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)
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- AGLC
- Ameer v Toost Pty Ltd (No 2) [2025] FedCFamC2G 1317
- Case
- [2025] FedCFamC2G 1317
- Decision Date
CaseChat Overview and Summary
The court noted that under the Fair Work Act, a prohibited reason for adverse action must be a substantial and operative factor in influencing the adverse action. The court had to determine the real reasons for the alleged adverse action and whether it was taken for a prohibited reason, without considering whether the reasons for the alleged contravention were fair or unfair. The court considered the uncontentious facts, Mr Ameer's submissions, and the evidence provided by both parties.
Ultimately, the court found that there was no contravention of sections 340 or 346 of the Fair Work Act by Toost or by Mr Shah as an accessory. The reasons provided by Toost and Mr Shah for terminating Mr Ameer's employment were not prohibited reasons, and the applicant had not established the necessary elements for a contravention of the general protections provisions. Consequently, the application was dismissed, and an order was made accordingly. If either party sought costs, an application for costs could be made within 28 days.
Orders
Orders of the court
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
1.
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
2.
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
3.
A number of preliminary issues were dealt with on the first day of the hearing.
Pleading
4.
For reasons which are not apparent at no stage during the interlocutory processes in these proceedings were formal pleadings ordered to be filed.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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 …
11.
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.
12.
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.
13.
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
14.
Mr Ameer sought that Notices to Produce dated 19 July 2023 and 24 July 2023 issued by the Respondents be set aside.
15.
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
16.
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
17.
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”).
18.
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
19.
It is convenient to first set out some of the law with respect to the relevant general protections provisions of the FW Act.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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”).
25.
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.
26.
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.
27.
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.
28.
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.
29.
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.
30.
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.
31.
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.
32.
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.
33.
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).
34.
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
35.
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
36.
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.
37.
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.
38.
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)
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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 SAWe 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 sincerelyKen RoseberyMANAGING DIRECTOR Mr Shah received the TCS October 2021 Letter on 28 October 2021: Transcript, pp 89 and 91.