Ameer v Toost Pty Ltd (No 2)
[2025] FedCFamC2G 1317
•15 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ameer v Toost Pty Ltd (No 2) [2025] FedCFamC2G 1317
File number(s): ADG 58 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 15 August 2025 Catchwords: INDUSTRIAL LAW – Alleged contravention of general protections – termination of employment – reason for termination of employment – whether because of exercise of workplace right in relation to alleged underpayment – whether fraud or misappropriation by employee – whether because of industrial activity by or on behalf of the employee – whether reason for termination of employment prohibited reason
PRACTICE AND PROCEDURE – Pleading of accessorial liability – notice to produce – whether to set aside subpoena – whether leave to file further affidavit concerning alleged misappropriation of cash – relevance of truth or falsity of alleged operative or substantial reason
Legislation: Evidence Act 1995 (Cth) s 135
Fair Work Act 2009 (Cth) ss 323, 340, 341, 342, 346, 347, 361, 535, 550, 570
1 Migration Act 1958 (Cth) s 347
2 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.02
Migration Regulations 1994 (Cth) Sch 2, cl 187
General Retail Industry Award 2020 cll 21.2, 35
Cases cited: Australian Gas Light Company ACN 052167405 v Australian Competition and Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
Chia v Talaria Asset Management Pty Ltd [2024] FedCFamC2G 1441
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278; [1959] ALR 367
Kape v The Golden Mile Loopline Railway Society Inc [2019] FCA 2063
Mishra v Monash Health [2022] FedCFamC2G 240
Mondal v Transclean Facilities Pty Ltd [2020] FCCA 1334
Musgrove v Murrayland Fruit Juices Pty Ltd [1980] FCA 64; (1980) 47 FLR 156
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39; (2019) 286 IR 116; (2019) 365 ALR 402
Revill v John Holland Group Pty Ltd [2022] FCAFC 178; (2022) 295 FCR 269; (2022) 321 IR 30
Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248; (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010(1)
Vink v LED Technologies Pty Ltd [2013] FCA 443
Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201
Division: Division 2 General Federal Law Number of paragraphs: 126 Date of last submission/s: 10 August 2023 Date of hearing: 8-10 August 2023 Place: Perth (heard in Adelaide) Counsel for the Applicant: Mr P Dean Solicitor for the Applicant: Johnston Withers Lawyers Counsel for the Respondents: Mr D Allen Solicitor for the Respondents: Edmond Khoury Solicitors ORDERS
ADG 58 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAHAD AMEER
Applicant
AND: TOOST PTY LTD
First Respondent
SYED ZAHEER AHMED SHAH
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
15 AUGUST 2025
THE COURT ORDERS THAT:
1.The Originating Application, as amended by an Amended Originating Application filed 15 May 2023, and as further amended by a further Amended Originating Application accepted for filing on 9 August 2023, be dismissed.
2.Any application for costs (including reserved costs) may be made within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before this Court is a further amended originating application (“Application”) lodged by the applicant, Mr Fahad Ameer (“Mr Ameer”), on 8 August 2023 and accepted for filing on 9 August 2023 alleging that the first respondent and the second respondent, Toost Pty Ltd (“Toost”) and Mr Syed Zaheer Ahmed Shah (“Mr Shah”) respectively (together “Respondents”), contravened general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).
THE APPLICATION
The Application:
(a)alleges contraventions of:
(i)section 340 of the FW Act by reason of adverse action taken against Mr Ameer by Toost in relation to the termination of Mr Ameer’s employment on the basis that he had, or exercised, or proposed to exercise a workplace right, or that Toost prevented the exercise of a workplace right by Mr Ameer, or that Mr Ameer had a third person, his lawyers, exercise or propose to exercise a workplace right for his benefit; and
(ii)section 346 of the FW Act by taking adverse action against Mr Ameer because he was a member of an industrial association or sought to be represented by an industrial association;
(b)alleges that Mr Shah was involved in, and party to, the alleged contraventions set out above; and
(c)seeks orders that Toost and Mr Shah:
(i)pay compensation to Mr Ameer for economic loss (an order not pursued at hearing: Transcript, p 13);
(ii)pay compensation to Mr Ameer for non-economic loss; and
(iii)impose a pecuniary penalty against Toost and Mr Shah in relation to their alleged contraventions of ss 340 and 346 of the FW Act.
PRELIMINARY ISSUES
A number of preliminary issues were dealt with on the first day of the hearing.
Pleading
For reasons which are not apparent at no stage during the interlocutory processes in these proceedings were formal pleadings ordered to be filed.
At the outset of the final hearing the Court dealt with an issue in relation to the “pleading” of this matter, insofar as the Form 2 – “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” can be considered to be a pleading. That issue related to the manner in which the claim was pleaded against Mr Shah, which at the commencement of the final hearing was in the following form:
26.Note the Applicant makes this claim against both Toast (sic) Pty Ltd and Mr Syed Zaheer Ahmed Shah as the director of the Respondent employer entity Toost Pty Ltd and as the officer of Toost Pty Ltd who committed the FWA breaches.
27.Mr Shah is liable under s. 550 of the FW Act in that he was “involved in” the contraventions set out in this application.
Section 550 of the FW Act provides that:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
In Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 (“Sabapathy”) at [42] per Logan and Katzmann JJ the plurality in the Full Court of the Federal Court observed that:
…While provision might be made for some level of informality in every case in the Circuit Court, in this kind of case where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleading should be applied.
In cases involving accessorial liability under s 550 of the FW Act both the Federal Court and this Court have observed that “more is required” than a mere pleading that somebody was involved in a contravention: see, for example, Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 at [28]-[32] per Thawley J and Mondal v Transclean Facilities Pty Ltd [2020] FCCA 1334 at [49] per Judge O’Sullivan.
Albeit in the context of an application for leave to appeal, the proper approach to pleading s 550 of the FW Act was neatly summarised in Revill v John Holland Group Pty Ltd [2022] FCAFC 178; (2022) 295 FCR 269; (2022) 321 IR 30 at [88] per Feutrill J (with whom Bromberg J at [12] and Banks-Smith J at [19] agreed) where it was said that:
…Allegations of involvement in a contravention under s 550 are serious and tantamount to allegations of dishonesty. Allegations of that nature must be pleaded clearly and with particularity: … That has not been done in the minute. The pleading does not identify which, if any, of the subsections of s 550(2) are alleged to be the grounds of the alleged involvement. Further, none of the material facts and particulars that would be necessary to plead reasonably arguable causes of action for involvement on one or more of the grounds in s 550(2) is pleaded. The claims as articulated in the minute of proposed further substituted statement of claim are little more than bare assertion.
Further, as the plurality in the Full Court of the Federal Court observed in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39; (2019) 286 IR 116; (2019) 365 ALR 402 at [239] per Besanko and Bromwich JJ:
It is not to the point that a different stance could have been taken with the benefit of all of the evidence and the submissions. His Honour was entitled to form a view as to whether the allegation was sufficiently clearly pleaded so as to meet the procedural fairness requirements of a pleading, especially in a civil penalty case …
The pleading alleging Mr Shah’s involvement by reason of s 550 of the FW Act as set out at [5] above suffered from being no more than bare assertion and from a lack of pleading of the material facts and particulars. In those circumstances the Court made orders on the first day of the final hearing for Mr Ameer to have leave to file a further amended application by no later than 4.00 pm that day, with the costs of the summary dismissal application in a proceeding, reserved.
The Court made the order for a further amended application to be filed because:
(a)whilst a deficient proceeding will not be saved by reference to the evidence and the submissions, it was evident in this case that insofar as the matters alleged to constitute contraventions of the FW Act were alleged to have occurred that the primary, and often only, actor was Mr Shah in his capacity as a director of Toost, and that the matter could be repleaded to properly allege Mr Shah’s involvement; and
(b)it was not in the interests of justice to deny Mr Ameer a second opportunity to replead this aspect of his case, particularly in circumstances where it was, quite properly, not asserted by Counsel for Mr Shah, that Mr Shah would be prejudiced if the matter of Mr Shah’s alleged accessorial liability were to be properly repleaded.
The Application, as amended and repleaded as a consequence of the order referred to at [11] above, was not objected to when the hearing recommenced on the second day of hearing.
Notices to Produce
Mr Ameer sought that Notices to Produce dated 19 July 2023 and 24 July 2023 issued by the Respondents be set aside.
In relation to the Notices to Produce issued by the Respondents (including an amended Notice to Produce) those Notices were not pressed, and the Respondents indicated that they could be set aside: Transcript, p 12.
Set aside of subpoena
In relation to the application to set aside the subpoena filed by the Respondents on 20 July 2023 the Court held that the application to set aside ought to be dismissed given that the material sought to be subpoenaed from the proper officer of Uber Australia, which included copies of employment records for Mr Ameer including wage sheets, payslips and timesheets of days and hours worked, might be relevant to the claim for general damages for anxiety, stress, shock and exacerbation of an existing medical condition, and thus served a legitimate forensic purpose: Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248; (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010(1); ALR at 103 per Beaumont J; Australian Gas Light Company ACN 052167405 v Australian Competition and Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 at [8] per French J.
Affidavits
There was no objection to the filing of some further affidavits, including three from Mr Shah, one from Mr El-Khoury (the Respondents’ solicitor), and one from Mr Satchell (a lawyer employed by the Shop Distributive and Allied Employees Association (“SDA”) at the relevant time), but there was an objection to the filing of an affidavit of Mr Rateb El-Darwich sworn on 24 July 2023 (“Mr El-Darwich Affidavit”).
The Mr El-Darwich Affidavit, which with annexures ran to 639 pages, was described as a document detailing a mechanical exercise of reconciling cash till reconciliations with the amount of money banked. That was said to be arguably relevant because part of the alleged reason for the dismissal of Mr Ameer from his employment with Toost was that he had allegedly misappropriated cash and it was said that the reconciliation conducted by Mr El-Darwich (who is apparently an accountant) revealed a difference between the cash till reconciliations and the amount of money banked, with the latter being less than the former. Mr El-Darwich’s Affidavit was not in the form of an expert report, and was filed (or sought to be filed) so late that Mr Ameer had no opportunity to analyse its content and obtain rebutting evidence. Plainly on that view the evidence in Mr El-Darwich’s Affidavit was prejudicial to Mr Ameer, and might be excluded under the provisions of s 135(a) of the Evidence Act 1995 (Cth). There is, however, a further reason not to grant leave for Mr El-Darwich’s Affidavit to be filed. It was argued that Mr El-Darwich’s Affidavit might be confirmatory in the sense that it might confirm that Mr Shah’s state of mind at the time he terminated Mr Ameer’s employment was grounded in some form of reality, in that it demonstrated that there was a basis for the assertion that cash had been misappropriated. That does not however matter because whether the reasons for termination were true or false is immaterial: Musgrove v Murrayland Fruit Juices Pty Ltd [1980] FCA 64; (1980) 47 FLR 156 (“Musgrove”); Mishra v Monash Health [2022] FedCFamC2G 240 (“Mishra”) at [62] and [66] per Judge McNab; Chia v Talaria Asset Management Pty Ltd [2024] FedCFamC2G 1441 (“Chia”) at [91]-[92] per Judge Taglieri, and therefore not relevant, because the reason for termination if accepted remains the reason for termination even if it is wrong, and if that reason is not a prohibited reason its alleged factual foundations are irrelevant. In the circumstances, the Court refused leave to file the Mr El-Darwich Affidavit.
LAW WITH RESPECT TO GENERAL PROTECTIONS PROVISIONS
It is convenient to first set out some of the law with respect to the relevant general protections provisions of the FW Act.
Section 340 of the FW Act is as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Section 341(1) of the FW Act is as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Sections 360 and 361 of the FW Act are as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
In the context of adverse action proceedings it is for an applicant to assert and establish that:
(a)they exercised the workplace rights pleaded in their statement of claim;
(b)the conduct complained about in fact occurred; and
(c)that conduct constitutes adverse action under s 342(1) of the FW Act.
If Mr Ameer proves the conduct and alleges that the conduct was carried out for a prohibited reason it is for Toost to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s 361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”).
In Barclay the High Court said:
(a)the task of a court in a proceeding alleging a contravention by reason of adverse action “is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason”: Barclay at [5] per French CJ and Crennan J; see also State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 (“Grant”) at [32] per Tracey and Buchanan JJ;
(b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
(c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
(d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The analysis of Gageler J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [85] is instructive (footnotes omitted):
Analysis in the appeal to this court must begin, as analysis began at each stage of the proceedings in the Federal Court, with consideration of this court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1). The unanimous holding in that case was that, read in the context of ss 360 and 361 of the Act and of its legislative history, the word “because” in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action. Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
The above passage explains the Court’s task is to ascertain on the evidence the operative and immediate reason for the decision. There is no contravention if the decision maker is actuated by reasons which do not include the employee exercising a workplace right.
In relation to the evidence bearing upon the decision made by an employer:
(a)French CJ and Crennan J in Barclay said:
(i)at [41] that “why an employer took adverse action against an employee is a question of fact”;
(ii)at [44] 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?’”; and
(iii)at [45] that:
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 ...
(b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s 361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, [86] per Gummow and Hayne JJ, and [149] per Heydon J.
Under s 360 of the FW Act a prohibited reason need only be one of the reasons for the adverse action for a contravention of the general protections provisions to arise. A prohibited reason must however be a “substantial and operative factor” in influencing the adverse action or “an operative or immediate reason” for acting: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ, and [140] per Heydon J.
It follows then, and it is important to observe that, the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
Finally it is necessary to observe that these claims are general protections claims to be determined by the Court under the FW Act, where the Court is required to determine the real reasons for alleged adverse action, and whether the adverse action, which must be in relation to a workplace right, was for a prohibited reason, and not whether the reasons for the alleged contravention were fair or unfair or soundly based: Kape v The Golden Mile Loopline Railway Society Inc [2019] FCA 2063 at [36]-[37] per Colvin J; Vink v LED Technologies Pty Ltd [2013] FCA 443 at [45] per Tracey J; Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457 at [38] per Marshall J.
Section 346 of the FW Act provides as follows:
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Section 347(a) and (b) of the FW Act provides as follows:
A person engages in industrial activity if the person:
(a)becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii)organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii)encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv)comply with a lawful request made by, or requirement of, an industrial association; or
(v)represent or advance the views, claims or interests of an industrial association; or
(vi)pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association;
UNCONTENTIOUS FACTS CONCERNING MR AMEER AND HIS EMPLOYMENT
The following facts concerning Mr Ameer and his employment with Toost are seemingly uncontentious:
(a)in late 2014 Mr Ameer moved to Australia from his country of birth, Pakistan;
(b)in October 2015 Mr Ameer commenced employment with Toost, working in a store in Salisbury, a suburb of Adelaide (“Salisbury Store”), that Toost operates as a franchisee as part of The Cheesecake Shop (“TCS”) franchise network;
(c)Mr Shah is a director of Toost;
(d)from 2015 to October 2021 there do not appear to have been any issues concerning Mr Ameer’s employment by Toost or between Mr Shah and Mr Ameer;
(e)Mr Shah lived in Sydney, and Mr Ameer was trusted with the task of handling cash for Toost in the Salisbury Store from 2015 until August 2020 when he voluntarily relinquished that task, and it was given to another employee named Faraz (“Mr Faraz”);
(f)Mr Ameer, Toost and Mr Shah were involved in administrative proceedings in the Administrative Appeals Tribunal (“AAT Proceedings” and “AAT” respectively) concerning Mr Ameer’s migration status in Australia; and
(g)the termination of Mr Ameer’s employment with Toost (which is the subject of this litigation) took effect from 12.05 pm on 25 November 2021.
MR AMEER’S SUBMISSIONS
Mr Ameer submits that Toost has contravened s 340 of the FW Act through taking adverse action against him because:
(a)Mr Ameer has a workplace right; and/or
(b)Mr Ameer has exercised a workplace right; and/or
(c)Mr Ameer proposed to exercise a workplace right; and/or
(d)Toost sought to prevent the exercise of a workplace right by Mr Ameer; and/or
(e)Mr Ameer had a third person (his legal representative) exercise, and/or propose to exercise, a workplace right for his benefit.
Mr Ameer submitted generally that:
(a)the Court is required to determine:
(i)the existence or otherwise of a workplace right (and its exercise or proposed exercise) and whether Mr Ameer engaged in industrial activity;
(ii)the existence or otherwise of adverse action; and
(iii)whether Toost has discharged the onus under s 361 of the FW Act;
(b)because the task is confined to the above, this does not invite an inquiry into either:
(i)the validity of any complaint (including whether Mr Ameer was underpaid) or reasons for engaging in industrial activity;
(ii)whether Toost had a good reason, valid reason or sufficient reason at common law to dismiss Mr Ameer; and
(iii)nor whether Mr Ameer was a generally good or bad employee or Toost a generally good or bad employer;
(c)in relation to the questions of the existence of a workplace right, it having been exercised and the industrial activity having been engaged in, these are all easily established for reasons as follows:
(i)in letters to TCS and Toost respectively dated 11 November 2021 and 24 November 2021 respectively (“SDA 11 November 2021 Letter” and “SDA 24 November 2021 Letter” respectively, and collectively “SDA Letters”) the SDA makes and refers to substantial and significant allegations of serious contraventions of workplace laws in relation to persons including Mr Ameer (and of whom Mr Ameer was the only one who remained in employment with Toost). The SDA Letters alleged contraventions related to failing to pay wages, failing to pay leave, failing to pay overtime, misclassifying employees, knowingly producing false pay slips, and also raised the prospect of legal action and the institution of a claim for significant compensation and penalties, and expressly warns Toost against taking adverse action against any current employee for a prohibited reason;
(ii)the SDA Letters relate to workplace rights in numerous ways because they:
(A)involve the assertion of rights under a workplace law (namely, the General Retail Industry Award 2020 (“GRI Award”)): FW Act, s 340(1)(a);
(B)involve the prospect of the initiation of, or participation in, a process or proceedings under a workplace law to seek compliance with a workplace instrument: FW Act, s 341(1)(b); and
(C)constitute and relate to the making of a complaint or enquiry in relation to employment, both from Mr Ameer to the SDA and from Mr Ameer to Toost: FW Act, s 341(1)(c);
(iii)to the extent that it is significant that the SDA Letters came from an officer of the SDA rather than Mr Ameer himself, this engages s 340(2) of the FW Act;
(iv)the SDA Letters further indicate that Mr Ameer has engaged in “industrial activity”. The SDA Letters confirm that Mr Ameer has sought to be represented by an industrial association. This constitutes engaging in “industrial activity”: FW Act, s 347(b)(vii); and
(v)at the very latest, by the time they received either of the SDA Letters Toost and Mr Shah became aware of the claims and the exercise or proposed exercise of rights and that Mr Ameer had sought to be represented by the SDA;
(d)in relation to adverse action, the proof of adverse action is straightforward: it is uncontroversial that Toost, through Mr Shah, dismissed Mr Ameer;
(e)in relation to the nexus:
(i)the substantive controversy arising in the proceedings is whether the taking of action was for a prohibited reason. The essential question before the Court is whether Toost has discharged the onus that falls upon it to disprove the allegations, or whether the allegations remain presumptively proven in consequence of s 361 of the FW Act;
(ii)Toost and Mr Shah have sought to disprove the termination allegation by contending that Mr Ameer’s termination was not for a prohibited reason but rather was because he had engaged in the misappropriation of cash and the forgery of Mr Shah’s signature. In order to make good its defence, the Respondents need not prove the veracity of the underlying allegations, but they must prove that these were the operative reasons for dismissal to the exclusion of the prohibited reasons alleged by Mr Ameer to form reasons for termination;
(iii)the alleged reasons should be rejected as reasons for the termination – Mr Shah’s account of the termination is thin and implausible;
(iv)Mr Ameer was an employee of Toost between 2015 and sometime in 2021. His migration matter was concluded years prior to the termination in 2021. There is no evidence of any investigation into the matters now relied upon by Toost, other than passing references to a till discrepancy. On 22 November 2021, three days before the dismissal, Mr Shah’s expressed concerns relate to following a roster, with no mention of any forgery or misappropriation of cash. On 23 November 2021 Mr Shah raises an issue of collecting money from the till and directs Mr Ameer to “strictly follow the company rules”, implying ongoing employment. There is no evidence of any investigation of any kind in relation to the allegations;
(v)on 25 November 2021 Mr Ameer was dismissed for unspecified breaches and unspecified “fraudulent activities”: the allegations are lacking in detail. That same day, lawyers for the Respondents wrote to the SDA referring to “fraudulent claims”. This can only be sensibly understood as a reference to the claims made by the SDA. There is no evidence of any other claims; and
(vi)there is no explanation consistent with the stated reasons for termination of employment as to why Mr Shah moved from advising Mr Ameer to follow the company rules, with the obvious implication of ongoing employment, and terminating his employment within 48 hours. In the intervening period, the SDA had again written reiterating it intended to commence legal action; and
(f)accordingly, it remains presumptively proven that the adverse action was taken for the prohibited reasons. These give rise to contraventions of ss 340 and 346 of the FW Act.
Specifically, in relation to s 346 of the FW Act Mr Ameer further submits:
(a)Toost and Mr Shah contravened s 346 of the FW Act by taking adverse action against him because Mr Ameer:
(i)became a member of an industrial association; and/or
(ii)sought to be represented by an industrial association;
(b)Toost committed adverse action against Mr Ameer through:
(i)injuring Mr Ameer in his employment: FW Act, s 342(1) Item 1(b), through the reduction of Mr Ameer’s regular hours of work on 22 November 2021; and
(ii)terminating Mr Ameer’s employment: FW Act, s 342(1) Item l(a), on 25 November 2021;
(c)Toost took action by way of terminating the employment of Mr Ameer because he raised an underpayment concern, and had a third person exercise, and/or propose to exercise, workplace rights relating to a significant underpayment, in that Mr Ameer had a workplace right to receive overtime in relation to further hours worked under cl 21.2 of the GRI Award, and to be paid for all time worked under s 323 of the FW Act;
(d)Toost took action by way of reducing Mr Ameer’s hours of work without consultation whilst:
(i)Mr Ameer had a workplace right to receive overtime in relation to these further hours worked under cl 21.2 of the GRI Award;
(ii)Mr Ameer had a workplace right to consultation in relation to change to regular rostered hours under cl 35 of the GRI Award; and
(iii)Toost’s direction to Mr Ameer to perform significantly reduced hours of work without engaging in the required consultation under cl 35 of the GRI Award sought to deprive Mr Ameer of his workplace right to overtime and consultation in respect of a change to regular hours of work;
(e)Toost took the action through terminating the employment of Mr Ameer after and because Mr Ameer became a member of the SDA and/or sought to be represented by the SDA and after and because Mr Ameer raised, and had a third person exercise, and/or propose to exercise workplace rights relating to the prospect of a claim against Toost in respect of an underpayment and penalties;
(f)the termination of the employment of Mr Ameer came within weeks of this claim being raised in circumstances where Mr Ameer had worked for Toost since 19 October 2015;
(g)the termination of the employment of Mr Ameer came within a day of a letter flagging imminent legal action in respect of underpayment and penalties;
(h)the reasons for Toost’s termination of the employment of Mr Ameer as set out in the email dated 25 November 2021 are entirely non-specific and vague, and Toost failed to provide evidence or specific examples of any alleged misconduct;
(i)it is noted the Respondents failed to put any specific allegations to Mr Ameer, or allowed Mr Ameer to respond to any specific allegations, prior to terminating his employment;
(j)Toost has no information it did not have prior to Mr Ameer raising concerns regarding underpayment and Toost’s compliance with industrial instruments;
(k)there is no other apparent basis for the termination of Mr Ameer’s employment apart from Mr Ameer having raised underpayment and industrial compliance issues with Toost; and
(l)to the extent that Mr Ameer did breach employment policies this was not the reason for the termination of Mr Ameer as Toost did not become aware of any further or new information immediately prior to the termination or through Mr Ameer raising an underpayment claim against Toost.
The Court notes that the GRI Award was not tendered in evidence.
RESPONDENTS’ SUBMISSIONS
The Respondents submitted generally that:
(a)Toost’s decision to dismiss Mr Ameer from his employment was actuated by the belief that Mr Ameer had engaged in fraud (both in relation to the missing documents and the misappropriation of cash) and hence was not adverse action within the meaning of s 340 of the FW Act; and
(b)if wrong, no damage has been suffered as Toost was entitled to dismiss Mr Ameer in any event and damage has not been established on the evidence.
The Respondents submitted that on the evidence there were two reasons for termination of Mr Ameer’s employment: first, that on the migration documents submitted in the AAT Proceedings Mr Shah’s signature had been forged, and, second, that cash had been misappropriated by Mr Ameer when he took money from the till at the Salisbury Store without authorisation.
The Respondents submitted that the evidence established that:
(a)Ms Samantha Vitale (“Ms Vitale”), a migration agent, who had been engaged it seems to appear for Toost in the AAT Proceedings, contacted Mr Shah and told him that she had been contacted by the SDA’s lawyers and requested not to provide immigration documents to Mr Shah;
(b)Mr Shah had spoken to Mr Ken Rosebery, the managing director of TCS in relation to a complaint made by the SDA, but that he was not concerned by the complaint save for it causing him embarrassment because TCS operated a centralised roster system called Tanda, which automatically calculated pay and entitlements;
(c)because Mr Shah believed that something was wrong with the migration documents he asked Ms Vitale: Transcript, p 70, for the documents, and for the documents for all of the employees whose migration status had been sponsored by Toost;
(d)Mr Shah’s evidence that he had not previously seen the migration documents (described in greater detail below) ought to be accepted;
(e)Mr Ameer’s explanation that other persons were authorised to sign for Mr Shah ought not to be accepted as it lacked particularisation as to the scope and detail of any such authorisation;
(f)after Mr Shah had examined the migration documents he determined to take legal advice in relation to them;
(g)Mr Shah met with a lawyer, Mr Khoury, from Edmond Khoury Solicitors at 10.00 am on Sunday 21 November 2021 (“Shah-Khoury Meeting”);
(h)Mr Ameer did not engage with Mr Shah’s concerns – set out in email form – with respect to the misappropriation of cash (in the sum of $150);
(i)Mr Khoury gave evidence that the underpayment issue raised by the SDA was merely mentioned at the Shah-Khoury Meeting and that Mr Shah’s concerns were the forging of his signature on the migration documents and the misappropriation of cash;
(j)Mr Shah did not make an immediate decision in circumstances where Mr Ameer had been a long-term employee, and he was hopeful that Mr Ameer would give him an explanation as to why he had misappropriated the cash, but Mr Ameer never did so, and on 25 November 2021 Mr Shah made the decision to dismiss Mr Ameer; and
(k)the objective facts indicate that Mr Shah’s decision to terminate Mr Ameer’s employment was actuated by the forged signatures on the migration documents and the misappropriation of cash.
FACTUAL MATTERS
It is first necessary to examine the factual matters related to Mr Ameer’s employment with Toost, and especially the matters giving rise to the alleged contraventions as they occurred in October and November 2021. In relation to the facts, the Court notes that the primary, and critical, issue to ultimately be determined is the operative and substantial reason or reasons for the dismissal of Mr Ameer from his employment with Toost.
Employment Agreement Schedule
A document headed “Employment Agreement Schedule 1” (“2015 Employment Agreement”) and bearing a TCS logo indicates that Mr Ameer was employed by Toost with effect from 1 January 2015. Whilst there is no dispute that Mr Ameer was employed by Toost from 19 October 2015, Mr Shah says that he had never seen the 2015 Employment Agreement until it was provided to him on 2 November 2021 by Ms Vitale in response to a request from Mr Shah for certain migration documents: Transcript, pp 69 and 83; see further at [54]-[56] below. The 2015 Employment Agreement is signed by a “Manager named at Item 19”. The Manager named at Item 19 is not Mr Shah. Mr Shah denied under cross-examination that the signature was his: Transcript, p 82. Mr Shah also explained that for employment documents a manager at “head office” (presumably the office of the franchisor) “can sign”: Transcript, p 82.
The employment start date of 1 January 2015 in the 2015 Employment Agreement is incorrect. That is because:
(a)Mr Ameer arrived in Australia on 9 December 2014, and subsequently studied in Sydney;
(b)Mr Ameer later contacted Mr Shah who offered him employment through a company called Pathan Pty Ltd at the Errindale Cheesecake shop in Canberra, where he commenced employment for two days a week in April 2015, commuting from Sydney each week to work those two days; and
(c)on 19 October 2015 Mr Ameer and Mr Shah (and others) flew to Adelaide and drove to the Salisbury Store, at which Mr Ameer commenced working that day.
In all the above circumstances the Court:
(a)believes Mr Shah when he says that he had not seen the 2015 Employment Agreement;
(b)accepts that the “Manager” signature at Item 19 on the 2015 Employment Agreement is not Mr Shah’s signature; and
(c)finds that Mr Ameer could not have been employed with Toost at the Salisbury Store with effect from 1 January 2015, and that the employment commencement date on the 2015 Employment Agreement is wrong (and significantly so).
Otherwise, there is insufficient evidence to conclude how and why and when the 2015 Employment Agreement came into existence, save to say that it must have been:
(a)at some time after Mr Ameer went to Adelaide on 19 October 2015; and
(b)before or contemporaneous with the subsequent AAT Proceedings in July 2019 in relation to Mr Ameer’s migration status.
Individual Flexibility Employment Agreement
There is in evidence a copy of a document headed “Individual Flexibility Employment Agreement” and bearing a TCS logo and an address for the Salisbury Store, with a footer referring to Toost and its Australian Business Number (“ABN”), purportedly signed by Mr Ameer and Mr Shah on 13 February 2017 (“2017 Employment Agreement”), but in relation to which Mr Shah says that:
(a)the 2017 Employment Agreement was referred to at an AAT Proceeding in 2019 in relation to an application for a visa for Mr Ameer; and
(b)he had never seen the 2017 Employment Agreement until it was provided to him on 2 November 2021 by Ms Vitale, in response to a request from Mr Shah for certain migration documents: Transcript, pp 69; see further at [54]-[56] below, and that the signature in the 2017 Employment Agreement purporting to be his (in his capacity as Managing Director of Toost) is not his signature: Transcript, pp 69 and 83.
Authorisation to sign documents
The issue arose as authorisation to sign documents related to the Salisbury Store. There is no dispute that Mr Shah lived in Sydney at the relevant times and is the franchisee for another TCS store in Sydney. Mr Shah denied the suggestion put to him in cross-examination that he had authorised other staff to use his signature from time to time and said that if documents in relation to the Salisbury Store needed to be signed he would do that himself when he visited the Salisbury Store, which he did three or four times a year: Transcript, p 72 (see also p 59).
AAT Proceeding
Mr Ameer and Mr Shah, together with Ms Vitale (it can be inferred in her capacity as a migration agent) attended the AAT Proceeding on 1 July 2019 in relation to an application for review of a visa for Mr Ameer (“Review Application”). Mr Shah said that Toost was the sponsor for Mr Ameer’s visa and that Toost paid for and gave the go-ahead for the Review Application: Transcript, pp 73-74. Mr Ameer disputed that Toost paid for the Review Application or any aspect of Ms Vitale’s services in relation thereto. It is evident from the 31 May 2019 Invitation to Attend Hearing letters sent by the AAT to Ms Vitale that Toost was the applicant for the Review Application. Unfortunately, other underlying documents, such as the Review Application itself, and the decision of the delegate of the relevant minister the subject of the Review Application: see Migration Act 1958 (Cth), s 347 (as at July 2019), are not before the Court.
The 2017 Employment Agreement prescribes that the “Term” of the 2017 Employment Agreement is “Permanent and ongoing once the 187 visa is granted”, and it would therefore appear that the visa class in issue was a class 187, or Regional Sponsored Migration Scheme visa (“RSMS” and “RSMS Visa” respectively): see Migration Regulations 1994 (Cth), Sch 2, cll 187.1-187.6.
Mr Shah’s evidence concerning what occurred at the AAT Proceeding is at [91]-[92] of Mr Shah’s second 8 June 2023 Affidavit and is as follows:
91.When Mr Fahad [Ameer] appealed to the Administrative Appeal Tribunal (AAT), I supported him. When the Member at AAT asked me about the employment contract where the package was $54,000 and I was completely shocked and had no answer as l had no knowledge of the contract which was submitted by Fahad to AAT and then Fahad interrupted and told the member that this wage of $54,000 would be implemented when the visa is granted. After hearing that I asked him why the member was talking about the employment contract to which Mr Fahad replied it was just a statement and that he forgot to let me know.
92.I have found later stage that the employment contract submitted by Mr Fahad to the AAT was created by Mr Fahad and he forged my signature without my knowledge or consent and submitted it to the Migration Agent.
In his 23 June 2023 Affidavit Mr Ameer responded to Mr Shah’s evidence about the AAT proceeding at [19] as follows:
In relation to paragraph 91 of Mr Shah's affidavit, this is a totally false recount of what occurred at the AAT hearing with respect to my visa application. My recollection is that when the Tribunal hearing commenced, the Tribunal member asked me to stay outside the court room for approximately 30 minutes while Mr Shah and Ms Vitale remained in the court room. When I entered the court room after 30 minutes, I sat on the other side of the court room to Mr Shah. I recall that the Tribunal member asked me questions about my job, such as my skills and start and finishing times. There was no dialogue of the kind described by Mr Shah in paragraph 91 of his affidavit.
In cross-examination concerning the AAT Proceeding Mr Shah said that:
(a)reference was made to Mr Ameer having a contract of employment with Toost with a wage of $54,000: Transcript, pp 76-77;
(b)at least two documents were provided to the AAT:
(i)first, the 2017 Employment Agreement; and
(ii)second, a letter dated 9 July 2019 addressed “To the Member of the Tribunal” and headed “RE: RSMS Nomination of Mr Fahad Ameer” (“RSMS Nomination Letter”):
(A)bears a TCS logo and an address for the Salisbury Store, but does not refer to Toost or the Toost ABN;
(B)is dated 8 days after the Tribunal Hearing;
(C)is purportedly signed by Mr Shah in his capacity as a director of Toost, but Mr Shah said he had never seen the RSMS Nomination Letter until it was provided to him on 2 November 2021 by Ms Vitale, in response to a request from Mr Shah for certain migration documents: Transcript, pp 69 and 83; see further at [55]-[56] below, and that the signature on the RSMS Nomination Letter purporting to be his is not his signature: Transcript, pp 69 and 83; and
(c)at the AAT Proceeding he did not see, and did not ask to see, the 2017 Employment Agreement, and it can be inferred he did not see the RSMS Nomination Letter, and that at this time he had “blind trust” in Mr Ameer: Transcript, pp 75-76. Mr Shah says that when, at the AAT, he asked Mr Ameer about the 2017 Employment Agreement, and seemingly about the $54,000 wage, he was told it was “just a statement”: Transcript, p 77.
Mr Shah denied that he had authorised another employee to sign the RSMS Nomination Letter on his behalf: Transcript, p 84.
Even to the lay observer examining the signatures with the naked eye it is apparent that the signatures on the 2017 Employment Agreement and the RSMS Nomination Letter are completely different, and it follows, that at the very least, one of them was not signed by Mr Shah. In all the circumstances, and having regard to Mr Shah’s evidence, the Court accepts that neither the 2017 Employment Agreement nor the RSMS Nomination Letter was signed by Mr Shah.
The documentary evidence as to what Mr Ameer was said to be paid or going to be paid for the hours to be worked at Toost is in the:
(a)2015 Employment Agreement which provides that Mr Ameer was paid $22.04 an hour for a base 38 hour week (or $837.52 per week, which equates (x 52.17857) to $43,700.60 per annum base salary);
(b)2017 Employment Agreement which prescribes a yearly salary of $54,000 for 38 hours work per week; and
(c)the RSMS Nomination Letter (dated 9 July 2019) which says that:
The RSMS contract shows a substantial pay increase. This wage is the wage Mr Ameer will be paid once the RSMS visa is approved. I offered this higher wage because once the visa is approved, he will be working for at least another two years full time in the business, ….
This wage is above the award wage and will commence once the visa is granted, …. Mr Ameer will be dedicated on a full time basis, …
The documentary evidence as to what Mr Ameer was actually being paid at Toost up to the time of the AAT Proceeding is contained in payslips (which are Toost documents bearing a TCS logo) which provide that from October 2018 to August 2019 Mr Ameer was still being paid $22.04 an hour for a base 38 hour week (as provided for in the 2015 Employment Agreement), that is, $43,700.60 per annum base salary. The “Annual Salary” recorded in the weekly pay slips for this period in the First Ameer Affidavit record annual salary figures of $40,399 to $50,499. The figure varies because it would appear that it is calculated in each pay slip according to what Mr Ameer earned in each week, which varied according to hours worked, annual leave taken, and shifts and overtime worked and the penalty rates paid for the shifts and overtime.
The Court notes that even when the hourly rate increased to:
(a)$22.70 in August 2019 (that is, $45,009.23 per annum base salary); and
(b)$23.09 in February 2021 (that is, $45,782.52 per annum base salary),
the base salary payable still did not approach the $54,000 referred to in the 2017 Employment Agreement, which was the salary that the AAT was seemingly advised was to be paid to Mr Ameer once the RSMS Visa was approved.
There is no evidence of a decision being made by the AAT on the Review Application, and the Court infers that no decision was made, possibly because the issue became moot when Mr Ameer obtained permanent resident status on 19 November 2019.
The Court notes that neither party sought to call Ms Vitale in relation to the AAT Proceeding, or at all.
Ms Vitale and the immigration documents, and the SDA and Mr Rosebury - October 2021 to 2 November 2021
Mr Shah gave evidence that prior to 28 October 2021 he had been contacted by Ms Vitale who had informed him that she had been contacted by the SDA, and that the SDA had requested that Ms Vitale not provide to Mr Shah migration documents related to Mr Ameer and other workers previously employed by Toost.
On 28 October 2021 the SDA sent to TCS as franchisor a letter (“SDA October 2021 Letter”) in which:
(a)it confirmed it was acting on behalf of four persons: three former employees and a current employee, Mr Ameer, of Toost;
(b)made numerous allegations in relation to alleged contraventions of the FW Act by Toost in respect of the underpayment of the four employees, and in so doing alleged that:
(i)employees sometimes worked seven days per week;
(ii)dummy rosters were provided to TCS as franchisor for “satisfaction of industrial system compliance”;
(iii)payslips were provided to employees which “did not reflect actual hours of work”;
(iv)flat daily rates of pay were paid to employees;
(v)all tax and superannuation paid for each employee as reflected on the employee payslips, was periodically collected from the employees by Mr Shah;
(vi)all annual leave payments paid to the employees were returned to Toost; and
(vii)Mr Ameer was misclassified as a level 3 rather than a level 6 under the GRI Award,
and the Court notes that for present purposes the above allegations are relevant only because they were made, and not as to their truth.
On 28 October 2021 TCS under the signature of Mr Rosebery wrote to Mr Shah (“TCS October 2021 Letter”) as follows:
Syed,
Re: Wage Underpayment and Cash Back Allegation, Toost Pty. Ltd. Trading as TCS Salisbury SA
We have received a credible, documented complaint from multiple former and current employees in relation to underpayment of wages, payment of cash wages and cash back payments. These are serious allegations that we will need to investigate.
I remind you of your obligations regarding Fair Work Act s340, the prohibition against taking adverse action against another worker. It is a serious offence to take action, dismiss, reduce shifts, threaten, interfere with, or take any other adverse action against an employee who makes a workplace complaint.
The proposed sale and purchase of TCS Salisbury will need to be placed on-hold until we resolve this complaint. Alternatively, we may require that all the proceeds of the sale of TCS Salisbury be held in trust by us, pending resolution of this complaint.
We will also place on hold any sale and purchase of other stores for which you are a director and guarantor until we resolve this matter.
We will provide further information to you in due course.
Yours sincerely
Ken Rosebery
MANAGING DIRECTOR
Mr Shah received the TCS October 2021 Letter on 28 October 2021: Transcript, pp 89 and 91.
Mr Shah’s evidence was that he received the TCS October 2021 Letter at a time when he:
(a)knew, from the “guys” in the “store”, that is from other employees in the Salisbury Store, that Mr Ameer had made a complaint: Transcript, pp 89-91; and
(b)had had no further dealings with Ms Vitale since 2019: Transcript, p 92.
Mr Shah admitted that he spoke to Mr Rosebury, the Managing Director of TCS, on or about 28 or 29 October 2021 concerning the matters raised in the SDA October 2021 Letter, and that he knew that Mr Ameer was one of the employees who was claiming to have been underpaid. Mr Shah also said that he was not concerned by the underpayment allegation, save that it caused him some embarrassment with TCS in relation to their centralised roster system called “Tanda”. Mr Shah however considered that the system implemented by TCS ensured that employees were paid what they were owed. It would appear details as to hours, shifts and overtime for employees were provided by franchisees to TCS, and that pay for the employees were calculated, and payslips prepared, by TCS in its capacity as franchisor, and then advised to franchisees, here Toost, to effect payment to employees.
On 29 October 2021 Mr Shah emailed Ms Vitale in relation to the migration documents (“Shah-Vitale Email”), not only for Mr Ameer but for “All my documents. Fahad Ameer and two more guys … Mohamed Sagit Saqib…[and] Mohamed Tasif”: Transcript, p 91, and for all of the documents submitted by Toost to the AAT: Transcript, p 94. The Shah-Vitale Email has a subject line which says:
Fahad Ameer and Mohamed Saquib
and then the relevant text of the email is as follows:
…I need your help please can you email me all paperwork from A to Z regarding immigration which we submitted in court and in immigration please charge me what cost to you I really need your help.
Mr Shah said in evidence that he did not request Mr Ameer’s migration documents alone, but the migration documents for all of the employees concerned.
Mr Shah said in evidence that he was concerned by the fact that Ms Vitale had rung him to advise that the SDA had requested that he not be provided with the migration documents, and that he thought that “something is wrong with the [migration] documents”, and he therefore requested that Ms Vitale provide them to him: Transcript, p 96. In evidence Mr Shah referred to his believing that there was something wrong with the migration documents because Ms Vitale had been requested not to provide the documents to him: Transcript, pp 96-98.
Mr Shah acknowledged in cross-examination that the October 2021 TCS Letter was “not talking about [migration] documents” but “talking about underpayment”, but that when he received the TCS October 2021 Letter “the situation a bit more clear to me. There is something wrong with the [migration] documents”: Transcript, p 97.
The Shah-Vitale Email is not inconsistent with Ms Vitale having earlier called Mr Shah and advised him that she had received a call from the SDA requesting that she not provide the migration documents to Mr Shah. It is to be remembered that English is not Mr Shah’s first language, and therefore some of the formalities which might attend an email written by an English first-language-speaking business person, such as referring to an earlier call from Ms Vitale, might not be included. Otherwise, the email is consistent with a request for Ms Vitale to help Mr Shah by providing him with the migration documents that they had earlier spoken about. The Court finds that Mr Shah did receive a call from Ms Vitale as outlined at [62] above.
On 2 November 2021 Ms Vitale forwarded the migration documents to Mr Shah by email from her business email, and they included the 2015 and 2017 Employment Agreements and the RSMS Nomination Letter.
Mr Shah took two to three days to look at all the migration documents, and by 5 November 2021 he had examined them and found that not only documents related to Mr Ameer bore a signature which purported to be Mr Shah’s signature but which was not his signature, but so too did the migration documents for Messrs Saqib and Tusif, and that the signatures which were not his he therefore believed to be forgeries: Transcript, pp 100-101. Mr Shah also had a meeting with Mr Rosebery at which Mr Rosebery advised that Mr Shah should seek legal advice if he wanted to take action against the employees who he considered had forged his signature on the migration documents. Mr Shah then determined to seek legal advice so that he could make a decision as to what steps he would take in relation to what he considered were forged signatures. That led Mr Shah to meet with his lawyer, Mr Khoury on 21 November 2021: Transcript, p 101. The Shah-Khoury Meeting is discussed further at [89]-[99] below.
Misappropriation of cash (8 to 25 November 2021)
On 8 November 2021 Mr Shah emailed Mr Ameer as follows:
Hi mr Fahad Ameer last week $150 cash is short I been informed from shop that you took it from tills why?
There was no response by Mr Ameer but on 10 November 2021 Mr Faraz emailed Mr Shah stating, among other things, that:
Just want to let you know Fahad Ameer returned the cash which he picked from Cash register on Friday 5/11/2021.
On 10 November 2021 Mr Shah then emailed Mr Ameer again:
Hi mr Fahad Ameer I received email from tcs [TCS] by mr Faraz which cash you took from till last week you returned to Faraz but my question still there why you took cash from till?
In an email of 22 November 2021 sent by Mr Ameer to Mr Shah, Mr Ameer had the opportunity to respond to the issue of the alleged misappropriation of cash, but Mr Ameer did not do so.
On 23 November 2021 Mr Shah emailed Mr Ameer, saying, amongst other things:
Please note in last instance you have collected cash money from the till and still not inform me why you did that?
There was no response, and on 25 November 2021 Mr Ameer was dismissed: see [108] below.
The further involvement of the SDA (11 to 24 November 2021)
The SDA 11 November 2021 Letter was in relation to claims about Toost’s alleged contraventions of the FW Act (including breaches of the GRI Award) and also contained a request for documents under s 535(1) of the FW Act. Toost did not reply to this letter.
It is evident from the SDA 11 November 2021 Letter that:
(a)it is specifically addressed to Mr Shah on behalf of Toost (albeit care of TCS), but was sent by email to Mr Shah’s email address;
(b)the SDA says it represents four employees alleged to have been underpaid;
(c)Mr Ameer is said to be the only one of those four persons employed by Toost still currently employed by Toost;
(d)it was alleged that there had been contraventions of the FW Act and the GRI Award by Toost in relation to:
(i)the failure to pay employees for all times worked;
(ii)the non-payment of personal leave to the employees;
(iii)the non-payment of annual leave to the employees;
(iv)the failure to pay public holiday penalty rates to the employees;
(v)the failure to pay overtime to the employees;
(vi)the mis-classification of employees; and
(vii)the provision of false and misleading pay slips;
(e)it foreshadows the possibility that pecuniary penalties will be sought against not only Toost, but company officers and employees personally involved in any contraventions; and
(f)seeks the provision to the SDA of documents including payslips, hours of work records and rosters.
The SDA 19 November 2021 Letter flagged that Mr Ameer would proceed with legal action against Toost if matters relating to the claim were not resolved. Toost did not reply to this letter.
On 22 November 2021 at 12:21pm the SDA sent an email to Toost with a link to a Google Drive which contained materials in support of Mr Ameer’s underpayment claim against Toost.
On 23 November 2021:
(a)Mr Shah sent an email to the SDA requesting access to the Google Drive;
(b)access to the Google Drive was granted;
(c)Mr Shah wrote to Mr Ameer asserting that he was not following the roster: see [106] below; and
(d)Edmond Khoury Solicitors, acting on behalf of Toost, wrote to the SDA (“Khoury Solicitors’ 23 November 2021 Letter”) confirming that they requested four weeks in which to provide all of the information requested in the SDA 11 November 2021 Letter.
On 24 November 2021 the SDA responded (“SDA 24 November 2021 Letter”) to Khoury Solicitors’ 23 November 2021 Letter asking for a response by close of business on 25 November 2021 and:
(a)asking whether Edmond Khoury Solicitors acted for Mr Shah personally in relation to the matter;
(b)seeking confirmation that Toost would not sell the Salisbury Store business (the sale of which had apparently been flagged as imminent: see [64] above);
(c)requesting that Mr Shah not take any further action to sell the Salisbury Store business;
(d)requesting that if Mr Shah sold, or undertook any further steps to sell, the Salsibury Store business, that Mr Shah accept personal liability for any underpayment a court or tribunal found against Toost in relation to the four allegedly underpaid employees (including Mr Ameer); and
(e)enquiring as to the existence and provision of the documents and records referred to in the SDA 11 November 2021 Letter.
On 25 November 2021:
(a)Khoury Solicitors responded (“Khoury Solicitors’ 25 November 2021 Letter”) to the SDA 24 November 2021 Letter:
(i)rejecting the assertions in the SDA 11 November 2021 Letter;
(ii)advising that “the facts will show the four represented workers owe our clients monies which they have taken from our client because of fraudulent claims made by them”; and
(iii)advising that “we have handed to the NSW Police and the Department of Immigration the Employment contracts with [sic] allegedly shows our client signature forged by your client being purported documents of employment contract presented to the Department of Immigration for visa purposes”; and
(b)Toost terminated Mr Ameer’s employment at 12.05 pm: see [108] below.
Mr Shah expressly denied that Mr Ameer’s employment was terminated because he had gone to the SDA and because the SDA proposed to take legal action against Toost and or Mr Shah: Transcript, pp 121 and 123.
The Shah-Khoury Meeting
Mr Shah gave evidence that after he had determined that the signatures on the migration documents were not his (or, as he put it, they were forgeries) he arranged the Shah-Khoury Meeting which he said took place on 21 November 2021.
Based primarily on the lack of documentation concerning the Shah-Khoury Meeting it was put to Mr Shah and Mr Khoury in cross-examination that there was no such meeting, but both re-asserted, and were not moved from the fact that there was such a meeting: Transcript, pp 101, 108, 132 and 138; and Mr Khoury also gave affidavit evidence to that effect: Affidavit of Edmond El Khoury, sworn 2 August 2023 (“Khoury August 2023 Affidavit”) at [2]. The Court accepts that Mr Shah and Mr Khoury met on or about 21 November 2021. The more difficult issue to determine is what issue or issues were discussed and, ultimately, whether the discussion at the Shah-Khoury Meeting reveals anything in relation to Toost’s or Mr Shah’s reasons for terminating Mr Ameer’s employment.
It is convenient to first set out the content of the Khoury August 2023 Affidavit which runs to seven paragraphs, as follows (without amendment):
1. I am the legal represntative of the Respondents on record.
2.On and about 21 November 2021, I had a conference with Mr Syed Zaheer Ahmed Shah the director of Toost Pty Ltd at my office and we reviewed all of the documents provided to him by email from Ms Samantha Vitale.
3.Mr Shah said to me, "I did not sign these documents." The documents we were looking at, at the time, were
a) Employment Agreement Schedule 1 dated pt January 2015.
b) Timesheet dated 1st Novemebr 2016.
c) Certification from-Paying for Visa sponsorship dated 9 March 2017.
d) Individual Employment Agreement dated 13 February 2017.
e) Timesheet dated 17 August 2018.
f) Letter to the Member of the Tribunal dated 9 July 2019.
4.Mr Shah also siad to me, "there is also money missing each week, I asked Fahad Ameer about missing $150 and he has not given me an answer."
5.Mr Shah said to me, "can I dismiss Fahad Ameer as he has used my forged signature and has taken money?"
6. I said, "yes, you can dismiss Fahad for this, these are very serious matters."
7.On and about 25 November 2021, Mr Shah advised me that the notice of termination of the employment contract had been sent to Mr Ameer by email.
In cross-examination Mr Shah gave evidence that:
(a)“I provided this documents, and then he advised me, then further action I took”: Transcript, p 108;
(b)he determined to terminate Mr Ameer after he had received “advice”, which was oral advice, from Mr Khoury: Transcript, pp 109 and 126; and
(c)Mr Khoury’s advice was that the allegations of forgery and misappropriation of cash were serious allegations for which Mr Ameer could be terminated: Transcript, p 110.
It is plain from the evidence about the Shah-Khoury Meeting that:
(a)no written advice was provided to Toost by Edmond Khoury Solicitors, ostensibly because it was a “first meeting”: Transcript, p 125;
(b)Mr Khoury took no note of the Shah-Khoury Meeting, ostensibly because it was a “first meeting”: Transcript, p 125; and
(c)no invoice was ever issued by Edmond Khoury Solicitors in relation to the meeting, but Toost did later pay an amount into the trust account for Edmond Khoury Solicitors: Transcript, pp 108-109 and 127.
Mr Shah was cross-examined concerning the fact that he did not terminate Mr Ameer immediately upon obtaining advice from Mr Khoury that the allegations of forgery and misappropriation of cash were sufficient to warrant termination of Mr Ameer’s employment. Mr Shah explained that:
(a)Mr Ameer had been employed with Toost for a long time, “so I feel even sorry for him as well”: Transcript, p 110;
(b)Mr Ameer had been, prior to the allegations of forgery and misappropriation of cash, a “trustworthy person for me”: Transcript, p 110;
(c)having cleared the “legal side” (that no illegality or injustice was being done to Mr Ameer) he made up his to terminate Mr Ameer on 25 November 2021: Transcript, p 111;
(d)before terminating Mr Ameer he wanted to give Mr Ameer a “fair chance” to respond to the allegation relating to misappropriation of cash (which had been made before he obtained Mr Khoury’s advice), and that he kept asking Mr Ameer to explain it, and “[h]e doesn’t explain to me this thing” and “I still giving him the chance till I terminate him”: Transcript, pp 113 and 115; and
(e)he did not raise the issue of forgery with Mr Ameer because it was “important that one, that I will spoke, when the time will come, about this one”, and he had legal advice that it was a serious allegation: Transcript, pp 113-115.
Mr Shah’s explanations at (a) to (d) of the previous paragraph might not be how every employer might react in the circumstances, but in the Court’s view, and having seen Mr Ameer make his explanations in the witness box, the explanations are plausible, and the Court accepts that they represented Mr Shah’s views at the time and that he acted accordingly. The explanation at (e) of the previous paragraph was somewhat convoluted. It appears to the Court that what Mr Shah was saying was that he did not raise the issue of forgery of the signatures on the migration documents with Mr Ameer because:
(a)it was not an issue which had already been raised with him (unlike the misappropriation of cash); and
(b)he had legal advice that the issue was serious and warranted termination of employment,
it was then not necessary to raise it prior to any advice to Mr Ameer that his employment was being terminated. Once again, in the Court’s view, and having seen Mr Shah give the explanation, the Court considers that Mr Shah’s explanantion is plausible, and the Court accepts that it represented Mr Shah’s view at the time and that he acted accordingly.
Mr Khoury’s account of the Shah-Khoury Meeting in the Khoury August 2023 Affidavit is set out at [91] above. Mr Khoury was not an impressive witness, and nor did his evidence reveal him to be a model modern day solicitor in terms of record keeping in relation to client consultation and the sending of invoices. Nevertheless, the substance or gist of his evidence on the critical issue of the reasons upon which Mr Shah sought his advice, namely whether he could terminate Mr Ameer on the basis of the alleged forging of signatures on the migration documents and the alleged misappropriation of cash, were matters upon which his evidence remained constant, and his credibility in that regard ought not be impugned by reference to extraneous matters.
In cross-examination Mr Khoury did not deviate from the explanation of the Shah-Khoury Meeting given in the Khoury August 2023 Affidavit, maintaining that he only gave advice thereat about the “documents” and the “missing money”. In cross-examination Mr Khoury said that, although he was aware of the alleged underpayments, he did not give advice concerning the alleged underpayment in the Shah-Khoury Meeting: Transcript, pp 128-130 and 132.
As set out above at [87] Mr Khoury gave evidence about the Khoury Solicitors’ 25 November 2021 Letter, but as is evident from the reasons set out at [96] above what was said in the Khoury Solicitors’ 25 November 2021 Letter was not relevant to what occurred at the Shah-Khoury Meeting.
For the reasons set out above the Court accepts that at the Shah-Khoury Meeting the matters raised by Mr Shah and upon which Mr Khoury gave advice were limited to:
(a)Mr Ameer’s alleged misappropriation of cash; and
(b)the alleged forgery of Mr Shah’s signature on the migration documents.
Police Report
Mr Shah gave evidence that after the Shah-Khoury Meeting he made a report to the New South Wales Police Force (“Police Report” and “NSW Police” respectively) about the alleged forging of documents and cash alleged to have gone missing from the Salisbury Store business. Relevantly, the Police Report:
(a)bears a “Time & Date of report” of “13 Feb ‘17/0600’”;
(b)an “Event Number” of E84884026; and
(c)a record of the “Message/Details” as follows:
“13 Feb ’17-26 Oct ‘18”.
forging signature
followed by what appears to be (seemingly in a different hand to the remainder of the Police Report) Mr Shah’s mobile telephone number.
In cross-examination Mr Shah said he actually made two reports to the NSW Police, the first concerning the forged documents (which would appear to be the Police Report) and the second concerning misappropriated cash, and that Mr Shah said that he made these reports after the Shah-Khoury Meeting on 21 November 2021: Transcript, pp 79-80. Mr Shah suggested that the forged documents and misappropriated cash were in the “same police report” because when he made the second report concerning the misappropriated cash he was given the same number: Transcript, p 79, the latter presumably being a reference to the Event Number in the Police Report. If another police report was made there is no evidence of it in any of the affidavits filed in these proceedings. Nor does the Police Report itself refer to the misappropriated cash.
The Court accepts that Mr Shah made two reports to the NSW Police (there is no evidence to the contrary). One report was obviously with respect to the alleged forgery, and that is reflected in the Police Report in evidence. The other report was concerning the misappropriation of cash, but there is no police report in evidence in relation thereto.
The fact that both the alleged forgeries and the alleged misappropriation of cash were reported to the NSW Police sometime after the Shah-Khoury Meeting on 21 November 2021 but prior to Mr Ameer’s termination of employment on 25 November 2021 confirms that these were matters of significant concern to Mr Shah prior to the termination of Mr Ameer’s employment.
The roster issue (22 and 23 November 2021)
On 22 November 2021 at 9:12 am Mr Shah sent an email to Mr Ameer stating (reproduced verbatim):
Hi mr Fa had Ameer many time formal request issued and displayed on notice board for all employees that please follow roster accordingly Tanda but you not following up from couple of weeks i hope from your end this will not happen this week
Thanks
Syed
On 22 November 2021 at 12:57 pm Mr Ameer sent an email to Mr Shah, in reply to the email of 22 November 2021 at 9:12 am. Mr Ameer’s reply email stated (reproduced verbatim):
Hi Syed,
I have always worked according to the hours that you directed me to work.
You have not provided me formal requests to work according to the Tanda roster. You have previously always directed me to work many hours in addition to the Tanda roster. Can you please provide me evidence of the previous requests?
Because I have worked these further hours on such a regular basis (as shown in my recent payslips), if you wish to change my regular roster (the hours you have actually directed me to perform) then you should consult with me according to the Retail Award at clause 35.
In goodfaith, I will work according to the roster in Tanda, but still request you comply with the Retail Award clause 35 and provide the required consultation about this change.
Thanks
Fahad
On 23 November 2021 at 2:34 pm Mr Shah sent an email to Mr Ameer stating (reproduced verbatim):
Hi Fahad
As you know that I have never directed any working hours other than the Roaster and Tanda and you know clearly that this is our company policy to follow the roaster and Tanda which is also displayed on the notice board.
All the staff have been formally informed to follow the system brought by the franchisor.
Instead of you asking me to provide me the details of the working hours which I have directed, I want you to provide me the evidence where I have directed you?
If you do not follow these rules then you will be in breach of the Franchisee policies.
Please note that in fst instance you have collected cash money from the till and still did not inform me why you did that?
"Strictly follow the company rules"
Thanks
Syed
Mr Shah gave evidence that at the time he sent the email of 22 November 2021 to Mr Ameer he had not yet decided to terminate Mr Ameer’s employment (based on the reasons set out at [94] above), and that he reiterated Mr Ameer’s roster obligations (to comply with Tanda) because Mr Ameer was required to comply with the Tanda roster whilst he remained employed and because there was a “head office” (the franchisor, TCS) policy requiring compliance with Tanda for which Toost was answerable to TCS: Transcript, pp 111-113.
Termination of Mr Ameer’s employment
At 12.05 pm on 25 November 2021 Mr Shah emailed Mr Ameer advising him as follows (“Termination Email”):
Hi Mr Fahad Ameer
This email is to inform you that you have been terminated today at 12pm on the ground mentioned below:
1. Persistent breaches of your terms of employment
2. Serious breach of company’s policies and
3. Serious misconduct that bring the company in to disrepute.
At the time of your appointment as an employee, you have been informed about the Terms and Conditions which clearly stated the code of conduct and you have breached the Terms of the Agreement.
We have enough evidence of the fraudulent activities that has occurred and we have handed the evidence in this matter to the NSW Police for further investigations.
You should hand over any company items such as keys, badges and uniforms and collect your personal items before you leave the premises.
…
Post termination – the SDA and Ms Vitale
Mr Satchell gave evidence that he was the only lawyer or legal representative at the SDA who had carriage and conduct of this matter, and that he had a telephone discussion with Ms Vitale on 25 February 2022 and that he did “not recall any other discussions with Ms Vitale”. Mr Satchell’s note of the 25 February 2022 telephone discussion (“Mr Satchell’s Telephone Conversation Note”) is as follows (reproduced verbatim save for Ms Vitale’s business email):
2022.02.25 – Cheesescake Shop – PC with Samantha Vitalli, Immigration Agent
PC with Samantha – ES explained the background to the matter – she indicated she was unaware of the matter – she stated she was potentially conflicted in some ways as had also assisted the employer – she stated she had never experienced anything like this before despite lengthy career in this industry – from her perspective she had not dealt with the clients in years
… [Ms Vitale’s business email omitted]
Later on 25 February 2022 Mr Satchell sent an email to Ms Vitale referring to Toost’s response in these proceedings and the allegations of forged signatures on the migration documents, and requesting, on behalf of the SDA, “the following”:
All documentation my clients submitted as part of the migration application;
All correspondence and documents from federal departments regarding the above workers applications;
Confirmation as to whether the employer Toost … has raised any concerns regarding potential fraud relating to my clients’ applications;
Confirmation as to whether you are aware of any concerns regarding potential fraud relating to my clients’ applications.
It appears that Ms Vitale did not respond to the SDA as on 18 July 2022 Mr Satchell emailed Ms Vitale indicating that he had telephoned Ms Vitale but was unable to get through and requested that Ms Vitale “provide the documents requested and provide response to” the 25 February 2022 email. There is no evidence of any response from Ms Vitale.
CONSIDERATION
Mr Shah steadfastly maintained that the reasons for the termination of Mr Ameer’s employment were the alleged forged documents: that is, the 2015 and 2017 Employment Agreements (and perhaps more correctly, the forged signatures), and the alleged misappropriation of cash: Transcript, pp 70 and 121. In relation to this issue the Court has found that Mr Shah did not sign either the 2015 or 2017 Employment Agreement.
There is no dispute that Mr Ameer had and exercised a workplace right with respect to the matters complained of by the SDA or that the dismissal of Mr Ameer was adverse action. The question remains, however, whether the adverse action was taken for a prohibited reason.
The inquiry to be made is an inquiry into the mental state of the decision-maker or decision-makers: Barclay at [140] per Heydon J, and merely because a decision-maker proceeds on the basis of a misunderstanding of the true facts does not establish that the relevant decision or actions constituting adverse action were taken for prohibited reasons: Musgrove; Mishra at [62] and [66] per Judge McNab; Chia at [91]-[92] per Judge Taglieri.
The reasons given by Toost through Mr Shah for the termination of Mr Ameer’s employment relate solely to the forging of the migration documents and the misappropriation of cash, the latter being a responsibility that Mr Ameer had given up, and although in November 2021 Mr Ameer returned a sum of money ($150) taken earlier from the till at the Salisbury Store, he never explained to Mr Shah why he took the money, or, indeed, why he returned it: Transcript at pp 86 and 119. That these two reasons were the substantial and operative reasons for the termination of Mr Ameer’s employment is corroborated or supported by other evidence, including:
(a)the evidence of Mr Khoury, who although not a strong witness, and one who was unsure about many things, and who was not in his conduct of the matter a model solicitor, nevertheless in the gist of his factual account corroborated the reasons given by Mr Shah. There was no basis upon which it could properly be suggested that the gist of Mr Khoury’s evidence in this regard was either wrong or the subject of invention;
(b)by the reports made to the NSW Police with respect to the alleged forging of the migration documents and the alleged misappropriation of cash (albeit that the alleged misappropriation of cash in the reports involved other employees and much larger sums than the $150 taken and returned by Mr Ameer in the latter weeks of his employment); and
(c)the evidence about the discovery of the forged signatures on the migration documents following on from the telephone discussion between Ms Vatale and Mr Shah and the Shah-Vitale Email, which the Court has found to be a plausible account, and which the Court finds would be a proper basis for the concerns held by Mr Shah in relation to the forging of his signature on the migration documents.
On the above bases, Mr Shah, whose evidence the Court finds to be reliable, and on the preponderance of the evidence as a whole, has discharged the burden under s 361 of the FW Act.
There were other matters referred to suggesting that the evidence contradicted the reasons given by Mr Shah for terminating Mr Ameer’s employment, but in the Court’s view those reasons did not do so.
First, the fact that the SDA was making claims was:
(a)not a matter about which Mr Shah was worried as he had faith in the Tanda system to deal with issues concerning payment, shifts and rosters; and
(b)the mere fact that the SDA was making and progressing the underpayment claim did not preclude Mr Shah from making up his mind to terminate Mr Ameer on the basis of the forged signatures on the migration documents or the misappropriation of cash by Mr Ameer, and to do so without regard to the matters raised by the SDA, and that is, in the Court’s view the manner in which Mr Shah went about making up his mind to terminate Mr Ameer’s employment.
Second, the fact that Mr Shah requested that Mr Ameer comply with the roster just days before he decided to terminate Mr Ameer’s employment is not indicative of Mr Shah subsequently deciding to terminate Mr Ameer’s employment because of the claims made by the SDA. As Mr Shah explained, and the Court accepts, he considered over a number of days whether or not to terminate Mr Ameer’s employment, and in the meantime, needed to ensure that Mr Ameer complied with the relevant roster, and hence requested that he do so. There is nothing in Mr Shah’s conduct in this regard which would suggest that the termination was other than for the reasons he gave, which were not prohibited reasons.
Third, the fact that Mr Shah did not terminate Mr Ameer’s employment for some time after the Shah-Khoury Meeting, and after he was satisfied that he could legally do so, was explained by Mr Shah on the basis of the trust that he had previously reposed in Mr Ameer over a long time, and that Mr Ameer had been a long-time employee, and that Mr Shah thought that he was entitled to consider, and Mr Ameer was entitled to consideration of, Mr Ameer’s employment status, and whether his employment ought to be terminated. In the end, it was a combination of the alleged forging of the signatures on the migration documents which Mr Shah believed was done by Mr Ameer, and the alleged misappropriation of cash, which Mr Ameer failed to give an explanation about when afforded the opportunity to do so: Transcript at pp 86 and 119, which resulted in Mr Shah terminating Mr Ameer’s employment.
Fourth, the basis for Mr Shah seeking out the migration documents was in the Court’s view plausible, and the Court accepts that he was contacted by Ms Vitale in relation to the migration documents. The explanation given by Mr Satchell as to the contact that he had, on behalf of the SDA, with Ms Vitale, does not preclude the possibility that Ms Vitale contacted Mr Shah and communicated with Mr Shah in the terms to which Mr Shah deposed. Indeed, if what is written in Mr Satchell’s Telephone Conversation Note as to what Ms Vitale told Mr Satchell in February 2022 is correct as what was said to Mr Satchell, Ms Vitale had either forgotten about certain events, or was being very coy in her recollection of contact with Mr Shah. In particular, Mr Satchell’s Telephone Conversation Note, records Ms Vitale as saying to Mr Satchell in February 2022 that “from her perspective she had not dealt with the clients in years”, whereas it is not in dispute that, at an absolute minimum, Ms Vitale had been emailed by Mr Shah and had sent Mr Shah the migration documents just four months previously in October 2021. In any event, it is plain that Mr Shah had concerns about the migration documents as early as 29 October 2021 when he emailed Ms Vitale for assistance in providing the migration documents, and it was only once he was provided with the migration documents that he arrived at the conclusion that his signature had been forged on those documents. That conclusion, which is part of the operative and substantial reason for terminating Mr Ameer’s employment, is not in any way contingent upon whether Ms Vitale contacted Mr Shah first (although the Court accepts that she did), and as the Court has observed it is the case that, on the evidence of both Mr Shah and a non-forensic plain viewing of the migration documents at least one, and probably both, of Mr Shah’s signatures on 2015 and 2017 Employment Agreements for Mr Ameer are not Mr Shah’s signatures. It was the fact of the alleged forgery that constituted the basis for the operative and substantial reason related to the migration documents, and in those circumstances how Mr Shah came into possession of those documents is strictly irrelevant.
Finally, the Court notes that the SDA submitted that the Respondents’ failure to call Ms Vitale to give evidence meant that her evidence would not have supported Mr Shah’s assertion that Ms Vitale rang him in relation to the migration documents. The same might be said of the SDA’s failure to call Ms Vitale to give evidence about what she allegedly said to Mr Satchell which was said to support the SDA’s case that she did not have the asserted contact with Mr Shah prior to Mr Shah emailing her on 29 October 2021. In the end the Court has concluded that the fact that neither Mr Ameer nor the Respondents called Ms Vitale to give evidence is critical, and at most it might indicate a concern by both Mr Ameer and the Respondents that Ms Vitale’s evidence would not have assisted them: compare Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278; [1959] ALR 367, CLR at 308 per Kitto J, 312 per Menzies J and 321-322 per Windeyer J.
In all of the above circumstances the Court is satisfied that Toost has discharged, on the basis of Mr Shah’s evidence, corroborated by that of Mr Khoury and the contemporaneous documents, the burden under s 361 of the FW Act, and that the operative and substantial reasons for the termination of Mr Ameer’s employment were as stated by Mr Shah, that is, as being in relation to the alleged forged signatures on the migration documents and the alleged misappropriation of cash.
It follows therefore that there was no contravention of ss 340 or 346 of the FW Act by Toost, or by Mr Shah as an accessory, and the Application must therefore be dismissed.
CONCLUSION AND ORDERS
The Court has concluded that there was no contravention of ss 340 or 346 of the FW Act by Toost, or by Mr Shah as an accessory, and the Application will be dismissed. There will be an order accordingly.
If either party, having considered the limitations imposed by s 570(2) of the FW Act, seeks costs (including reserved costs) an application for costs may be made within 28 days: see Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 22.02(1)(b).
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 August 2025
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