Manti v Michail Trust, Peter Newland Nominees Pty Ltd
[2025] FedCFamC2G 957
•19 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manti v Michail Trust, Peter Newland Nominees Pty Ltd [2025] FedCFamC2G 957
File number(s): ADG 200 of 2023 Judgment of: JUDGE BROWN Date of judgment: 19 June 2025 Catchwords: INDUSTRIAL LAW – General protections application – whether there were misleading and deceptive inducements made by the employer – whether the complaints made by the applicant fall within the definition of a complaint or inquiry – whether those complaints satisfy and fall within the definition of workplace right pursuant to section 341(1)(c) – whether there were multiple decision makers involved in the applicant’s dismissal – what was the substantive and operative reason for the applicants dismissal – is that reason protected or prohibited under the Fair Work Act – whether the applicant was dismissed within the probationary period - evidentiary matters to be considered Legislation: Acts Interpretation Act 1901 (Cth)
Competition and Consumer Act 2010 (Cth) Schedule 2 cl 18, 31
Electronic Transactions Act 1999 (Cth)
Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 44, 340, 341, 342, 351, 358, 360, 361, 539, 546, 550
Cases cited: Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243
CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014
CFMEU v De Martin & Gasparini Pty Ltd [2017] FCA 1046
Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421
Elliott v Kodak Australiasia Pty Ltd [2001] FCA 1804
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Fox v Percy (2003) 214 CLR 118
FWO v Devine Marine Group Pty Ltd [2014] FCA 1365
Gibbs v Palmerston Town Council [1987] FCA 477
Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Kendall v Fortescue Metals Group [2021] FWC 5231
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Macutova v Nunn Media Pty Ltd [2017] FCCA 2336
Prigge v Manheim Fowles Pty Ltd [2010] FWA 28
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184
Qantas Airways Limited v Australian Transport Workers Union of Australia [2023] HCA 77
Wong v National Australia Bank [2021] FCA 671
York v Lucas [1985] HCA 65
Division: Division 2 General Federal Law Number of paragraphs: 318 Date of last submission/s: 30 January 2025 Date of hearing: 28, 29 ,30 January 2025 Place: Adelaide Counsel for the Applicant: Self-represented litigant Counsel for the Respondents: Ms Stewart Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 200 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRANK MANTI
Applicant
AND: MICHAIL TRUST, PETER NEWLAND NOMINEES PTY LTD
First Respondent
PETER GILSMORE
Second Respondent
SEAN GILSMORE (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The Applicant’s application filed on 10 July 2022 is dismissed.
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 BROWN:
INTRODUCTION
These reasons for judgment relate primarily to a general protection application brought by Frank Manti,[1] against his former employer, Peter Newland Nominees Pty Ltd, the corporate trustee of the Michail Trust,[2] pursuant to the provisions of the Fair Work Act 2009 (Cth).[3]
[1] Hereinafter referred to as “the Applicant” or “Mr Manti”.
[2] Hereinafter referred to as “the First Respondent” or “the Group” or “Jamiesons”.
[3] Hereinafter referred to as “the FWA” or “the Act”.
In brief, Mr Manti asserts that he was subject to illegal adverse action because he engaged his workplace right to complain to his employer about various aspects of his employment by the first respondent, which included that he personally had been subject to homophobic and demeaning comments, in the workplace and had pointed out several significant deficiencies in its accounting practices, which irritated management.
In addition, Mr Manti alleges that he was subject to adverse action in the workplace because he was discriminated against because of issues related to his inferred sexuality and disability because of his weight in contravention of section 351 of the Act.
Thereafter, either individually or in tandem with one another, the other respondents, who each held managerial roles at Jamiesons, decided to terminate his employment because they were affronted at what must be regarded as Mr Manti’s legitimate complaints. In these circumstances, it is Mr Manti’s position that the reason for his dismissal cannot be regarded as legitimate and any assertion to the contrary is a subterfuge.
In these circumstances, Mr Manti seeks compensation for his loss of employment in an amount of approximately $130,000.00, as he was not able to obtain alternative employment immediately and also was put to expense because he had purchased a property in Adelaide in anticipation of been employed for a lengthy period in the city; damages for hurt and distress, as well as exemplary damages; and the imposition of fines on each of the respondents concerned.
Ancillary to the principle aspect of his claim, the Applicant has further alleged that he was provided with false and misleading statements by Jamiesons, which induced him to enter the relevant contract of employment in the first place; and further that it has breached provisions of the Act, which relate to the National Employment Standards, namely that he was not provided with the correct amount of accrued holiday leave, when he left the Group’s employ.
On the other hand, it is the position of Jamiesons and each of the executives concerned that Mr Manti was not able to discharge his responsibilities at Jamiesons competently; had an abrasive and confrontational management style, which had alienated a number of valued and long-standing staff members; and in these circumstances, it was legitimately decided that he was not a correct fit with the Group’s requirements and should be dismissed.
Essentially, Jamiesons asserts that Mr Manti’s employment was terminated for legitimate and unequivocally apparent reasons – namely, he could not do his job and was a threat to the on-going viability of the Group.
In addition, it is submitted, on behalf of the Group, that it was contractually entitled to do what it did because the relevant decision was made in Mr Manti’s period of probationary employment which was unambiguously stipulated in the relevant employment agreement. In these circumstances, the Group seeks the dismissal of the claim against it.
It disputes that it made any misleading or deceptive statements to induce Mr Manti to give up his prior employment and join its Finance Group in Adelaide. It concedes that it may have made some technical errors in the calculation of Mr Manti’s leave entitlements and asserts that these have now been rectified but, in the greater scheme of things, these errors are insignificant, particularly given that it asserts that the Group did in fact overpay Mr Manti.
BACKGROUND
On 27 September 2022, Mr Manti executed a contract of employment with the Jamieson Group to become its chief financial officer “CFO” commencing on 26 October 2022.[4] The offer of employment, which was accepted by Mr Manti, was made by the Second Respondent, Peter Gilsmore, who is described as the Owner and Chairman of the Jamieson Group of Companies.[5]
[4] See Exhibit A.
[5] Hereinafter referred to as “Peter Gilsmore” or “Peter”. No disrespect is intended as the use of first names is intended to avoid confusion.
There is no controversy that the First Respondent is the formal entity which controls and has legal responsibility for the Jamieson Group, which designs and supplies specialist road transport vehicles.
The agreement envisaged Mr Manti heading up the finance, administration, human resources, legal and all key commercial matters at the Group and reporting to Peter Gilsmore and the Third Respondent, Sean Gilsmore,[6] Peter’s son, who was the managing director of the Group.
[6] Hereinafter referred to as “Sean Gilsmore” or “Sean”. In this regard see above.
There is no doubt that Mr Manti started at the Jamieson Group on 26 October 2022 after having given up a position, as an accountant, at a firm in Melbourne, where he had lived for many years.
It is Mr Manti’s position that the job he had given up in Melbourne was well remunerated and it was a significant decision for him to contemplate a move from there to Adelaide, which would potentially also include him having to relocate his home from Melbourne to Adelaide.
In this context, during the exhaustive and lengthy pre-employment negotiations, which began on 10 August 2022 and which involved a recruitment consultant – Michael McGrath – several interviews with members of the First Respondent, including Peter and Sean Gilsmore and a visit to its business premises, Mr Manti alleges that several representations were made to him, concerning his prospective employment, at the Jamiesson Group, which included:
·his eligibility for financial incentives,
·fly-in/fly out arrangements prior to any relocation by him to Adelaide,
·payment of relocation expenses generally;
·provision of financial assistance to help him obtain a permanent home in Adelaide;
·assurance that he would not incur any financial loss, if he moved to Adelaide;
·whilst at the same he would be obliged or pressured to move permanently to Adelaide;
·the security of his position, particularly in the context of any sale of the business; and
·the financial viability of the Group generally but also in the context of any potential sale of the Group;
which were false and misleading in nature and which had the consequence of inducing him to take up the offer of employment.
As a result of these alleged false and misleading representations, Mr Manti asserts that the Jamieson Group has contravened clause 18 and particularly clause 31 of the Australian Consumer Law, which prohibits any person from misleading another seeking employment in respect of the terms and condition relating to such employment.
The agreement reached between the Applicant and the Jamieson Group was that Mr Manti would receive a base salary of $200,000.00 per annum plus 10.5% superannuation. He would be paid monthly and work on a full-time basis. The agreement is silent in respect of relocation expenses and FIFO arrangements.
Leave entitlements were stipulated to be in accordance with the National Employment Standards, but included 20 days of annual leave per annum, with any untaken accrued leave to be paid out on termination.
In this context, Mr Manti further alleges that the First Respondent has breached the National Employment Standards,[7] by failing to pay him his untaken accrued leave, when he ceased employment with the Jamieson Group.
[7] The “NES”.
In addition, he asserts that he had been promised a bonus of $13,000.00 by Peter Gilsmore, in January of 2023 to enable him to complete the purchase of a property in Adelaide, which was not subsequently honoured by him. Peter acknowledges that there were some cursory discussions, about the purchase, between him and Mr Manti but they were never finalised and Mr Manti was able to purchase the property, in any event, without any assistance from him.
He asserts that this failure engages section 44 of the FWA, which renders it a civil remedy provision leaving the Jamieson Group liable to the imposition of a fine as a consequence of any breach of the NES. He also seeks the payment of his accrued leave entitlements. During the hearing of the case, counsel for the Jamieson Group conceded that Mr Manti had not been paid all his leave entitlements.
However, its position was that the shortfall involved was modest and arose because of other controversies relating to expenses claimed by Mr Manti, which it had paid. It was also the Group’s position that it had paid Mr Manti to the end of April 2023, when he had left its employ a few days’ before, after he had not attended for work, since his termination. In these circumstances, the parties were able to reach an agreement as to the sum due to Mr Manti and Ms Stewart (counsel for the respondents) indicated the sum in question would be paid.
The relevant contract of employment was subject to a probationary period of six months. Specifically, it reads as follows:
Your employment will be subject to the probationary period set out in the Employment Details. During this time either you or the Employer may terminate your employment for any reason by giving one week’s notice in writing. If notice is given by you or the Employer, the Employer may pay you in lieu of part or all the notice period. The amount payable will be the amount of base salary you would have earned had your employment continued during the period for which a payment in lieu is made.
It is uncontroversial that the probationary period, set out in the relevant employment details, is one of six months. In this context, controversies have arisen regarding firstly, when notice was actually provided to Mr Manti; and secondly, whether such notice ended outside of the probationary period, leading to the requirement that his pay in lieu of notice be calculated differently.
The employment agreement specifies that Mr Manti would not be eligible to take part in either the Group’s long-term or short-term incentive plan until he had successfully completed the probationary period. From Jamieson’s perspective, this is a complete answer to Mr Manti’s claims regarding inducements relating to him receiving short and long-term incentives. Namely the specific terms of the contract preclude such incentives during the probationary period.
If its start date is 26 October 2022, the probationary period is taken to have concluded at midnight on 25 April 2023. This follows from the provisions of the Acts Interpretation Act 1901 (Cth) which defines the word month as meaning calendar month, which is a period which ends immediately before the commencement of the next month.[8] This calculation, which is not disputed by Mr Manti, does however throw up further controversies between the parties.
[8] See Prigge v Manheim Fowles Pty Ltd [2010] FWA 28.
It is agreed that the contract was terminated. However, it is Mr Manti’s position that he actually received the required written notice on 19 April 2023 in distinction to being orally informed of it on 17 April by Geoffrey Richmond at a meeting to which he was called at Jamieson’s office, which he left in a state of acute emotional distress.
Mr Richmond – the fourth respondent – is Peter Gilsmore’s long term business confidant and a member of the Jamieson board. He was tasked by Peter with informing Mr Manti of the Group’s decision that he had not completed his probationary period, to its satisfaction, and was therefore terminating his employment.
It is the effect of his evidence that he provided the written notice required, in a letter under his hand, dated 18 April 2023, which he sent to the email address which he had for Mr Manti, which he sourced through Jamieson’s internal staff and electronic mail system. Mr Manti asserts that he did not receive the email in question on the date which it bears.
Thus, he submits that the seven days’ notice of termination, required by the relevant employment contract, expired after the probationary period had concluded and was therefore invalid. Essentially, it was not open to either party to terminate the contract on the basis of the probationary period condition alone.
On the other hand, it is the position of the Jamieson Group that Mr Manti was provided with a written notice of termination, in letter form, which was emailed to the address which the Group had for Mr Manti, on 18 April 2023 and relevant deeming provisions, contained within the provisions of the Electronic Transactions Act 1999 (Cth) apply. The effect of this provision being that Mr Manti should be deemed to have received the relevant email, when he was capable of accessing it electronically from his server.
Essentially the Group’s position is that the relevant email was sent to the email address it had for Mr Manti, who did not attend at the business premises of the Jamieson Group on 18 April 2023 and cancelled an appointment arranged for that date, with Mr Richmond, at a late stage. The effect of this conduct being that the letter could not be provided physically to Mr Manti or directed to his work email and had to be sent to the only electronic address it had for him.
Mr Manti does not agree with this effect of this sequence of events. He contends that he made it clear to the relevant HR person at Jamiesons, Mr Tai, that the email address to which the letter was sent was not being utilised by him. Rather, he deposed that he had informed Mr Tai on 11 April 2023 to change his personal email from Outlook to Gmail, which had not occurred.
Further he submits that he could not access the Outlook email address, without his laptop, which was in Melbourne at relevant times and, even if he could have, which might have been theoretically possible through the relevant provider’s webpage, he could not access his own personal account because his in-box was filled with a large number of unread emails and spam, which he could not store, having run out of cloud space.
Thus, Mr Manti argues that the email address to which the termination letter was sent was not one which he could reasonably access on the applicable day and therefore it cannot be said that the termination was effective on 18 April 2023 because he did not formally know about it.[9]
[9] In this context Mr Manti relies on Kendall v Fortescue Metals Group [2021] FWC 5231 at [14].
He agrees that he did not attend the scheduled meeting with Mr Richmond on 18 April 2023 but deposes that he did not do so because he was unwell, suffering significant emotional disturbance because of what he would categorise as the high-handed conduct of Jamieson towards him.
As will be expanded upon, as these reasons for judgment develop, it is the effect of Mr Richmond’s evidence along with that of Peter Gilsmore that they did not want Mr Manti to suffer financial hardship as a consequence of his abrupt cessation of employment with the Group.
Because of this concern, Mr Richmond wished to discuss with Mr Manti, on 18 April 2023, the possibility of Mr Manti being engaged, on a temporary basis, to conduct some form of handover and/or complete his existing duties at the firm after the end of his contract.
These discussions were never formalised but were discussed between the two men, in Mr Manti’s office, on the evening of 17 April 2023, when Mr Manti has deposed he was emotionally distraught. Later some text messages passed between them. It is Mr Manti’s case that Mr Richmond was attempting to engage with him in a process of sham contracting in contravention of sections 342(1) and 358 of the FWA.
A process of sham contracting arises when a person’s employment is terminated and the relevant employer purports to re-engage that person, as an independent contractor, in order to reduce or vary the terms and condition of the previous employment, causing injury to the employee concerned because of the resulting alteration in employment.
It is uncontroversial that, if it is established that such a sham contract was offered and finalised, it would amount to adverse action as defined in section 342(1) namely it would amount to alteration of his pre-existing position which was prejudicial to him and injurious in financial terms. However, as will be delineated in greater detail, in due course, the onus remains on Mr Manti to establish, on the balance of probabilities, that such a form of adverse action occurred.[10]
[10]See Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [30].
The Respondents reject that Mr Richmond’s overtures to Mr Manti, which they would characterise as preliminary in nature and incomplete, can be construed as a process of sham contracting.
Firstly, no such agreement was ever formalised. Secondly, Mr Richmond contends that his and Peter Gilsmore’s motivation was to help Mr Manti through the immediate period following the termination of his employment with the Jamieson Group in the context of it being clearly conveyed to him that he had been terminated from his existing position.
The next significant aspect of Mr Manti’s case is that when all relevant circumstances of the case are considered, the recourse to the probationary period, primarily by Peter Gilsmore, Sean Gilsmore and Mr Richmond and other the members of the senior management team at Jamiesons, as the ostensible basis to terminate his employment, was a subterfuge to camouflage the actual reason for his dismissal which was, in effect, that Jamieson was affronted/threatened by its apprehension that he (Mr Manti) had had the temerity to complain about various aspects of the workplace culture at Jamiesons, which had directly impacted upon him and therefore he had to be sanctioned.
Essentially the real reason he was terminated was not because he was unable to perform his job property, it was because he exercised his right to draw attention to illegal and offensive work practices at Jamiesons. In this context, he points to the fact that the onus is on Jamiesons to establish that this was not the case, which he submits it has not done. This is characterised, by lawyers, as a reverse onus provision and is created by section 361 of the Act.
It is Mr Manti’s case that that the actual reason for his dismissal arises from the fact that he had exercised rights, protected by the FWA, to complain about his treatment, as an employee, in the workplace as well as to voice issues relating to his discrimination, by various employees of the Jamieson Group, relating to his sexual orientation and physical disabilities imputed to him and in addition to challenging some of its illegal accounting practices.
Essentially, it is Mr Manti’s case that the real reason he was terminated by the First Respondent was because he exercised his right to agitate and complain including about the fact that he was subject to unlawful discrimination, which had nothing to do with the probationary period or any other qualms the Group has subsequently asserted it had about his capacity to perform his duties at the Jamieson’s Group, as its CFO, and be compatible to its pre-existing work culture.
It is his view that he performed the tasks allocated to him capably and efficiently and he was terminated because he exercised his right to complain about the conditions of his employment and the fact that he had been subject to illegal discrimination and harassment.
The complaints made by Mr Manti, which he asserts form the real reason for his termination, can be summarised as follows:
·On 15 November 2022, he complained to Mr Tai that his base rate of pay was being incorrectly calculated. A complaint which he reiterated on 16 February 2023 – the pay complaint;
·At some stage in November 2022 Sean Gilsmore, in response to the fact that he (Mr Manti) was wearing checked trousers, referred to him as being a fag and gay and he (Sean Gilsmore) needed to watch his back. Mr Manti characterises these as homophobic remarks, which he found insulting and humiliating. It is Mr Manti’s evidence that he complained about these comments and Sean Gilsmore’s expressed attitude generally to homosexuality to Peter Gilsmore – the homophobia complaint;
·On 1 December 2022, Mr Manti was a backseat passenger, in a vehicle driven by Sean Gilsmore, in which Peter Gilmour was also a passenger. The three men were going to a business dinner with a major supplier, which was being paid for by the supplier. In this context, Sean Gilsmore made comments that Mr Manti should exercise restraint in eating otherwise he would fatten up, which would occasion the opprobrium of his wife - the weight complaint;
·In December of 2022, Peter Gilsmore subjected Mr Manti to pressure to compel him to allow a certain employee of the Group – Nathan Saddler – to split income with his partner to avoid tax, which Mr Manti considered to be contrary to the applicable tax legislation. Mr Manti complained about his conduct to Peter Gilsmore – the income splitting complaint;
·Between November 2022 and January 2023, Mr Manti and Peter Gilsmore had a number of discussions, including with the Group’s external accountants Commercial and Legal (C & L) regarding how GST was being calculated on various transactions. Mr Manti was of the view that the Group’s approach was incorrect and should be rectified. He informed Peter Gilsmore of this. Peter Gilsmore took a dim view of this appropriate comment and threatened him with dismissal if any change was made to the GST arrangements – the GST complaint;
·In February of 2023, Mr Manti was present when members of staff made sexually derogatory comments about female staff members, including a member of staff of Chinese heritage. In March of 2023, Mr Manti complained about this conduct to Mr Tai – the sexual comments complaint;
·On 16 March 2023, Mr Manti took part in a meeting with Peter Gilsmore, Sean Gilsmore and Mr Tai, which had been convened to discuss Mr Manti’s management style which had been subject to adverse comment by a number of long-standing finance staff members of the Group, particularly Elton Bartels and Pei Sun, who complained that they had been bullied by Mr Manti. Following the meeting, Mr Manti sent an email to Mr Tai and Peter and Sean Gilsmore in which he complained that he had been not been given proper details of the complaints made against him and the meeting had been procedurally unfair – the bullying meeting complaint.
It is Mr Manti’s assertion that he had a workplace right to raise these various complaints with management. However, various members of the management team of the Group, particularly Sean Gilsmore and later Peter Gilsmour took umbrage at these legitimate complaints and therefore decided to end his employment. Therefore, he was subject to adverse action – the termination of his employment – because he exercised his right to complain about matters in the workplace.
In these circumstances, it is Mr Manti’s case that his termination was contrary to the provisions of section 340 of the FWA. Again, section 340 is characterised by the relevant legislation as being a civil remedy provision. What that means is that, if the court finds that Mr Manti was subject to adverse action in contravention of a protected workplace right – either, in general terms, because he made a complaint or was subject to some form of illegal discrimination – the court has authority to impose fines.
In this case, in his formal statement of claim, which commenced these proceedings, Mr Manti claims that his employer, the Jamieson Group, infringed his workplace rights and Peter and Sean Gilmore bear accessorial liability for the Group’s actions. He seeks that each of them be subject to pecuniary penalties.
At relevant times, the maximum penalty for a contravention of section 340 was $16,500.00 for an individual and $82,500.00 for a corporation.[11] The same level of penalties attaches to a breach of the National Employment Standards, other than in the case of a serious contravention and to any contravention of sections 342 and 358 relating to sham contracting.
[11] See FWA at section 539(2) and section 546(2).
It is open to the court to order that any such pecuniary penalties imposed pursuant to the Act be paid to the Commonwealth or the individual employee who is the subject of the contravention.
It is the position of Peter Gilsmore that it was his decision alone to terminate Mr Manti’s employment and in so doing he sought advice from Mr Richmond. It is the effect of his evidence that the reason he reached this decision was that he had lost confidence and trust in Mr Manti’s capacity to discharge the role of CFO, particularly because Mr Bartel and Ms Sun Pei, in whom he had confidence, had been alienated by Mr Manti’s management style and had indicated an intention to resign from the Group.
Further, Peter Gilsmore found Mr Manti’s style of communication in the workplace to be harsh and intimidating and therefore incompatible with the efficient and harmonious operation of the finance group, which Mr Manti had been employed to oversee. In this context, he found Mr Manti’s criticism of members of the Group’s marketing and sales team to be misguided and contrary to what was their actual level of performance.
In addition, it was Peter Gilsmore’s view that Mr Manti was encouraging him to sever relations with several of his long-standing and trusted business advisors, including Mr Richmond, whom Peter described as being his financial and strategic advisor since 2017 and C & L which had been the Group’s external accountants since 2018, which again he considered to be contrary to the interest of the Group.
Finally, Peter Gilsmore had found that Mr Manti was incapable of performing central aspects of his responsibility in a timely manner. These included delays in completing an audit, which led to a resulting delay in the Group providing its required financial reports to its bank, the CBA and most significantly, Mr Manti failed to produce accounts for a meeting with a potential overseas investor in the Group, who had travelled to Adelaide for the meeting.
Essentially, it is Peter Gilsmore’s position that Mr Manti’s performance, during his probationary period, was inadequate and his termination came about because he (Mr Gilsmore) had no confidence that he could perform the tasks required of him in the role of CFO.
Accordingly, his employment was terminated for a proper administrative reason, which had no relation to any of the complaints subsequently raised by Mr Manti, of which he (Mr Gilsmore) had no personal knowledge other than in respect of the bullying meeting of 16 March 2023.
Given the terms of the employment contract, it is Peter Gilsmore’s position that he was entitled to terminate Mr Manti’s employment during his probationary period and he did so for legitimate reasons based on his perception that Mr Manti was a disruptive influence in the workplace because he could not maintain respectful relations with team members; he had lost trust and confidence in him as a result; and his work performance was poor.
In addition, Mr Peter Gilsmore denies that either he or any other member of the Group made any misleading representations to Mr Manti prior to the execution of the relevant employment contract.
In this context, it is acknowledged by him that there was discussion about Mr Manti being able to fly-in/fly-out for the position during the probationary period but no offer was made that this could be an indefinite arrangement.
In addition, Peter accepts that there was some discussion about the application of incentive schemes to employees of the Group, including potentially Mr Manti but it was made clear to Mr Manti that his participation in these schemes was subject to him satisfactorily completing his probationary period. In this context, whilst it is conceded that the possible sale of the Group was an issue canvassed in the pre-employment discussions, no representations were made in respect of this occurrence, which in any event did not eventuate.
Mr Richmond is a chartered accountant by training. In this role he has provided advice to the Group regarding tax issues with the ATO; liaison with potential private equity investors; employment issues; and general financial guidance. It was part of his role to manage Mr Manti’s introduction to the business of the Group. He was employed on a monthly retainer, which ended on 1 March 2023.
It is the effect of Mr Richmond’s evidence that he had several interactions with Mr Manti between his commencement with the Group and 1 March 2023. He has a diametrically opposing view to Mr Manti regarding issues pertaining to the Group being in dereliction of its GST obligations to the ATO and the competency of its external accountants C & L. In addition, he had confidence in the capacity of Mr Bartels and Ms Pei.
However, it is also Mr Richmond’s evidence that, in this period, he was not informed of the various complaints – namely the pay complaint; the income splitting complaint; the homophobia complaint; the weight complaint; the sexual harassment complaint; the GST complaint; and the bullying meeting complaints; said to have been made by Mr Manti, either by Mr Manti himself or anyone else.
In these circumstances, it is submitted on behalf of the first respondent that these complaints cannot have played an operative role in any advice which Mr Richmond provided to Peter Gilsmore or any other members of the senior management team at the Group or in any actions taken by Mr Richmond himself in respect of Mr Manti’s termination.
In early March of 2023, Mr Richmond was on holiday when he was contacted by Peter Gilsmore. Mr Richmond deposes that Peter informed him that he had lost confidence in Mr Manti and had formed the belief that he was not a good cultural fit for the Jamieson Group, particularly because of the way he had treated Mr Bartels.
In this context, it is the effect of Mr Richmond’s evidence that Peter, over the ensuing weeks of March, asked him to investigate his concerns further and advise him what to do. In these circumstances, he asserts that Peter forwarded him a number of emails which provided more particulars in this regard. These concerns centred on the following:
·Mr Manti has sought to replace C & L without seeking his consent;
·Mr Manti had been lax in respect of resolving an audit issue;
·Peter was concerned about Mr Manti’s management style;
·Mr Manti had not produced regular financial statements and an important year-end report had not been prepared for a meeting with a private equity investor.
In the context of these concerns, Mr Richmond arranged to have an off-site meeting with Mr Bartels and reviewed some of the financial reports prepared by Mr Manti. He formed the view that there was some significant errors in one of the reports, which if shown to a potential investor, was likely to have created a disadvantageous view of the profitability of the Group.
Following his investigations, Mr Richmond compiled a report, which he provided to Peter and Sean Gilsmore.[12] In his report, Mr Richmond was critical of the financial reporting provided by Mr Manti and expressed the view that it left the Group exposed to adverse action by the ATO. Mr Richmond flagged other concerns regarding the recording of key drivers relating to the financial progress of the Group.
[12] See Annexure GR-6 to Mr Richmond’s affidavit filed 25 January 2024.
Mr Richmond was further critical of how he perceived Mr Manti controlled the finance team. In this context, he wrote that he had become convinced that Mr Manti is keen to remove anyone who has the skillsets to challenge what he is doing. In the context of his earlier comments, the implication being that Mr Manti was not capable of managing his responsibilities but was intent on removing anyone who was capable of alerting management of his shortcomings.
Mr Richmond was also critical of how Mr Manti had engaged with the Group’s financier, the CBA and his management style generally. In this context, Mr Richmond conceded that Mr Bartels might be overreacting in respect of his negative attitude towards Mr Manti but his (Mr Richmond’s) impression was that nothing Mr Manti had implemented had benefitted the Jamieson Group overall and that in his view Mr Manti had the ability to talk the talk but little walking is evident.
Given this assessment, Mr Richmond recommended to Peter that Mr Manti’s contract be terminated, within its probationary period, on the basis that the Group’s management had a lack of confidence [on his part] to fulfil the position.
In support of this recommendation, he provided the opinion that Jamiesons is at more risk by retaining Frank than terminating his contract. In this context, he mooted the possibility that he be engaged, as substitute chairman to oversee the process so recommended, which included as one option a peacemaker offer to Mr Manti.
Mr Richmond became acting chair of the Jamieson’s Group, at the instigation of Peter Gilsmore, on 17 April 2023. Peter informed Mr Manti of this decision in an email sent that morning.
Also in that email, Peter advised that Mr Richmond’s first task would be to assemble a transparent and reliable set of accounts to represent the Group’s current financial performance. I accept that Peter’s concerns about the efficacy of financial reporting, for the Group, which was one of Mr Manti’s core responsibilities as CFO was a major concern for him at the time.
It is the effect of Mr Richmond’s evidence that he was appointed so that he could manage Mr Manti’s removal from the CFO role and, if this left Mr Manti in a difficult position, negotiate some form of short-term employment, for Mr Manti, within the Group. In addition, it was envisaged that he would place the Group’s finance team on a more even keel.
In this context, Mr Richmond and Mr Manti met at Jamieson’s offices on 17 April. The two men disagree about the precise matters which were discussed. They do however agree as to its tone. Mr Manti agrees that he was emotionally distraught during the discussion. The only logical reason for his distress was that he had been told by Mr Richmond that Peter Gilsmore was intending to terminate his employment contract.
Where the two men disagree is whether Mr Manti was offered a position as an independent contract at the Group, essentially in the same role or, as Mr Richmond would have it, there was some cursory and preliminary discussion, about the possibility of Mr Manti being possibly retained to complete his current uncompleted tasks or perform some possible other role at the Group so that he (Mr Manti) would not be financially stressed to utilise Mr Richmond’s terminology. [13]
[13] See Transcript at pp 108 - 109.
This discussion lasted no more than fifteen minutes and was brought to an end by Mr Manti walking out telling Mr Richmond he was too stressed to remain at work that day. In these circumstances, Mr Richmond sent a text message to Mr Manti early the next morning suggesting that they meet that afternoon, away from the office, at a hotel close to Mr Manti’s home. It being the case that Mr Manti did not attend work on the 18th.
Significantly, as indicated above, Mr Richmond elected to send a formal communication to Mr Manti, in which he set out what had been definitively conveyed by Jamiesons to Mr Manti at the 17 April meeting, from his perspective. The communication took the form of an email to which was attached a letter on the Jamieson’s letter head which is signed by Mr Richmond and bears the handwritten date of 18 April 2023. The letter reads as follows:
As discussed at the office yesterday I have been instructed to advise that your contract of employment will not be extended past the Probationary Period.
As per the terms of your contract this letter is one week’s written notice to terminate your employment. The contract allows such termination for any reason and the reason simply is your employer does not have the confidence to extend your contract past the Probationary Period.
As also advised the Jamieson Group wishes you well in your future pursuits and is happy to provide an appropriate reference if you require.
The letter was addressed to Mr Manti’s home address in Victoria, rather than to his Adelaide address. More significantly, it was sent to a personal email account with the provider outlook.
Mr Richmond attended at the hotel nominated for the 18 April meeting at the time specified. Mr Manti did not, sending him a text message in which he indicated he was still unwell and was planning to see a doctor the next day. In this context, Mr Richmond inquired of Mr Manti as to whether he had received the emails to your personal address. Mr Manti replied about an hour later, in a further text message, which read as follows:
Which one. Gmail or Outlook? Will check both later tonight.
To which Mr Richmond replied outlook and suggested that Mr Manti give him a call the following morning to arrange a chat. In this context, Mr Manti places some weight on his responding text message, which reads as follows:
Will do. Told Simon on many occasions not to use or handout Outlook because never checked. Tried to get this updated in Hero.
Employment Hero is the Jamieson’s internal electronic messaging system. It is the effect of Peter Gilmore’s affidavit evidence that it is Jamieson policy that each of its employee’s bears responsibility for up-dating their personal conduct details on Hero.[14] In all these circumstances, it is the overall position of Jamiesons that it did everything within its power to inform Mr Manti that he had been terminated from his position and the date from which that would be effective.
[14] See affidavit of Mr Peter Gilsmore filed 25 January 2024 at [36].
As noted above, it is Mr Manti’s position that as he did not actually access the email on the day in question, the period of his notice did not begin until after the conclusion of his probationary period. However, it seems to me that it cannot be said that he was unaware that an email had been sent to him and given his emotional reaction to what was said in the meeting of 17 April, it seems improbable that he did not know the gist of what it contained.
Mr Manti did not return to work after 17 April 2023. It is his case that he was unwell. However, in a formal sense he did not provide a medical certificate or advice Jamieson’s HR Department to this effect. In this context, Mr Manti deposed as follows:
On 19 April I found the letter of termination in my outlook account giving one week’s notice. Given that the notice period commenced from 20 April, employment concluded on 26 April which is the day after my probationary period.[15]
[15] See Mr Manti’s affidavit filed 3 September 2024 at [132].
It is in this context that the controversy regarding what were Mr Manti’s accrued leave entitlements, which relates, in part, to the date on which Jamiesons determined he had ceased to work for it. In addition, other controversies arose in respect of entitlements, which had been incurred by Mr Manti, such as his accommodation expenses in Adelaide and defrayed by the Group were approached; along with what it regarded as unauthorised expenditure, relating to legal advice and future airfares, which had been charged by Mr Manti to Jamieson’s corporate credit card, after 17 April.
Mr Manti has asserted that he did continue to work, although he was not actually in the office, in the period following the meeting of 17 April. In his first affidavit, he deposed that the continued do some work at home. In cross-examination, he asserted that this work consisted of reviewing the Group’s various standard employment contracts.
In the context of what happened this seems to me to be to be improbable. Firstly, no-one at Jamieson was aware that this was what he was doing and Mr Manti himself did not advise them of this. In this context, it is Mr Richmond’s evidence that Mr Manti did not seek any form of leave from Jamieson or provide any formal proof of incapacity.
Secondly and more significantly, it is not congruent with his evidence regarding his mental state at the time and what he actually did. It seems to me that it is more likely than not that he was either unable or disinclined to perform any further tasks for the Group, which did not either seek information or refer any duties to him. Mr Richmond was not in a position to chase him about these issues.
In any event, Mr Manti agrees that his access to Jamieson’s computer network was revoked at around 5.00 pm on 26 April. The further meeting envisaged by Mr Richmond, between him and Mr Manti, also did not occur. Although the two continued to converse via text messages.
In his most recent affidavit, filed 10 January 2025, a few days prior to the commencement of the hearing, Mr Manti has provided text messages from 20 April onwards, which in my assessment are supportive of a finding that relations between Mr Manti, on the one hand and Mr Richmond and management at Jamiesons, on the other hand remained tense and at significant cross-purposes, particularly as to whether there was anywhere near a concluded agreement as what role, if any, Mr Manti would have at the Group given his dismissal as CFO.
In these terse messages between him and Mr Richmond, it is only Mr Manti who alludes to the possibility of him coming in as a contractor. In response, Mr Richmond indicates categorically that Mr Manti’s employment would finish on 25 April and any on-going employment relationship between Jamiesons and Mr Manti depended on him agreeing not to sue the Group; return keys; and return all of the Group’s data stored on devices in Mr Manti’s control.
It is the effect of Mr Richmond’s evidence that Mr Manti did not cooperate with any of the request made of him and in these circumstances, it was concluded that the period of notice prescribed by the relevant employment which Jamieson was required to provide had been provided and expired on 25 April 2023.
In addition, he alleges that Mr Manti logged on to one of Jamieson’s programs, without authorisation, and damaged some of its files, including removing Mr Bartel’s access to them. He alleges that a complaint was made to police.[16] Essentially, it is the effect of Mr Richmond’s efforts that Mr Manti made it clear, by his actions, that he was extraordinarily hostile to Jamiesons.
[16] See Mr Richmond’s affidavit filed 25 January 2024 at [52].
It is in this context that the issue of what was the financial extent of Mr Manti’s entitlements, on the cessation of his employment with Jamiesons, arises. Jamiesons pays its staff on a monthly basis. I have no difficulty in reaching the conclusion that the atmosphere between Jamiesons and Mr Manti, by this stage, had become poisonous.
On or around 30 April, a payslip was issued for Mr Manti for the pay period between 1 April and 30 April. It indicates that he received a gross salary for the month of $16,666.67, which was subject to tax of $5,395.00 and a superannuation payment of $1,750.00. In cash terms, the amount of remuneration paid on termination was therefore a total of $11,271.67.
The relevant payslip indicates that as at this date, Mr Manti had a balance of 40.3387 hours of holiday pay. No monies were allocated to him for these accrued hours. Mr Manti claims that this was clearly wrong. In addition, he asserts that he should have been paid an additional week’s wages in lieu of notice.
There is no controversy that Jamieson had issued a corporate credit card to Mr Manti, which he could utilise for business purposes. Mr Richmond deposes that on 19 and 20 April, it came to his attention that Mr Manti had incurred costs on the card of $6908.09 in respect of 14 return interstate flights between May and August of 2023, with an airline, which Jamieson did not normally utilise, and a further sum of $594.00 in order to consult a Melbourne based lawyer, who specialised in unfair dismissal claims.
I reject Mr Manti’s claim that he consulted the lawyer in respect of any aspect of Jamieson’s business. In addition, it seems to be improbable in the extreme, if not preposterous, that Mr Manti booked these flights on the assumption that he would be continuing to work for Jamiesons, in some capacity or other, pursuant to the contract offer said to have been made to him by Mr Richmond. Mr Manti has conceded that none of these flights have been refunded, either to him or Jamiesons.
It is clear from the nature of the response filed on behalf of Jamiesons to Mr Manti’s statement of claim, which was originally prepared by Mr Richmond himself, before the firm’s current solicitors were engaged, that the first respondent collectively takes a dim view of how Mr Manti behaved after 17 April 2023, which it would characterise as constituting corporate sabotage.
In these circumstances, Jamiesons made a counterclaim against Mr Manti seeking damages for damaging its corporate reputation with investors; the unauthorised use of its corporate credit card; restitution for not returning keys and electronic equipment owned by it; and damages relating to technical services it incurred in respect of his unauthorised access to it software network.
In addition, in answer to Mr Manti’s allegations that he had been provided with false and misleading statements in respect of the nature of his employment with Jamiesons, it alleged that he had misled it about his former employment and experience. However, in her opening, Ms Stewart indicated that these aspects of the claim had been abandoned.
Mr Tai calculated that, given Mr Manti’s last day of actually attending work at Jamieson’s was 17 April 2023 and it was apparent that thereafter he had been absent without official leave, the amount actually paid to him on 30 April actually constituted an overpayment by some two or three days.
On 30 April, Mr Manti submitted a claim for personal out of pocket expenses relating to his fly in/fly out arrangements, between mid-January and mid-April of 2023 in an amount of $2,022.63. Mr Tai deposed that he considered this request and concluded that it was less than the amount he had calculated as being the overpayment to Mr Manti. Mr Tai took the same approach in respect of Mr Manti’s accrued holiday leave. Ms Stewart has conceded that this was impermissible given Mr Manti’s statutory entitlement to the sum.
It is in these circumstances, that the previously mentioned accommodation between Jamiesons, on the one hand and Mr Manti, on the other has been reached and Mr Manti has been paid the sum of $5,874.99. In her final submissions, Ms Stewart indicated that whilst what had occurred could not constitute a legal excuse and what had occurred was a breach of the NES, the explanation provided was genuine and, as a consequence, the court should exercise its discretion not to impose a penalty on the first respondent.
EVIDENTIARY ISSUES TO BE RESOLVED
In all these circumstances, the following issues fall to be resolved by the court:
·Were any misleading and deceptive inducements made to Mr Manti by any person in the Jamieson’s recruitment team;
·Did Peter Gilsmore promise Mr Manti a $13,000.00 bonus, which was not honoured and in respect of which Jamieson is contractually liable. This relates to a promise that Jamiesons would provide the sum to Mr Manti to enable him to complete the purchase of a home in Adelaide, which he had been encouraged to do;
·Do the various complaints made by Mr Manti satisfy the definition of a complaint or inquiry made by him in relation to his employment and so fall within the definition of workplace right contained in section 341(1)(c) of the Act;
·Who was the decision-maker in respect of the decision to terminate Mr Manti’s employment contract. If the decision maker was Peter but he was influenced by others within the management team, particular Sean and Mr Richmond, does this have implications for the probity of the ultimate decision, if it is found that others, within the management team, had different and possibly malign motives to Peter, for wanting Mr Manti gone;
·What was the substantive and operative reason for Mr Manti’s dismissal;
·When the reason for dismissal is identified was it for a reason protected or prohibited under the Act;
·Did the discussions between Mr Manti and Mr Richmond, on 17 April and afterwards, amount to a proposal that Jamieson and Mr Manti engage in a process of sham contracting and so amounted to adverse action for the purposes of the Act;
·When did the probationary period specified in the employment contract end and when was the required notice provided to Mr Manti. In this context, what is the relevance of his assertion that he was unable to access his email account on 18 April;
·Given all the circumstances prevailing and particularly given that an amount for his accrued holiday pay has been paid to Mr Manti, should the court exercise its discretion not to impose a penalty in respect of the breach of the NES.
LEGAL PRINCIPLES APPLICABLE
As previously indicated, it is an ancillary aspect of Mr Manti’s case that he was misled or deceived by Jamiesons into taking up the position of CFO with the firm. In general terms the alleged misrepresentations occurred in the context of pre-employment negotiations between Mr Manti and Jamiesons, which related primarily to FIFO arrangements and his entitlement to incentives.
It is common ground between the parties that these negotiations involved the consultant engaged by Jamiesons, Mr McGrath, in its recruitment processes for its CFO. Mr McGrath did not provide evidence in these proceedings.
These representations are said to contravene two provisions of the Australian Consumer Law which is contained in a schedule to the Competition and Consumer Act 2010 (Cth), in particular clauses 18 and 31, which read respectively as follows:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive. and
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment.
(b) any other matter relating to the employment.
However, the main thrust of the current proceedings is not on whether there was misleading or deceptive conduct in respect of how Mr Manti came to be employed. The focus of the proceedings is on whether Mr Manti was subject to adverse action because he exercised a workplace right held by him, which resulted in Jamieson subjecting him to adverse action. Lawyers characterise these proceedings as general protection proceedings. Essentially, employees such not be subject to termination or a reduction in their terms and conditions because of the generic rights to which they are entitled in the workplace.
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
dismisses the employee; or
injures the employee in his or her employment; or
alters the position of the employee to the employee’s prejudice; or
discriminates between the employee and other employees of the employer
In the current matter the adverse action to which Mr Manti was subject was his dismissal from his employment. He asserts that it was because he exercised various workplace rights pertaining to him.
Section 341(1) provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
(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.
It is Mr Manti’s case that he made various complaints about his personal treatment in the workplace and about the conduct of other employees of Jamiesons which he found offensive, particularly about issues inferred about his sexuality – that he was gay – and a possible disability suffered by him – he was fat. In addition, Sean Gilsmore made racist and sexist comments in his presence which he found offensive and about which he complained. He asserts that his various complaints were made to Peter Gilsmore, Mr Tai and Sean Gilsmore.
In these circumstances, it would appear to be asserted by Mr Manti that his dismissal has, at least in part, been occasioned by a personal attribute protected by section 351 of the FWA.[17] The section reads as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[17] See Claim Form filed 9 July 2020 at [11] – [14].
In addition, Mr Manti submits that he was subject to adverse action because he complained to Peter Gilsmore that Jamieson was not completing its GST returns correctly and to Mr Tai that his pay was not being correctly calculated. In this context, it will be necessary to ascertain whether these complaints and inquiries were made and, if so, what is their status under the provisions of section 341 of the Act.
In Shea v TRUenergy Services Pty Ltd (No 6)[18] Dodds-Streeton J defined the concept of being able to make a complaint, in the industrial context, in the following terms:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
[18] Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [29].
At a later stage, Dodds-Streeton J indicated the making of such a complaint was not restricted to a person who had the capacity to seek compliance with a legal obligation but extends to complaints about an employer made to the employer itself in relation to the person’s employment. In addition, such a complaint need not be factually correct or ultimately substantiated to be a complaint falling within the purview of section 341(1)(c)(ii).[19]
[19] Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [600].
In the past there has been controversy about what is meant by the expression is able to make a complaint in section 341(1)(c) and whether the legislature envisaged that such a right to make a complaint about in relation to a person’s employment needed to be sheeted home to some identifiable source of entitlement or whether it was a right which could be characterised more broadly.
In Qantas Airways Limited v Australian Transport Workers Union of Australia[20] the High Court held that the words is able were not to be taken as words of limitation. Bromberg J in Cummins South Pacific Pty Ltd v Keenan[21] said the phrase was directed towards the identification of an actuating circumstance which could be related to rights that the scheme of general protections created by the FWA eventuated.
[20] Qantas Airways Limited v Australian Transport Workers Union of Australia [2023] HCA 27 at [36].
[21] Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421.
Accordingly, in general terms, a complaint under the relevant section encompasses the expression of a grievance or a finding of fault or some form of accusation. In general terms, Mr Manti complaints about being subject to homophobia and fatism; the miscalculation of his wages; and the irregularities in GST calculation fall within this general characterisation.
It would seem that the wage calculation complaint is one which arises under the provisions of the FWA; the homophobic and sexually offensive comments arise under the provisions of Commonwealth Discrimination Law; where the GST complaint fits in, in this regard, is not immediately ascertainable. It does not appear to me to fall within a relevant type of complaint.
In all these circumstances, what was said by Snaden J in Wong v National Australia Bank[22] appears apposite:
[N]ot every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a complaint, as that term is properly understood. Were it otherwise, any form of reporting that involves the conveying of objectively unwelcome news would suffice to qualify.
[22] Wong v National Australia Bank [2021] FCA 671 at [153].
In this context, it is important to delineate what these proceedings are not. They are not a general inquiry into the general probity of Jamiesons as an employer and corporate taxpayer and the overall propriety of its workplace culture.
Mr Manti was entitled to voice his disapprobation about all manner of things which occurred at Jamiesons but these did not automatically found workplace rights. In addition, for the reasons which follow, I doubt that he did in fact make any of the complaints in question.
Nor is the case a broad inquiry into whether Mr Manti has been subjected to a procedurally or substantially unfair outcome.[23] Rather, the only issue potentially subject to the determination of the court is whether Jamiesons took that the relevant adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. As the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[24]
[23] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.
[24] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
As a consequence of the use of the word because in section 340 there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
For obvious reasons, the only person who can know definitively why adverse action was taken, in any particular workplace, is the person who actually took it. If the action was taken for a prescribed reason, such a decision-maker is likely to be disinclined to provide the actual reason and it may therefore be difficult, if not impossible, for the employee affected by the relevant decision to extract what was the actual reason for the decision made.
Necessarily the decision may be cloaked with an acceptable rationale – operational reasons or some fault on the part of the employee concerned, when the real truth is otherwise. This is the case in the present matter. Mr Manti asserts that the reason provide to him was a subterfuge; Jamiesons and its management team assert otherwise.
Given this commonplace evidentiary dynamic, in general protection claims, sections 360 and 361 of the FWA are of central importance. The latter section creates what is often described as the reverse onus. It reads as follows:
361 Reasons 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.
Clearly, adverse action can be taken for one reason or a variety of reasons, some potentially proscribed, some not. In these circumstances, section 360 is also relevant. It reads as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reason for the action include that reason.
As will be detailed with more specificity, in due course, where there is controversy as to the motivation for a particular incident of adverse action, the requirement on the court is to determine the substantive or operative reason for the action in question.
Section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Section 550(2) provides a definitive list of the circumstances in which a person is taken to be involved in a contravention. A person is so involved only if the person concerned:
·has aided, abetted, counselled or procured the contravention; or
·has induced the contravention, whether by threats or promises or otherwise; or
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired with others to effect the contravention.
In the current matter, Jamiesons asserts that the actual person who made the decision to terminate Mr Manti's employment was Peter Gilsmore alone. Mr Manti asserts otherwise submitting the Mr Tai, as a participant in the bullying meeting but particularly Mr Richmond and Sean Gilsmore had an integral part in the decision-making process and are therefore open to civil penalty for contravening the Act as accessories.
In Yorke v Lucas[25] the High Court indicated that in order to establish that any of Mr Tai, Mr Richmond or Sean Gilsmore were involved in the relevant contravention of section 340 of the Act, it must be established that they were intentional participants in the contravention and had knowledge of each of the essential elements of it.
[25] Yorke v Lucas [1985] HCA 65.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[26] White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
[26] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [178].
For the reasons indicated above, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question. The task is made more difficult in the case of decisions made in a collegiate environment or in a case like the present one, where two of the actors concerned share a close familial relationship. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices in the industrial context is the rationale for the reversal of the onus of proof under section 361 of the FWA.
The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which the adverse action was taken. That is to say, at the end of the evidentiary process, the question for the court will be whether the first respondent has established, on the civil standard of proof, that Mr Manti’s employment was not terminated for a reason, or for reasons which included a reason, proscribed by the Act.
Section 361 of the Act comes into operation only after it has been established that adverse action was taken and that a relevant workplace right exists as an objective fact.[27] In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[28]
[27] See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[28] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
Where there is only one person who made the relevant decision, this process is relatively simple. It involves an inquiry in the reasoning process leading to that person’s decision to take the adverse action. Albeit in a different kind of adverse action case (one concerning industrial organisation) Gageler J said as follows in respect of the onus arising under section 361:
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.[29]
[29] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 at 18 [85].
Necessarily, it becomes more complex if a number of individuals are involved, with varying degrees of knowledge about the relevant issues and the decision-making process can be described as collaborative – essentially one involving the thought processes of more than one person. This complexity is intensified if there is controversy about the identity of the various decision makers in question – essentially who decided what and on what bases.
Relevant authority from the High Court indicates clearly that how a decision was made; by whom it was made; and what was the substantive and operative reason for it; are matters to be determined by reference to the facts. Each is fundamentally a question of fact.
In Qantas Airways Ltd v Transport Workers Union of Australia[30] Steward J said as follows;
Corporate decision-making is often the product of many motivations, causes, influences and processes of reasoning. Depending on their level of seniority or function, officers of a company may well emphasise different aspects or factors as to why something is to be done. For example, those in the area of human resources may well have a focus on employment outcomes. But the task is the identification of the actual, immediate or operative reason or reasons for taking adverse action. That is a question of fact. In a given case, it may well require one to reject as a reason for taking adverse action the musings or thoughts of employees that ultimately play no part in the ultimate decision-making process. It may also require one to differentiate between the actual reasons for taking adverse action, and factors or issues which may have contributed in only some causal way in the lead up to the occurrence of such conduct.
[30] Qantas Airways Ltd v Transport Workers Union of Australia (supra) at [104] per Steward J.
In similar vein His Honour said as follows:
Identifying the actual or operative reason for taking adverse action will also require one to identify the decision-maker or decision-makers. That is again a question of fact.
In the current matter, Jamiesons asserts that Peter Gilsmore was the sole decision maker. It refutes any suggestion that he was directed to act, in the manner in which he did, by any other person, particularly Sean Gilsmore, Peter’s son and the person to whom Mr Manti attributes the sexist and other comments directed towards his person, which he found offensive, and which led to him making his various complaints.
In this context, in evidentiary terms, Sean Gilsmore denies making the comments in question. He also deposed as follows:
In or about mid-April 2023 I was consulted by Peter regarding the decision to terminate Frank's employment. I was in China with Peter and Angus at the time of this discussion.
I had formed the view that Frank was not suitable for ongoing employment due to his conduct with other staff members and because he had failed to complete required finance tasks. I found Frank to be non-responsive to inquiries.
The final decision to terminate Frank’s employment was made by Peter as the Managing Director and it was actioned by the acting Chairman of Jamieson, Geoff Richmond, given Peter was overseas.[31]
[31] See affidavit of Sean Gilsmore filed 8 February 2024 at [15] – [17]
However, it is Mr Manti’s case that one of the reasons his employment was terminated was because he complained about Sean Gilsmore’s conduct and the culture it represented at Jamiesons. In his affidavit material, he asserts that he raised these complaints with Mr Tai, who denies that this was the case. In this context, it should be noted that Mr Manti did not specifically put his alternative version of events to Mr Tai.
Mr Manti’s cross-examination of Sean Gilsmore was brief and did not touch on any of the homophobic, racist or sexist comments alleged to have been or the references to his (Mr Manti’s) weight. Mr Manti only asked him if he had been involved in the decision to terminate his employment to which he replied that he been asked for an opinion only but it was not his decision. The transcript indicates that Sean Gilsmore was in the witness box for less than three minutes.
In early March of 2023, it is the effect of the evidence of Mr Tai, Peter Gilsmore and Sean Gilsmore that issues arose in the workplace regarding the possibility of Mr Bartels and Ms Pei leaving Jamieson’s employ because of concerns they had about Mr Manti’s management style. As a result, a meeting was convened for 16 March.
Peter Gilsmore agrees that he attended the meeting, which Mr Manti has characterised as being procedurally unfair to him because he was accused of bullying. Peter stated that the motivation for the meeting was that both Mr Bartels and Ms Pei had tendered their resignation and he (Peter) was concerned that each of them would be a significant loss to Jamieson’s finance team.
Peter Gilsmore’s evidence in respect of the events leading up to bullying meeting can be summarised as follows:
·Mr Manti had made comments to him that Mr Bartels and Ms Pei were incompetent in the performance of their duties, whilst he viewed them as respected and long-term employees of the firm, who had worked well with C & L and Mr Richmond over many years;
·Mr Bartels had tendered his resignation on 24 February 2023 and Ms Pei had resigned a few days later;
·He was concerned at the unrest in the finance team and was anxious to avoid a depletion in its expertise as a consequence of the foreshadowed departures of Mr Bartels and Ms Pei, which each attributed to discontent with the management style of Mr Manti.
Accordingly, given his position that it was his decision to engage Mr Richmond to investigate Mr Manti’s management of the finance team, there can be no doubt that what occurred at the bullying meeting was influential in Peter Gilsmore’s decision to terminate Mr Manti’s employment. He, however, denies knowing anything of Mr Manti’s earlier complaints.
In this context, the question arises as to whether this was actually true, which depends on the assessment of his credibility as opposed to that of Mr Manti or whether he (Peter) was influenced, in some way, by Sean, who wanted Mr Manti gone because he was aggrieved by his complaints about him; or by Mr Richmond, who felt threatened because Mr Manti was conducting long over-due reforms at the firm; or by Mr Tai, who was annoyed about his wage calculation and GST complaint. The implication being that these were the real reasons leading to adverse action being taken against Mr Manti.
Even if Peter was aware of Mr Manti’s various complaints or the fact that there had been some controversies in the workplace, relating to wage and GST issues, which Mr Gilsmore denies, it remains his case that none of these factors was a substantive or operative reason for Mr Manti’s employment being terminated by him.
It is his position that he made the decision himself based on his own impression of Mr Manti’s management style and what was reported to him by Mr Richmond, as well as what he regarded as significant performance failures on Mr Manti’s part.
Certainly, it is denied by Peter Gilsmore and each of the other respondents that he (Peter) was their dupe who was manipulated by them in order to rubber stamp the decision which they had made for improper reasons – so far as Sean was concerned because he was annoyed at being called out for his sexist behaviour; so far as Mr Tai was concerned because of the issues raised about GST and wage calculation; and for Mr Richmond’s that he felt he was being undermined by Mr Manti generally.
In Gibbs v Palmerston Town Council[32] Gray J identified this issue in the following terms:
…there is still a difficult question of the extent to which the improper purpose of one person may be a substantial and operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[32] See Gibbs v Palmerston Town Council [1987] FCA 477 at [114].
In this context, Peter indicated that he approached a broker to assist in the search for such a purchaser or investor. This was Mr McGrath, who subsequently advised that this process would be assisted if it could be seen by such a person that the Group had a qualified and competent chief financial officer, particularly given that Mr Richmond, in whom he had absolute trust, was also desirous of pulling back.
Prior to the advent of Mr Manti at Jamiesons, in his evidence, Mr Gilsmore described his management style as old school based on a long-standing team of people, whom he trusted. However, the Group had reached a point at which, in his words:
The team needed reinforcing. We needed, I guess I will call it, more qualified, more experienced people in the team to be able to engage potential investors and things like that.
Whilst Peter Gilsmore was in China, on business, from late March of 2022 until late April of 2022 prior to leaving for overseas, he liaised with Mr Richmond about his concerns regarding Mr Manti’s impact on the Group since he had begun. As noted above, he was particularly concerned by the fact that Mr Bartels and Ms Pei had resigned from the firm but had been persuaded to reconsider.
Throughout this period, negotiations were underway in respect of a possible sale of the Group. In this context, it was of paramount importance that accurate reports be available in respect of its financial situation for the previous six months. These reports were the responsibility of Mr Manti, as CFO.
During this period, I accept Peter’s evidence that two matters were of fundamental importance to him. Firstly, that Mr Manti prepare the relevant reports in anticipation with a meeting with the representative of a potential buyer for the Group, Mark Baldissera and secondly, his impression that Mr Manti had alienated key staff and other professional advisors in whom he had confidence.
The effect of Peter Gilsmore’s evidence is that Mr Manti met his requests for written reports in advance of the relevant meeting with obfuscation and a failure to deliver as directed. In this context, Peter deposed as follows:
Frank had sent an email to me, and he had said to Mark, he would be ready for the meeting. Right. But in the final correspondence from Frank to me he had announced that he was - actually wasn't planning to be ready for the meeting. He was going to engage Mark verbally, which is exactly not what Mark wanted to hear because Mark was anxious to get our results, and - and he and Mark Baldissera had actually sent an email to me - to me direct, not copy Frank, saying he had concerns about this - this imminent or possible failure. That it was an important matter. That he was bringing people from - potential investors in our company. We needed to be ready… Manti had - we had - we had promised a - a report to Baldissera at the end of January, I think. We pushed that out to the end of March, and we promised wholeheartedly the end of April. Now, again, if you're a potential investor, and particularly if you've got a bright new shiny CFO, you would expect those reports on time and - and professionally presented, not a verbal report on the performance of the company over the last three months that, by the way, was six months late.[56]
[56] See Transcript at page 132.
Peter Gilsmore described this as being yet another matter in which his perception was that Mr Manti had failed in a matter within his remit as CFO. Firstly, by not being ready with the written report and then suggesting to the buyer he would provide an oral report and secondly not being professional and prompt in discharging his responsibilities to the Group. Mr Gilsmore indicated that he was very disappointed with Mr Manti. In this context, he deposed as follows:
[A]nd the person that gets the brunt of this isn't Manti. It's me. Because, at the end of the day, I've got to look at this person, Mark, who I had great regard for, and say to him, sorry, it's not ready again. And that- that was - when I - when I looked at the last six months whilst he had been at Jamieson everything had been quite underwhelming. Nothing was settled. Nothing was clear. And there were many disappointments to me. I didn't protest. I simply observed, and this was another one, but this was the one that said I can't do this. This was the one that said I cannot trust this person in my company.[57]
[57] Ibid at page 133.
In his evidence, Peter Gilsmore raised other concerns regarding Mr Manti’s impact on the workplace, particularly the Finance Department, in which Mr Bartels and Ms Pei worked and in respect to his relations with the Group’s external accountants, C & L.
He described Mr Manti’s engagement with Mr Bartels and Ms Pei as being cruel and hurtful involving Mr Bartels being stripped of his self-respect and Ms Pei’s loyalty to and hard work for the Group being dismissed. Peter Gilsmore expressed his dismay that Mr Manti described C & L as a bloodsucking parasite and attempted to change the Group’s auditors without his approval.
The strength of Peter Gilsmore’s conviction that Mr Manti had had a deleterious impact on the business and culture of Jamiesons, which was his lifetime’s work, was tangible. To utilise his terminology, the atmosphere, which he perceived Mr Manti had created around him at the firm was one of misery. I found him to be a creditable witness, who was unshaken by any proposition put to him by Mr Manti.
Peter Gilsmore presented as a cautious and conservative person, in his decision-making, who was not prone to precipitate managerial actions. I accept that he was the instigating force behind the decision to recruit Mr Manti in the first place and he did so because he considered that a well-qualified CFO would be of great assistance in achieving his desire of selling off some of his capital in the business to an investor.
However, I also find that the recruitment process was conducted professionally and overseen by an outside agent, Mr McGrath to ensure that the best candidate was found and the process was transparent and efficient. It is in this context that an assessment of whether or not misleading and deceptive inducements were made to Mr Manti to influence him to leave his position in Melbourne and adopt the new status of a FIFO employee in Adelaide.
Influential in the decision to recruit Mr Manti was Peter’s realisation that although Mr Bartels had, from his perspective, ably managed the financial/accounting side of the business over many years, with outside assistance from Mr Richmond and G & L, the fact remained he (Mr Bartels) was not formally qualified, and this might well act as a disincentive to any outside investor.
Accordingly, just as he had been influential in recruiting Mr Manti, it seems to me that he was also the instigating force in his removal from the position of CFO. He did so in, in my finding, in a cautious and considered way, which was not impervious to the sensitivities of Mr Manti, whom he anticipated would be at significant risk of financial disadvantage as a consequence of losing the position.
I find that Peter was largely unaware of any of the issues relating to the calculation of Mr Manti’s salary, particularly the minor differential relating to recreation leave pay and other issues which had apparently troubled Mr Manti about GST arrangements. From his perspective these were not issues for which he had any personal responsibility and interest or about which he had direct personal knowledge.
He was concerned primarily at ensuring Jamieson’s finance department could operate harmoniously and that all necessary financial information was to hand in order to advance the prospective sale negotiations with Mr Baldissera.
Peter was apparently present in the motor vehicle when the fat comment was made but deposed that he had no recollection of it. I accept his evidence that he had no knowledge of Mr Manti’s complaints about sexual innuendo in the workplace initiated by Sean. I do not consider that these matters can be regarded as having any influence in the decision to terminate Mr Manti’s employment.
In this context, I accept Peter’s evidence that it was he who decided to convene the so-called bullying meeting of 16 March 2023, at which he, Sean and Mr Tai were present with Mr Manti. Peter characterises it as one which was directed towards addressing issues related to Mr Manti’s management style.
From his perspective the reason the meeting was called was to address the fact that Mr Bartels and Ms Pei had tendered their respective resignations. In his view, this would be disastrous for Jamiesons and unfair for each of them and the obvious catalyst for this state of affairs was the advent of Mr Manti to the CFO role.
It appears probable that the meeting was heated in tone. Mr Manti has deposed that he took notes of the meeting which Peter began by saying words to the effect that there was a problem in the finance department, which was unsettled because Mr Manti had been bullying them.
Mr Tai also took notes, his indicated that Peter opened the meeting by indicating that there was problem needing a solution in the finance department and this based on what he had gleaned from Mr Bartels and Ms Pei. Mr Tei’s recollection was that Mr Manti was defensive and it was he who raised issues of bullying.
It does not seem that the meeting resolved anything – Peter has indicated that he requested Mr Manti soften his communication style. He further deposed that directed Mr Manti to get on with preparing various accounts, which he regarded as being overdue.
Mr Manti did not respond well to his perception that he was being criticised, which he undoubtedly was. However, it is only in his mind that the meeting can be characterised as being one of a formal disciplinary kind. It is likely that the meeting led to the view coalescing further in Peter’s mind that Mr Manti had not fitted well into his role as CFO of Jamieson.
These concerns were influenced by other matters which concerned Peter about how Mr Manti was discharging his duties at Jamiesons, which can be summarised as follows:
·On 9 February 2023, Mr Manti sent him an email in which he disparaged the input of Mr Richmond at Jamiesons. This did not accord with Peter’s experience of him over many years;
·Mr Manti was equally disparaging of C & L and alleged that they were overcharging Jamiesons – an allegation Peter did not accept;
·Mr Manti had purported to engage other auditors without reference to him;
·Mr Manti was, in his view, critical of the sales team at Jamiesons, which was not warranted;
·Mr Manti seemed to be agitating for change at Jamiesons which did not seem warranted and presented to him and others as unduly aggressive in his tone;
·Mr Manti had failed to resolve an audit issue with Jamieson’s financier;
·As previously indicated, Mr Manti had upset Mr Baldisserra in respect of providing financial information for the investor meeting;
·Mr Manti seemed to be excluding Mr Bartels from emails regarding the investor meeting;
·On 13 April Peter sent Mr Manti an email requesting an up-date on what progress had been made I respect of preparing for the investor meeting;
·Mr Manti replied to this email by indicated that not a great deal of progress had been made and he proposed verbally presenting key figure.
In all these circumstances, Peter Gilsmore concluded that the meeting which he had convened with Mr Manti and other senior management of the firm had achieved nothing. As a result, he decided to engage his trusted business confidant, Mr Richmond to investigate the situation and advise him what to do about it.
Following this meeting of 16 March, the next day, Mr Manti made a complaint to Peter and Sean not that he had been personally bullied in the earlier meeting but that he had been accused of bullying others, which he characterised as a complaint lacking procedural fairness and of putting his occupational safety at risk. In his email, he asserted that he had acted within acceptable limits in respect of his dealings with Mr Bartels and Ms Pei.
It seems to be objectively reasonable for management to raise these types of issues with the head of the relevant department in the light of two long-standing staff members tendering their resignations whilst raising the same types of concerns of being under stress in the workplace. Indeed, it seems to me that it would have been remiss if this had not occurred.
In these circumstances, there does not seem to have been anything further that could have been legitimately done in respect of the issues raised in Mr Manti’s email of 17 March. He had been requested to change his style of management. He had not been threatened with any disciplinary action. I do not accept that this email played a part in any aspect of the decision-making in play at the time in respect of what would be Mr Manti’s future at Jamiesons.
Mr Richmond was not present at the meeting of 16 March 2023 and had no personal knowledge of Mr Manti’s subsequent complaint that it had been conducted procedurally unfairly. In addition, it is his evidence that he did not know of Mr Manti’s complaints regarding the incorrect calculation of his pay made to Mr Tai; and the weight, homophobic and other sexual innuendo complaints. I accept this evidence.
However, there is no doubt that Mr Richmond was well-acquainted with Mr Manti, having been involved in his recruitment and during the latter part of 2022 and until 1 March 2023, when he was retained by Peter Gilsmore to provide financial and strategic advice to Jamiesons.
In this context, he took part in meetings which involved C & L and Mr Bartels as well as Mr Manti. It is clear from Mr Richmond’s evidence that he took a different view to Mr Manti about how Jamiesons, on the advice of C & L had approached issues to do with depreciation and the calculation of GST for audit purposes.
In his first affidavit, Mr Richmond concedes that he had formed an unfavourable impression of Mr Manti’s managerial style. He also concedes that the became aware shortly before his consultancy ended that Mr Manti had adopted accounting approaches that were contrary to what he and C & L had previously advised.
In early March of 2023 Mr Richmond was on holiday when he was contacted by Peter Gilsmore, who indicated to him that he was concerned at the impact Mr Manti was having on Jamiesons. In this context, Peter asked him if he (Mr Richmond) would be willing to take on the role of acting chair of the firm and advice and deal with issues which related to Mr Manti’s employment at the firm.
Mr Richmond agreed to do so. As a consequence, he reviewed some of the financial reports prepared by Mr Manti. He also met with Mr Bartels away from the office. This led him to preparing a report, which he sent to Peter and Sean on 27 March 2023, under the heading Frank Manti. The contents of his report can be summarised as follows;
·Mr Manti had implemented changes to accounting that might have deleterious consequence for Jamieson’s taxation liability;
·Mr Manti was intent on removing anyone from the management team who had the skillset to challenge him. This included both Mr Richmond himself and C & L;
·Mr Manti’s manner of reporting had caused Jamieson’s financier to re-consider providing credit to the firm;
·Mr Manti’s management style was confrontational and upset staff. He conceded that Mr Bartel might be overreacting but his view Mr Manti had an ability to talk the talk but not implement it.
Mr Richmond recommended to Mr Peter Gilsmore that Mr Manti’s employment be terminated within the probationary period. He indicated a willingness to facilitate this recommendation. It was in the light of Mr Richmond’s report and following Mr Manti’s failure to deliver the reports requested by him for the potential investor meeting that Peter has deposed that he made the decision to do as Mr Richmond recommended.
It is also the effect of Peter’s evidence that it was only as a consequence of Mr Richmond’s report to him that he became aware that there were issues in respect of the firm’s bank. In this context, he deposed that Mr Manti had told him that all was good with the bank and this caused him to believe that Mr Manti had misled him.
As has been previously noted, Mr Manti alleges that Mr Richmond was one of the decision-makers who determined to end his employment with the firm and therefore he should be held accessorily liable for the adverse action.
Clearly, Mr Richmond was integrally involved in the decision-making process. However, I accept that the decision was Peter Gilsmore’s alone. In this context, I do not accept that the relevant decision can be said to be tainted by any irrelevant considerations springing from Mr Richmond such as any view that he (Mr Richmond) was affronted by the fact that Mr Manti had taken different views regarding accounting issues at the firm or for any of the other reasons as alleged by Mr Manti, which he characterises as having a protected attribute.
I accept that the substantive and operative reasons Peter Gilsmore had for terminating Mr Manti’s employment was the view that he had formed that Mr Manit had alienated significant key staff members at Jamiesons; had made significant decisions regarding the firm’s external advisors, without approval; had failed to deliver key accounts for an important meeting with a potential investor; and had misled him about how profits had been stated for the firm’s financier.
In general terms, the decision was made because Peter Gilsmore had formed the view that Mr Manti was not competent to discharge the role of CFO and had misled him. This was consistent with what Mr Richmond had advised to him following his investigation. In these circumstances, as Mr Richmond had recommended, the most obvious course for the firm to take was to not continue his employment beyond the specified probation period as stipulated by his contract.
Mr Richmond’s report is dated 27 March 2023. At the time he was in China. In these circumstances, he took up Mr Richmond’s offer that he would manage the process by which Mr Manti’s employment would be terminated.
As a consequence, on 17 April 2023, Peter sent an email to Mr Manti which advised him of his (Peter’s) decision to appoint Mr Richmond as the acting chair of Jamiesons and that Mr Richmond’s first task was to prepare a reliable set of transparent result for first quarter. The obvious implication of this message being that Peter did not think that Mr Manti was capable of performing this task to his satisfaction and this was inferentially conveyed to Mr Manti. In these circumstances, it seems to me to be improbable that Mr Manti did not have some inklings that his employment was in jeopardy prior to the meeting which took place between him and Mr Richmond on 17 April.
Peter Gilsmore has also deposed that he was aware that the end of Mr Manti’s probationary period was imminent. The date provided to him in Mr Richmond’s report was 25 April as the original employment contract had been executed on 25 October 2022 and the period of probation specified was one of six months.
As previously indicated the probationary period provision could be invoked by either Mr Manti or Jamiesons. The significant aspect of the contract, as has already been quoted above, was that seven days’ notice of termination was to be given in writing during the probationary period. It is clear to me that Mr Manti knew that the probationary period provision had been engaged by Jamiesons on 17 April. However, it is his case that he did not receive the written notice actually required until later.
In these circumstances, it is apparent that Mr Richmond was aware that he would have to attend to the task allocated to him by Peter, which he had earlier indicated that he was willing to undertake, with a high degree of expedition. As a result, Mr Richmond arranged with Mr Manti to meet at Jamieson’s offices on 17 April.
It is also clear that Mr Richmond and Peter had discussions as to how the matter was to be approached. It seems an obvious inference that both had an expectation that this would not be an easy process. In this context, I accept Peter’s evidence that he was desirous of ensuring, as far as was possible, that Mr Manti not be financially disadvantaged, particularly given the fact that the contract only provided for one week’s notice and the probationary period had almost expired.
In his affidavit material, Peter deposed as follows:
I was conscious that Frank had taken a risk by accepting employment with Jamieson, which had not paid off for him. I did not want to leave him in a financially disadvantaged position, so I told Geoff that I was open to a short-term contract position (not as CFO) to assist Frank while he sourced a new role.[58]
[58] See affidavit of Peter Gilsmore filed 25 January 2024 at [50].
It was in this difficult context that the issue of sham contracting arises. Both Mr Richmond and Mr Manti agree that the meeting of 17 April did not take long and was emotionally charged. It seems that of the two parties concerned, Mr Manti was likely to be the one more distraught. In these circumstances, on balance, it seems that Mr Richmond’s account of what was discussed is likely to be the more reliable one.
The effect of Mr Richmond’s evidence was that he told Mr Manti that he (Mr Richmond) had been directed by Peter that he (Peter) wanted to finish Mr Manti’s employment but he didn’t want to leave Mr Manti financially troubled or distressed so he (Mr Richmond) had Peter’s permission to engage Mr Manti on a new contract based on a handover and the completion of any unfinished business that needed dotting and crossing but these discussions were rudimentary and ended when Mr Manti left the room.[59]
[59] See transcript at page 108.
In this context, Mr Manti asserts that there was a clear implication that Mr Richmond was offering him an alternative contract to perform that same functions as CFO but presumably subject to different terms and conditions.
In support of this submission, he points to the fact that Mr Richmond, in an exchange of text messages, which followed between the two, utilised the word contractor. Mr Richmond rejects this assertion. He deposed as follows:
So my recollection was that Peter agreed that we would not continue with your employment past your probation, but he didn't want to give you a week's notice and you feel - be financially stressed. So he left it up to me to - if I thought appropriate or if - if there was means to it, to - to offer you some sort of ability to earn some money after your contract of employment had finished. Now, we had to sit down and- and discuss that. You walked out of the room. We didn't have much of a conversation on the 17th. You were gone within 15 minutes of - of me telling that, and - and half that time, you were - you were leant over the desk moaning and being quite upset about things, so there wasn't a lot of discussions, Frank. So, you know, you've used the word "contractor” what that means, I don't know, and I've just used the same term as what you put your text to me. But there was never any discussion or thoughts from either Peter, me or you at that stage whether you would be an employee or a contractor or full-time, part-time, or what the arrangements would be. We simply hadn't got there, and that was what I was supposed to be meeting you on the 18th for - to have a chat about, whether there was any possibility of employment.[60]
[60] Ibid at page 109.
I accept Mr Richmond’s evidence. He and Peter were motivated by a desire to ensure that what each accepted would be a difficult situation for Mr Manti was handled as sensitively as possible and some attempts be made to minimise the financial implication of losing his job.
However, it is clear to me that it was Peter’s preference that Mr Manti leave Jamiesons, and he could see not place for him at the firm given the event that had led to the need for the meeting of 17 April. As such, I reject the contention that there was any attempt on Jamieson’s part to engage Mr Manti in some form of sham contract by replicating his then form his employment on another contractual basis.
From Jamiesons perspective what was envisaged was that something would be done to assist Mr Manti on a temporary basis until he could decide what he wanted to do. This proposal was rudimentary in its scope and was neve fleshed out because of what Mr Manti himself did, which was misuse the firm’s credit card and withdraw from any form of constructive engagement with Jamiesons.
Clearly, in the meeting of 17 April, Mr Manti was orally informed by Mr Richmond that his employment as Jamieson’s CFO would be terminated during the probationary period. As noted above, the relevant contract required this notice to be given in writing.
It is Mr Manti’s evidence that he fell ill following the meeting. It is apparent that he left Jamieson’s office abruptly and did not indicate when he would return. As a consequence, the only mechanism reasonably open to contact him was through text message.
Mr Manti asserts that he began working from home following the meeting of 17 April. This seems to me to be highly improbable and more likely to be factually untrue given my earlier findings regarding him utilising the firm’s corporate credit card to engage a lawyer in Melbourne and purchase 14 return airflights in his name. However, I accept that he was distressed following the meeting.
I accept Mr Richmond’s evidence that he was desirous of meeting again with Mr Manti, as soon as practicable following the meeting of 17 April, in order to engage with him further as to how he and Mr Manti could work through the practical implications of his termination from the role for CFO at Jamiesons. In this context, he proposed that the two should meet at a neutral venue close to Mr Manti’s home, on 18 April.
This meeting did not eventuate as Mr Manti sent a text message to Mr Richmond shortly prior to the time scheduled for the meeting to begin in which he indicated that he was still unwell and requested that the meeting be re-scheduled for 2.00 pm the following day. Mr Richmond responded that he would call tomorrow.
Given these circumstances and no doubt because Mr Richmond was aware that the notice of termination had not been provided in writing to Mr Manti, he elected to send a letter electronically to Mr Manti on the evening of 18 April 2023. This was done by an email with a formal letter as an attachment. This was sent to Mr Manti’s email account at Outlook, which was the address contained in Employment Hero.
The letter which he sent read as follows:
As discussed at the office yesterday I have been instructed to advice you that your contract of employment will not be extended past the probationary period.
As per the terms of your contract this letter is one week’s written notice to terminate your employment. The contract allows such termination for any reason and the reason simply is your employer does not have the confidence to extend your contract past the Probationary Period.
Mr Manti and Mr Richmond did not physically meet on 19 April. They did however exchange text messages in the afternoon of that day, in one of which Mr Richmond inquired whether Mr Manti had received the email sent to his (Mr Manti’s) personal address. To which Mr Manti replied which one. Gmail or Outlook? Will check both later tonight. Mr Richmond indicated Outlook, give me a call tomorrow am & we can arrange a chat.
The implication of Mr Manti’s text is that he had an account at Outlook and he was able to access it. In addition, on the basis of the evidence of Mr Tai, I accept that this was the email address Mr Manti had provided to Jamiesons as his personal address. It is also the case that regardless of whether he had or had not requested a change in details, Mr Manti had not been told of any change in this regard by the firm.
Further, by his actions, Mr Manti had made it impossible for him to be contacted at the office or through Employment Hero, as he had effectively ceased his employment with Jamiesons by leaving its premises and subsequently failing to return after his meeting with Mr Richmond on 17 April.
In all these circumstances, it is my view that section 14A of the Electronic Transactions Act 1999 (Cth) has application. It reads as follows:
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where electronic communication is taken to have been received under section 14B.
Essentially the provision provides that an email is taken to have been delivered at the time it is capable of being retrieved at the relevant address designated by its recipient. I am satisfied that the relevant email was sent to an address which had been designated by Mr Manti, and it was capable of being retrieved by him at the time it was sent by Mr Richmond on 18 April.
The evidence indicates that Mr Manti was able to access the letter the following day when Mr Richmond informed him that the letter had been sent to his (Mr Manti’s) outlook account, which was the private email address Jamiesons had for him.
Clearly, it would have been preferable if this significant letter had been given personally to Mr Manti, but this was not feasible given his withdrawal from the office. In addition, there can be no doubt that Mr Manti was aware that his employment as CFO was to be terminated.
In my estimation there was an atmosphere of dysfunction surrounding the events which followed 17 April. This was largely created by Mr Manti’s action alone. He rendered any sensible discussion about how issues surrounding his pre-existing FIFO entitlements would be calculated and how these would be balanced against his accrued leave entitlements impossible.
The most significant complicating factor in this regard was the discovery by Mr Tai and Mr Richmond that Mr Manti had misappropriated a significant sum of money by his use of the firm’s corporate credit card.
As previously indicated, during the course of these proceedings, Ms Stewart, counsel for Jamiesons, conceded that her client had underpaid Mr Manti in respect of his leave entitlement and has thus, from its perspective, inadvertently breached the provisions of the National Employment Standards relating to annual leave. Pursuant to section 45 of the FWA this is a civil remedy provision.
Section 545(1) provides this court with a discretion to make any order it considers appropriate if it is satisfied that there has been a breach of a civil remedy provision. In the circumstances of this matter, I am satisfied that this discretion should be exercised in favour of the respondents.
FINDINGS & CONCLUSIONS
At an earlier stage of the proceedings, after having summarised the background which gave rise to these proceedings, I identified nine evidentiary controversies which need to be resolved. In general terms, I have found each of the respondents, along with Mr Tai, to be significantly more credible witnesses that Mr Manti. As a consequence, I find as follows:
·I do not consider that any false and misleading statements were made to Mr Manti to induce him to take up the offer of employment at Jamiesons and unfairly cause him to resign from his pre-existing position in Melbourne. It was clear that his employment was subject to a condition that he successfully complete a period of probation.
·The cursory discussion which occurred between Mr Manti and Peter Gilsmore regarding the former’s purchase of an investment property in North Adelaide did not amount to any variation of the contract of employment between Jamiesons and Mr Manti and did not represent the promise to pay him a bonus of $13,000.00:
·The various complaints made by Mr Manti about his sexuality and weight and the issues raised by him about how his pay had been calculated and other issues relating to accounting issues at Jamiesons may fall within the parameters of section 341(1)(c) of the FWA;
·However, these complaints, which were amorphous in nature, were not influential in the decision made by Peter Gilsmore to take adverse action against Mr Manti, which took the form of terminating his employment;
·The decision-maker in respect of this decision was Peter Gilsmore. Mr Richmond’s input into this decision was significant but it was not affected by any consideration prohibited or protected under the Act;
·The substantive and operative reason for Mr Manti’s termination was that Peter Gilsmore had lost confidence in Mr Manti's capacity to discharge the role of CFO at Jamiesons, which was demonstrated by his (Peter’s) view that Mr Manti had alienated a number of valued staff members at the firm by his management style and had failed to produce accounts required to advance his proposal to secure the sale of the business;
·These reasons are not protected under the Act;
·Mr Richmond did not engage in any process of sham contracting towards Mr Manti;
·The six-month probationary period specified in the contract of employment ended on 25 April 2022;
·Mr Richmond formally provided notice to Mr Manti that Jamiesons would exercise its contractual right to engage the probationary period when he sent an email to this effect to Mr Manti’s private email address on 18 April 2022 and Mr Manti was able to access this correspondence on that date;
·The court should exercise its discretion not to impose a penalty for the breach of the National Employment Standards.
Given these findings, the order of the court will be that Mr Manti’s application filed on 10 July 2022 is dismissed. For these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 19 June 2025
SCHEDULE OF PARTIES
ADG 200 of 2023 Respondents
Fourth Respondent:
GEOFF RICHMOND
0
15
5