In this regard, the evidence indicates that prior to the forwarding of that email:
a)Mr Richards was already actively looking for other jobs, and had been since February 2012. He shared websites with Mr Cremer regarding other job opportunities, and had even gone to the extent of contacting the external recruitment consultant who had introduced him to Le Cordon Bleu (on 17 April 2012) advising that he would even take short term work elsewhere; “the sooner the better” to get out of his employment with Le Cordon Bleu[49] clarified in cross-examination to indicate that he was “prepared to do anything” to get out of there[50];
b)Mr Richards had in late April 2012 sought legal advice concerning what damages he could seek from Le Cordon Bleu in the Recruitment Representations Claim, and how he could best advantage himself in exiting his employment with Le Cordon Bleu[51];
c)on 1 May 2012, Mr Richards received an email from Mr Griffiths[52] advising him that the presentation on 30 April 2012 from Mr Charlton to the senior management of Le Cordon Bleu regarding the work Mr Charlton and his team (including Mr Richards) were performing had not gone well;
d)on 1 May 2012 he also received emails from Mr Charlton advising that he would personally be required to make a presentation to senior management[53] and from Mr Cointreau raising the fact that Mr Richards did not appear to have provided required monthly reports to him[54].
[49] “DR22”
[50] see T 54:1-17
[51] T 45-49, and in particular 49:41-47
[52] “DR23”
[53] see annexure “DR 24”
[54] see annexure “DR25”
Given his concerns about the management of Le Cordon Bleu in Australia, Mr Richards prudently took his grievance directly to Mr Cointreau. Mr Cointreau reacted to the complaints made by Mr Richards to Mr Cointreau on 2 May 2012 in an appropriate and accommodating way.
By reply email on 3 May 2012[55], Mr Cointreau acknowledged receipt of Mr Richards’ email in writing and outlined a procedure for addressing and resolving the issues raised by Mr Richards.
[55] see annexure “DR28”
Mr Cointreau agreed to delay the presentation which Mr Richards was scheduled to give on 5 May 2012 to 11 May 2012 and change the location from Melbourne to Sydney.
By email from Mr Griffiths on 6 May 2012[56], Mr Richards was invited to have dinner with Mr Cointreau at 7:00pm on 9 May 2012, the day Mr Cointreau arrived in Sydney (in answer to Mr Richards’ request to meet him). Under cross-examination Mr Cointreau said that he was “very interested” to hear what Mr Richards had to say to him[57]. I accept that evidence. Mr Cointreau knew that his Australian business was in trouble and he would have wanted to find out who was responsible and what he could do about it.
[56] see annexure “RG1” to Mr Griffiths’ affidavit in SYG1618/2012
[57] Transcript reference
Mr Richards agreed to that meeting via return email on 7 May 2012, indicating that due to Mr Cointreau’s busy schedule “this is appreciated”[58].
[58] see annexure “RG2” to the same affidavit
There is therefore, prior to Mr Richards not attending the meeting on 9 May 2012, no indication from him that he had any concerns with the manner in which Mr Cointreau was responding to his grievance email, or that he apprehended any adverse action being under consideration because of him forwarding it[59].
[59] Despite Mr Richards insisting, under cross-examination, that he thought that a phone call from Mr Cointreau would be a better approach, and that he regarded a dinner meeting as “unprofessional”.
Viewed objectively, these surrounding and background circumstances can also only be viewed as meaning that Le Cordon Bleu, as represented by Mr Cointreau, was responding sympathetically to the grievance expressed by Mr Richards. In this context, I accept Le Cordon Bleu’s submission that the High Court’s formulation in Barclay[60] of the correct approach to determination of the issue before the Court in this matter is pertinent:
The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer...” (references omitted)
[60] Board of Bendigo Regional Institute of Technical and Further Education v Barclay 2012 HCA 32 at [41]-[45] per French CJ and Crennan J
Unfortunately, Mr Richards failed to attend the meeting arranged with Mr Cointreau on 9 May 2012 at 7:00pm, and also failed to provide any notification that he could or would not do so (despite being able to send a “running late” email early that morning, and being able to instruct his solicitors to send a letter claiming damages related to the Competition and Consumer Claim).
In contrast to Mr Griffiths and Mr Gurner, Mr Cointreau was an impressive witness. His evidence, as the decision maker, unshaken in cross-examination, was that Mr Richards’ failure to attend the meeting, without providing notice that he could not attend, was the reason he decided to dismiss him at breakfast the next morning (10 May 2012). In fact he probably made up his mind on the evening of 9 May but communicated it to Mr Griffiths at breakfast the next morning. There is no contradictory evidence of that. I accept Mr Cointreau’s direct testimony as reliable. His evidence was critical to discharge the “reverse onus”. While the Court might, in some circumstances, have concerns regarding procedural fairness of a dismissal for this reason, this consideration, (and others which might relate to whether a dismissal falls within the category of being “harsh, unjust or unreasonable”) is not relevant to the matter before the Court. In any event, Mr Cointreau was dealing with a business in trouble and he needed to take decisive action. He could not afford to have his time wasted by an employee who appeared to have rejected an offer of discourse which (if it had been taken) might have saved Mr Richards’ job and led to the dismissal of others.
I do not know when the email of 10 May 2012 from Mr Griffiths to Mr Richards which is part of “DR33” was sent. It could have been sent at the time indicated on it, namely 1:23am. Mr Griffiths had misgivings about the times displayed on emails[61], and was confused under cross-examination relating to when he may have sent it. Mr Griffiths could not say one way or the other when exactly it was sent, but:
a)if he sent it at the time shown on it he was remiss in not pointing out to Mr Cointreau that Mr Richards had not had time to respond to it; and
b)if he sent it after the decision to dismiss at breakfast at around 8:00am on 10 May, he was remiss in failing to give effect to Mr Cointreau’s decision.
[61] Because it might show the time on a computer server overseas rather that at a terminal in Australia
Not much turns on this, in any event, in light of all of the other evidence. It was Mr Cointreau who made the decision to dismiss Mr Richards, not Mr Griffiths.
I find that the non-attendance (without notice) by Mr Richards at the meeting scheduled for 7:00pm on 9 May was the “trigger” for the dismissal, against a background of serious concerns held by Mr Cointreau about the performance of the business, unrelated to any complaint or inquiry by Mr Richards regarding his employment. This background included:
a)the fact that Mr Gurner (who clearly had his own agenda) had developed “concerns” about the quality and quantity of the work being produced by the persons employed in new positions in the business within a few weeks of their employment and communicated these concerns to Mr Griffiths and Mr Cointreau[62];
b)the fact that by March 2012, Mr Griffiths (who like Mr Gurner was unsupportive as a manager) was concerned about the time it was taking the persons employed in the new positions to achieve the tasks he had set for them[63];
c)the fact that Mr Charlton gave a presentation to members of Le Cordon Bleu’s executive on 30 April 2012 which was considered by Mr Cointreau, (with the apparent concurrence of Mr Griffiths and Mr Gurner) to be extremely poor[64];
d)the fact that following the presentation, Mr Cointreau, (again with the apparent concurrence of Mr Griffiths and Mr Gurner) decided that the new positions would be abolished unless their minds were changed after they met with Mr Richards, Mr Cremer and Mr Charlton at the meeting originally scheduled for Melbourne on 5 May 2012, but subsequently rearranged (at Mr Richards’ request) in Sydney on 11 May 2012[65]; and
e)the fact that advice was being sought from solicitors regarding options given the above views[66].
[62] see Mr Gurner’s affidavit
[63] see Mr Griffiths’ affidavit
[64] see Messrs Griffiths’ and Gurner’s affidavits
[65] again, refer to the affidavits of Mr Gurner and Mr Griffiths
[66] see exhibit tendered of solicitor’s advice – privilege waived
Mr Cointreau’s decision to dismiss Mr Richards communicated at breakfast on 10 May 2012 is further informed by Mr Cointreau's evidence regarding the need for a decision in relation to the ongoing employment of Mr Richards, Mr Charlton and Mr Cremer to be made in within a tight time frame while he was in Australia and while they remained in their probation periods[67].
[67] see [20]-[22] of Mr Cointreau’s affidavit and T 109:1-8, 113:5-18, 115:1-26
I find that the issues raised by Mr Richards, and the emailed grievance, had nothing to do with his dismissal other than to commence a process which Mr Richards himself aborted.
There is no evidence to support Mr Richards’ case at trial (borne out through the opening, the written submissions and cross-examination of Le Cordon Bleu’s witnesses) that Mr Richards was dismissed because of his grievance email to Mr Cointreau, that this decision was made around 7 May 2012 (at which time legal advice was sought) and that Mr Richards’ failure to attend the meeting with Mr Cointreau was merely a "convenient pretext" for the real reason behind the dismissal. The questions put to Le Cordon Bleu’s witnesses in cross-examination suggested that Le Cordon Bleu sought advice as to how to dismiss Mr Richards and was told that it would have to find another reason apart from his grievance. This was refuted by the witnesses for Le Cordon Bleu and the advice, over which privilege was waived, speaks for itself. The position would have been different if the dismissal decision had been taken by Mr Griffiths or Mr Gurner. Mr Richards had reason to be distrustful of them and the facts that Mr Richards felt the need to complain directly to Mr Cointreau, and that he accepted that the approach was appropriate, also speak for themselves.
I conclude, on the evidence, that the dismissal did not occur because Mr Richards exercised his workplace right to make a complaint or enquiry in relation to his employment.
Was Mr Richards dismissed because of illness?
Le Cordon Bleu relies on the fact that Mr Richards’ medical certificate had been provided outside the time required by regulation 3.01 of the Fair Work Regulations 2009 (Cth) (Regulations). Mr Richards concedes that service of the medical certificate fell outside the 24 hour period provided for in regulation 3.01(2)(a). However, Mr Richards claims that it falls within regulation 3.01(2)(b).
The Court must determine whether the delay in providing the medical certificate is reasonable or not in accordance with regulation 3.01(2)(b)[68].
[68] see Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207. Opening Submissions of Mr Richards SYG1618/2012 at 3 [23]
Mr Richards’ evidence is that after taking strong medication he slept through the evening of the 9 May 2012 and then when he awoke the next day, realising he had missed an important meeting, went to his doctor to obtain a medical certificate. The certificate was provided to Le Cordon Bleu at 3:51pm on 10 May 2012[69].
[69] see [111]-[113] of Mr Richards’ affidavit
It is plausible in the circumstances that an individual who has taken strong medication to deal with a migraine headache brought about by stress, who has subsequently slept through the evening, might then obtain a certificate the following day and provide it to his employer forthwith. However, Mr Richards also found time to give instructions to his solicitors and, presumably, to take advice.
Both Mr Gurner and Mr Griffiths gave evidence that even though they received Mr Richards’ medical certificate they chose not to believe he was genuinely ill. Both were adamant that they did not accept the medical certificate as legitimate, yet no one from Le Cordon Bleu made any inquiry either of Mr Richards or his doctor as to what the problem was. That is explicable given that Mr Richards’ solicitors had also sent a letter of demand. The inference is available that Mr Richards knew or suspected that his employment was at an end when he sent the medical certificate and that it was a strategic move on his part.
Mr Gurner gave evidence that at the time he did not believe Mr Richards was genuinely ill because he also suffered from migraine headaches and they did not affect him that severely. It became apparent that that evidence must have been false as Mr Richards did not disclose that he had a migraine headache until he filed his evidence. Mr Gurner was an unimpressive witness. He could not have known whether Mr Richards was genuinely ill or not at the time the medical certificate was received. He may have suspected that the illness was not genuine but, if so, that was motivated by personal dislike of Mr Richards.
Mr Richards maintains that if Le Cordon Bleu had genuinely not made the decision to dismiss him until breakfast on 10 May 2012 it might be thought that some inquiry would have been made into the reason for his absence. Indeed one would have thought there would have been some concern on the part of Mr Richards’ employer as to his welfare given the importance of the meeting, his unexplained absence and the ill-health and stress issues that he had raised in his grievance.
The potential answers are complex. The letter from Mr Richards’ solicitors may have caused Mr Cointreau, Mr Griffiths and Mr Gurner to view the medical certificate with a jaundiced eye. Mr Griffiths and Mr Gurner may have been unwilling to check because they did not want Mr Cointreau to change his mind and were glad to be rid of Mr Richards. They may have been happy to see Mr Richards and Mr Charlton be scapegoats for their own failings.
Whatever the reasons were, Mr Richards, having established that he was terminated and having made out a prima facie case, has shifted the burden of proof to Le Cordon Bleu under s.361(1) of the Fair Work Act[70].
[70] see Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32 and Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 and Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399; Opening Submissions of Mr Richards SYG1618/2012 at [16]
Mr Richards maintains that it cannot be said that Le Cordon Bleu has discharged its onus because:
a)Le Cordon Bleu has repeatedly changed its explanation as to why Mr Richards was dismissed[71];
b)part of the evidence given by Le Cordon Bleu on the question of reason for termination was clearly fabricated[72].
c)on Le Cordon Bleu’s version of the termination, the email at annexure “DR3” makes no sense;
d)the fact that Le Cordon Bleu made no enquiry as to Mr Richards’ welfare when he missed his meeting;
e)the failure to put any of the purported reasons for Mr Richards’ dismissal to him as a matter of procedural fairness would also suggest that the decision to terminate Mr Richards was for reasons other than what has been articulated in Le Cordon Bleu’s evidence.
[71] see and compare the correspondence at “DR36” at page 125 with the affidavit of Mr Griffiths in SYG1618/2012 at [21] and the affidavit of Mr Cointreau at [4]
[72] the evidence of Mr Gurner asserting that he knew Mr Richards had a migraine when Mr Richards made no such concession until he filed his affidavit evidence
Notwithstanding these difficulties, I am not persuaded that there was any causal connection between the dismissal of Mr Richards and his asserted illness.
Section 352 of the Fair Work Act states:
(a)n employer must not dismiss an employee because the employee is temporarily absent from work because of an injury or illness of a kind prescribed by the regulations.
The highest level that Mr Richards’ case reaches, on the evidence, is that Le Cordon Bleu received an emailed medical certificate from Mr Richards at approximately 3:51pm on 10 May 2012[73], and was from that time on notice that he had allegedly been suffering an illness the day before which rendered him unfit for work for a seven day period. By the time this was received, the decision had already been made and communicated by Mr Cointreau to dismiss Mr Richards. On this point, the parties are in agreement; it was Mr Richards’ case that the decision to dismiss him was made sometime around 7 May 2012, prior to Le Cordon Bleu seeking legal advice on that day, while Le Cordon Bleu’s witnesses gave evidence that a final decision was made at breakfast on 10 May 2012.
[73] see annexure “DR 33” to Mr Richards’ affidavit
The medical certificate was not provided within 24 hours after the commencement of the absence of Mr Richards (as required by regulation 3.01 of the Regulations). The surrounding circumstances lead me to the view that it was only provided to attempt to explain Mr Richards’ failure to attend the dinner appointment with Mr Cointreau[74]. There was no attempt by Mr Richards at any time on 9 May 2012 to advise Le Cordon Bleu or any of its servants or agents that he was absent from work that day, or the following day (up until nearly 4:00pm on 10 May) that he was absent from work due to illness. He simply advised, at about 8:45 am on 9 May, that he was “running late”[75]. This occurred on a day when he was, nevertheless, fit enough to instruct his solicitors to send a letter of demand to Le Cordon Bleu relating to claims relevant to the Competition and Consumer Claim[76].
[74] See “DR 33” – “I thought you would have acted in response to the proposal from my lawyers yesterday” and T90:22-24
[75] see “DR30” to Mr Richards’ affidavit
[76] see [112] of Mr Richards’ affidavit
All of the above factors are relevant to the consideration of whether a “longer period (than 24 hours after the commencement of the absence) is reasonable in the circumstances”[77]. I accept Le Cordon Bleu’s submission that the real reason for Mr Richards’ absence was that he had decided to pursue a claim against Le Cordon Bleu of the nature of the Competition and Consumer Claim as far back as late April 2012[78], and that he had decided not to attend work due to that claim being made[79].
[77] see regulation 3.01(2)(b)
[78] see his evidence at T:45.11-49.47 –Mr Richards admits seeing his lawyers in April 2012, and (eventually, following repeated attempts to avoid answering the questions) admits at 49:41-47 that this put in train the letter sent demanding three months' salary
[79] again, reference is made to the wording of “DR 33” – relating to a response to the proposal from Mr Richards’ lawyers
Even accepting the medical certificate at face value and accepting that Mr Richards is not, by virtue of the effect of regulation 3.01, unable to pursue his claim because the certificate was provided within a reasonable time, there is no evidence that the alleged absence due to illness had any bearing on the decision to dismiss him. The propositions are that:
a)Mr Richards did not attend the dinner meeting with Mr Cointreau due to the illness, and
b)because the decision to dismiss Mr Richards by Mr Cointreau related to his non-attendance at the meeting this, therefore meant that the temporary absence due to illness was one of the reasons for the dismissal,
are answered by the evidence. At the time the decision to dismiss Mr Richards was made by Mr Cointreau (at breakfast at about 8:00am on 10 May 2012) Le Cordon Bleu had no knowledge of the fact that Mr Richards asserted he was temporarily absent due to illness. All of the evidence (even the evidence of Mr Richards himself) supports this conclusion. It is possible that Mr Gurner and Mr Griffiths were motivated in part by malice, or by a desire for self protection or both. If so, if they played any part in the decision to dismiss Mr Richards, it would have been for those reasons, not because of the medical certificate. However, as I have already found, it was Mr Cointreau who made the decision to dismiss Mr Richards.
The argument that Mr Cointreau, as decision maker, ought to have known that the reason that Mr Richards did not attend the meeting on 9 May 2012 was his temporary absence due to illness from the references in Mr Richards’ grievance email[80] to the fact that he alleged he had suffered stress arising from the work situation and had been unwell as a result is unpersuasive. Mr Cointreau’s evidence is that this “did not come to [his] mind” either on the evening when waiting for Mr Richards to attend[81] or the next morning when making the decision to dismiss[82]. I accept that evidence.
[80] “DR 26”
[81] T 110:15-17
[82] T 112:19-26
Further and in any event, Mr Cointreau's evidence is that he would not have made the decision to dismiss Mr Richards at the time he did if Mr Richards had given prior notice of his inability to attend their dinner appointment[83]. As such, the reason for Mr Richards’ dismissal is not his absence itself but rather his failure to provide timely notification of that absence.
[83] see Mr Cointreau’s affidavit and T 117:1-13
Even allowing for the “reverse onus” created by s.361(1) of the Fair Work Act, and also the s.360 provision relating to action being taken “including” a protected reason, I find that the alleged temporary absence due to illness of Mr Richards played no part in the decision of Mr Cointreau to dismiss him.
The Competition and Consumer claim
This claim is easier to deal with. In my view, it is clear, on the evidence, that the representations made to Mr Richards, prior to him accepting employment with Le Cordon Bleu, were not misleading (as that term is properly understood) and, even if Mr Richards had relied upon the representations, he has not suffered any loss thereby. I accept the submissions of Le Cordon Bleu in relation to this claim.
In relation to this claim, Le Cordon Bleu relies upon the direction provided by Nicholls FM (as he then was) in Roddy v Sydney Adventist Hospital Ltd[84], when applying the observations of Flick J in Robertson v Knott Pty Ltd (No 3)[85] at [12]-[19] as an appropriate way to approach a matter such as this, namely:
1.Were the representations made by the individuals alleged by the applicant to have made them on behalf of (the respondent employer)?
2.If the representations were made, when viewed objectively, were those representations liable to mislead (the applicant) as to the availability, nature, terms or conditions, or another matter, in relation to the employment proposed by (the respondent employer)?
3.Further, if the representations were made, did (the respondent employer), or more specifically the individuals alleged to have made the representations, have reasonable grounds for making them?
4.If the representations were made, did the applicant rely upon the alleged representations?
5.If the representations were made, and were misleading, did the applicant suffer loss or damage because the representations were misleading?
[84] [2012] FMCA 1199
[85] [2010] FCA 1074
I agree, save that the issue is not whether Mr Richards was misled but, rather, what a reasonable person, of the class to which the representations was made would reasonably understand from it[86].
[86] Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276
In relation to the above, there is no reliance placed by Mr Richards (according to his counsel), on the representations made by the recruitment consultant (and it was not pleaded that the consultant was acting as Le Cordon Bleu’s agent). That being the case, there can be no question that the representations allegedly made to Mr Richards by Messrs Gurner and Griffiths were made on behalf of Le Cordon Bleu.
The issues referred to at [130(3)] and [130(4)] really only arise if the questions in [130(2)] can be answered in the affirmative.
In relation to the question of loss or damage, there is absolutely no evidence of any loss or damage suffered by Mr Richards if there were misleading representations made. Apart from providing some very subjective views about the position that he viewed himself as being in whilst working at Le Cordon Bleu, there is no objective evidence provided regarding loss or damage.
The points of claim filed in relation to this matter allege precisely the same loss as is alleged in relation to the General Protections Claim. This is economic loss relating to Mr Richards’ dismissal and what would appear to be an ambit amount of $20,000 for reputational damage.
The two claims are separate and arise at different points in time. They are not (and could not be) made in the alternative. The pleading of identical loss in each claim is therefore unhelpful.
In any event, any economic loss relating to the time when Mr Richards was between jobs after his dismissal plainly cannot be said to arise from the alleged pre-employment misrepresentations (clearly this would flow from Mr Richards’ dismissal, which is the subject of the General Protections Claim).
In relation to the claim for reputational damage, there is no explanation as to how the figure of $20,000 is arrived at. Mr Richards needed to provide proof of loss or damage, and on this basis alone, this claim fails. In any event, [122] of Mr Richards’ affidavit relates his alleged reputational damage to the termination of his employment. The attempt in Mr Richards’ final submissions to draw a link between the misrepresentations and his dismissal was a fruitless one.
Accordingly, I accept Le Cordon Bleu’s submission that, on a proper construction of Mr Richards’ claims, no loss has been alleged in relation to the Competition and Consumer Claim. The proper way to formulate Mr Richards’ loss in relation to this claim is to consider what his position would have been if the alleged misrepresentations had not been made. The Points of Claim allege that Mr Richards relied on the misrepresentations in accepting employment with Le Cordon Bleu and resigning his previous employment. As Mr Richards received a pay rise when he commenced working with Le Cordon Bleu, even on his own case, Mr Richards cannot be said to have suffered any loss.[87]
[87] In his previous employment, Mr Richards was paid $93,000 per annum including superannuation (see [5] of his affidavit). Le Cordon Bleu paid Mr Richards $105,000 per annum (see the salary clause in Mr Richards’ employment contract at page 28 of the annexures to his affidavit).
Mr Richards’ case is to the following effect:
a)he had represented to him that the role was a senior marketing role;
b)he had represented to him that he would have staff reporting to him;
c)he had represented to him that he would have budgetary responsibility and authority;
d)he had represented to him that he would have expenditure responsibility; and
e)the role would solely relate to domestic recruitment.
Under cross-examination, Mr Richards (reluctantly) agreed that there was not any express representation made to him by either Mr Griffiths or Mr Gurner at the interview with respect to the matters referred to at [140(b)]-[140(d)] above[88]. Mr Richards admitted that he had implied or inferred these things, and, viewed objectively, the inferences or implications were not readily apparent.
[88] see T 54-57 and in particular T 57:20-29
With respect to these issues, the evidence of Messrs Griffiths and Gurner (from their affidavits, and uncontroverted by cross-examination) was that there was never any representation made about these issues to Mr Richards. Even taking into account my reservations concerning the veracity of the evidence of Messrs Griffiths and Gurner when tested under cross-examination, and their general lack of recall about the detail of their interview with Mr Richards, he has not discharged his burden of proof.
I find, therefore, that there was no actual representation on any of these issues which was made on behalf of Le Cordon Bleu.
This leaves the issues of whether the role was represented as a senior marketing role which would solely be focussed on domestic recruitment.
The evidence from all parties is that the role was represented as a senior marketing role.
Was this misleading? Mr Richards’ case is essentially that in the absence of being provided with staff, budgetary and expenditure authority the role was not a senior management role, and that he was therefore misled. This is not the case, however, when evidence regarding the role that Mr Richards performed is considered objectively.
That evidence is:
a)the five tasks initially assigned to Mr Richards and his “team” by Mr Griffiths were agreed by Mr Richards as being “important strategic marketing tasks”[89];
b)Mr Richards’ position was at all times one with a title of “Manager” in it, albeit that it was initially expressed by Mr Griffiths that the title should “whatever it takes to properly represent you in the market”[90];
c)the email from Mr Griffiths to sales staff indicating that Mr Richards was the equivalent to a Director of Marketing and Sales[91], in terms of the way that staff should respond to his requests for information;
d)the fact that Mr Richards had a title “finally hashed out” to adequately represent his role of “Senior Marketing Manager – Asia Pacific” for some time before his dismissal[92];
e)the evidence, unchallenged, of Mr Griffiths about the fact that Mr Richards and his “team’ were charged with a very important responsibility of restructuring the manner in which Le Cordon Bleu went about its sales, marketing and recruitment of students, not just for its schools in Australia, but all international schools run by Le Cordon Bleu’s umbrella organisation – this was not a role to be assigned to anyone other than a senior marketing manager. This was agreed as a senior marketing role and opportunity by Mr Richards[93].
[89] see T 66.36-67.37
[90] T 60.5
[91] “DR17”
[92] T 85:40
[93] T 42:24-40
Given the above, it is not open to me to find that the representation to Mr Richards that the role that he was to be employed in was a senior marketing role was in any way a misrepresentation, notwithstanding the subjective opinion to the contrary by of Mr Richards.
I accept that the role offered to Mr Richards was a senior marketing role, and a significant opportunity, which is probably why he took it. His colleague Mr Cremer, performed a similar role with Mr Richards and is now in a much more senior position as an acting Director of Marketing.
In relation to the alleged misrepresentation regarding the domestic focus of Mr Richards’ role, the following evidence is relevant:
a)Mr Richards claims that he was seeking a position with a domestic focus because of a back condition, spondylolisthesis[94];
b)in cross-examination, Mr Richards agreed that he never informed Le Cordon Bleu of his condition[95];
c)it was the unchallenged evidence of Messrs Gurner and Griffiths that the decision to divide what was initially one role between domestic and international came after the interview and after the decision to seek to employ both Mr Richards and Mr Cremer[96];
d)Mr Richards was told by Mr Griffiths during his interview that Le Cordon Bleu was "close to being approved for FEE Help"[97];
e)Mr Griffiths expected Le Cordon Bleu to be approved for FEE Help by the time Mr Richards’ employment commenced[98];
f)"Manager [Domestic Recruitment]" was first put to Mr Richards as a "working title" in an email from Mr Griffiths on 23 October 2011[99];
g)in an email on 24 October 2011, Mr Griffiths said to Mr Richards "although we have invited you as the domestic specialist, I am sure that the new Director will have sufficient flexibility to allow you to share in the international side as well to keep up your travel skills"[100];
h)paragraph 1.b of the position description sent to Mr Richards on 27 October 2011 (before he accepted employment with Le Cordon Bleu), states that he would have responsibilities external to Australia[101];
i)Mr Richards and Mr Cremer were asked to divide areas of responsibility more evenly between them in light of the fact that Le Cordon Bleu, unexpectedly, had not achieved FEE Help status by the time Mr Richards commenced work[102];
j)Mr Cremer (who was an impressive witness) gave evidence (which I accept) that he and Mr Richards did this amicably, and that Mr Richards was happy to be responsible for South-East Asia as his brother lived in Thailand[103].
[94] see [6] of his affidavit
[95] T 57:41-45
[96] see [10]-[11] and [23]-[27] of Mr Griffiths' affidavit and [13]-[15] of Mr Gurner's affidavit
[97] [19] of Mr Richards’ affidavit
[98] see [39] of his affidavit
[99] see pages 15 and 16 of the annexures to Mr Richards’ affidavit
[100] see page 14 of the annexures to Mr Richards’ affidavit
[101] see page 38 of the annexures to Mr Richards’ affidavit
[102] see [36]-[41] of Mr Griffiths' affidavit and [11] of Mr Cremer's affidavit
[103] see [12]-[14] of his affidavit. It is also noted that Mr Richards previously been worked in Thailand – see his resume at page 8 of the annexures to his affidavit
I accept Le Cordon Bleu’s submission, that the following conclusions can be drawn from this evidence:
a)while Mr Richards now claims that he was always seeking a domestically focussed role, he did not communicate the reasons for this during his interview with Le Cordon Bleu, at which time the role was yet to be split into domestic and international;
b)Mr Richards’ role was never represented to him as relating solely to domestic recruitment;
c)to the extent, if any, that Le Cordon Bleu represented Mr Richards’ role would have a more significant domestic focus than it did, this was due to Le Cordon Bleu’s expectation in October 2011 that it would shortly be granted FEE Help status and was therefore made on reasonable grounds; and
d)Mr Richards agreed to be responsible for South-East Asia shortly after the commencement of his employment.
To the extent Mr Richards relies on the employment contract and position description as supporting the alleged misrepresentations, Le Cordon Bleu submits, and I accept, that these were entirely consistent with evidence regarding the nature of Mr Richards’ employment. Under cross-examination, Mr Griffiths referred to the first line of Mr Richards’ position description under the heading "Main Role and Responsibilities" which states "Develop, implement and manage marketing strategies for a multi campus international brand"[104]. Mr Richards was in the initial "develop" stage of this progression during his employment with Le Cordon Bleu[105].
[104] T 136:18-20
[105] T 138:32-35
The reasons that Mr Richards had difficulties in making the role work do not relate to any misrepresentations about the role, but to a combination of factors of which the most important were the complexity of the business transition upon which Le Cordon Bleu was engaged, staff resistance to that transition, poor management and the personality of Mr Richards.
There is no basis for any finding that there were representations not made on reasonable grounds by either Mr Gurner or Mr Griffiths which were apt to mislead Mr Richards (or any reasonable prospective employee) regarding anything to do with his employment with Le Cordon Bleu.
Further and in any event, Le Cordon Bleu submits, and I accept, that the assertion that Mr Richards relied on Le Cordon Bleu’s alleged misrepresentations in resigning his former employment cannot be accepted. At [21] of his affidavit, Mr Richards gives the following evidence:
During the interview I also spoke of why I would make a change away from my current employment. I said words to the effect:
The National Art School is a small institution and has limited opportunity for my career progression.
In other words, Mr Richards was looking for a change and seized the opportunity.
Conclusion
There is no doubt that the job Mr Richards took on was a challenging one and that the workplace was dysfunctional because of the substantial business transition which Le Cordon Bleu was undertaking at the time and the poor way in which it was being handled. However, it was made clear to Mr Richards before he took the job that Le Cordon Bleu was engaged in a business transition. He knew, or should have known, that he would be expected to support that transition. The transition led to conflict in the workplace and Mr Richards was not well supported by his managers in the role he was expected to perform. This led to frustration which was not limited to Mr Richards. Given the management difficulties, the appropriate response by Mr Richards was to raise his concerns with Mr Cointreau. That is what he did. However, for whatever reason, Mr Richards chose not to follow through with that complaint. That failure rendered Mr Richards’ position in the business untenable and it is unsurprising that Mr Richards was included in the terminations of employment that Mr Cointreau decided upon, in the course of cleaning up the mess he found.
Mr Richards has failed to establish either an unlawful termination of his employment or a misleading and deceptive representation causing him to enter into that employment. I will therefore order that both proceedings be dismissed.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 October 2013
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