Mollasalehi v Anluca Pty Ltd trading as Brunetti Oro
[2025] FedCFamC2G 39
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mollasalehi v Anluca Pty Ltd trading as Brunetti Oro [2025] FedCFamC2G 39
File number: MLG 878 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 23 January 2025 Catchwords: INDUSTRIAL LAW – Fair Work – Where the Applicant alleged the Respondent took adverse action against him because of a workplace complaint – Where the Applicant alleged the Respondent took adverse action against him because of his race – Where the Applicant alleged the Respondent contravened s. 323 of the Act because it failed to pay him in full at least monthly – Where the Applicant alleged that the Respondent organised action with an intent to coerce the Applicant not to exercise a workplace right in contravention of s. 343 of the Act – Where the Applicant alleged the Respondent exerted undue influence or undue pressure in contravention of s. 344 of the Act – Where the Applicant alleged the Respondent made a false or misleading representation in contravention s.345 of the Act – None of the Applicant’s claims is sustained – Application dismissed Legislation: Fair Work Act 2009 (Cth) ss. 45, 323, 340, 341, 342, 343, 344, 345, 348, 351, 361, 793 Cases cited: John Holland Pty Ltd v Australian Manufacturing Workers’ Union (2009) 174 FCR 526; [2009] FCA 235
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441
Serpanos v Commonwealth of Australia [2022] FCA 1226,
Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441; [2014] FCAFC 184
Wong v National Australia Bank Limited [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 188 Date of last submissions: 11 October 2024 Date of hearing: 7– 9, 11 October 2024 Applicant: In person Counsel for the Respondent: Mr J Fetter Solicitor for the Respondent: Gilchrist Connell ORDERS
MLG 878 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMADREZA (MATT) MOLLASALEHI
Applicant
AND: ANLUCA PTY LTD (BRUNETTI ORO)
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.Subject to reserving the parties’ positions as to costs, the application 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 CHAMPION:
INTRODUCTION
Mr Mohammadreza Mollasalehi (the Applicant and/or Mr Salehi) alleges that Anluca Pty Ltd (t/as Brunetti Oro) contravened provisions of Part 3.1 of the Fair Work Act 2009 (Cth) (Act).
Brunetti Oro is a retail and wholesale café and cake business. Mr Yuri Angele was (and is) Brunetti Oro’s CEO and sole director.
Brunetti Oro has approximately 200 employees. It operates from Brunswick (its factory and headquarters) and has retail locations including in Flinders Lane and Myer. Its senior employees — approximately 12 in number — are based at its Brunswick headquarters.
On 30 August 2022 Mr Salehi signed an employment contract as a full-time employee as one of Brunetti Oro’s small cohort of delivery drivers. On 2 September 2022 Mr Salehi started work. Mr Salehi reported to the logistics supervisor, Ms Jessica di Norcia.
On 22 March 2023, after 6½ months’ employment, the Respondent dismissed the Applicant from employment. Mr Angele was the sole decision-maker as to Brunetti Oro’s decision to dismiss Mr Salehi from employment.
Mr Salehi made twelve claims as to contraventions of the Act. It is those twelve claims I must decide. The twelve claims are detailed below and provide the structure for these reasons for judgment.
Before turning to the detail of the twelve claims, one way in which Mr Salehi’s overarching grievance might be understood is that in about the seventh week of his employment (about 16–20 October 2022) he made a complaint initially to Mr Madat Farmonov, Brunetti Oro’s in-house accountant, who had been involved in his employment. Subsequently, he escalated his complaint to the FWO.
The complaint had at least two aspects: first, that he had been short paid approximately $160 (paid for 4 days’ work instead of 5 in the relevant week) and, secondly, that a provision of his written contract (cl. 8.2) provided that if he regularly worked less than 38 hours weekly Brunetti Oro was permitted to reduce his base salary. His grievance was that any right for Brunetti Oro to reduce his base salary was inconsistent with his full-time employment or “illegal” or “unlawful”.
Mr Salehi in effect submitted that once he had made this complaint about the short payment and the contract term permitting a reduction of his base salary, Brunetti Oro embarked upon a punitive campaign against him because he had made that complaint — making his employment untenable — and culminating in his dismissal on 22 March 2023.
Further and/or alternatively, Mr Salehi alleged that Brunetti Oro discriminated against him because of his Iranian background, that is, his “race” or “national origin” under s. 351 of the Act.
Brunetti Oro admitted the complaints about the short payment and the contract term which permitted reduction of the base salary (both the complaint Mr Salehi made to Mr Farmonov as a manager and its subsequent escalation to the Fair Work Ombudsman) were complaints Mr Salehi was able to make as an employee in relation to his employment under s. 341(1)(c)(ii) of the Act.
Brunetti Oro ran what might be described as a positive and a negative defence to Mr Salehi’s claims. It led “positive” evidence that it dismissed Mr Salehi from employment because of — and only because of — performance concerns. I have accepted Brunetti Oro’s “positive” case. I have found that Mr Angele dismissed Mr Salehi from employment not because of the complaint or Mr Salehi’s Iranian background but because of performance concerns. Mr Angele referred to four performance concerns: Mr Salehi’s punctuality, Mr Salehi’s refusal to perform duties as directed, Mr Salehi’s failure to conform with a direction that he send a text to customers ahead of deliveries and Mr Salehi’s abusive messages about his colleagues on a group chat. Further, I accept that it was important to Mr Angele that Mr Salehi was not prepared to take responsibility for his conduct as to these issues or recognise any need to change his conduct.
As to its “negative” defence, or its answer to Mr Salehi’s allegations, Brunetti Oro has also proved the complaint was not a substantial or operative reason for dismissal. Brunetti Oro promptly fixed the short payment in October 2022. Brunetti Oro never in fact reduced Mr Salehi’s base salary under cl. 8.2 of his contract. Further, in January 2023, it sought Mr Salehi’s agreement to vary his contract to remove its right to reduce his base salary under cl. 8.2. Rather than taking adverse action against Mr Salehi because of his complaint about his contract, it sought to take active remedial action to address his concern. Mr Salehi did not agree to vary his contract as Brunetti Oro proposed.
I also accept Mr Angele’s adamant denial that Mr Salehi’s Iranian background was a substantial or operative reason for his dismissal. There was no evidence beyond Mr Salehi’s bare assertion of any causal nexus between the facts of Mr Salehi’s race and the facts of his dismissal.
None of Mr Salehi’s twelve claims can be sustained. I will dismiss his application. My more detailed reasons follow.
RELEVANT PEOPLE
I refer to the following people in these reasons identifying their position at the relevant time:
(a)Mr Yuri Angele was Brunetti Oro’s CEO and sole director;
(b)Ms Jessica di Norcia was Brunetti Oro’s logistics supervisor and Mr Salehi’s line manager;
(c)Mr Madat Farmonov was Brunetti Oro’s in-house accountant and the person from Brunetti Oro engaged in Mr Salehi’s initial employment;
(d)Mr Mario Romeo was another delivery driver employed by Brunetti Oro with whom Mr Salehi had an altercation in December 2022;
(e)Ms Francesca Gerada was an employee of Brunetti Oro and a witness to the incident between Mr Romeo and Mr Salehi on 13 December 2022;
(f)Ms Judith Meharry was Brunetti Oro’s Human Resources Officer; and
(g)Ms Lucia Stola was employed by Brunetti Oro in the role of Human Resources/Administration Assistant and a notetaker as to certain meetings.
IDENTIFYING MR SALEHI’S CLAIMS
Mr Salehi was self-represented throughout the litigation including at trial. English is not his first language. At trial, he presented his case in English but had an interpreter’s assistance as the need arose.
There were no pleadings. Pre-trial, because Brunetti Oro was entitled to know the case it had to meet and so as to define trial issues, on 31 August 2023 at an interlocutory hearing I made orders that Mr Salehi file and serve an outline of submissions which set out the factual allegations he made as to breaches of Part 3.1, identify how he alleged those factual allegations amounted to breaches of Part 3.1 and identify which particular statutory provisions of Part 3.1 he alleged Brunetti Oro had breached.
Mr Salehi duly filed submissions dated 17 November 2023. In the course of a longer narrative, he made 12 claims. He grouped those claims under four headings taken from the structure of Part 3.1 of the Act as to adverse action claims, coercion claims, a misrepresentation claim and undue influence or pressure claim. Some additional time at the outset of the trial was spent to clarify the content of Mr Salehi’s claims. It is Mr Salehi’s 12 claims as he framed them which I must determine.
WHAT ARE THE CLAIMS TO BE DECIDED?
The 12 claims were as follows (adopting as appropriate the words Mr Salehi himself deployed).
The adverse action claims (claims 1–9) were as follows:
(1)That Brunetti Oro dismissed him without acceptable reason and contravened s. 340 of the Act;
(2)That Brunetti Oro caused him “physical or mental injury … during work” because he complained about the salary clause in his contract;
(3)That Brunetti Oro changed his “job position to the detriment of the employee”;
(4)That one reason Brunetti Oro dismissed Mr Salehi was discrimination because of his Iranian background;
(5)That Brunetti Oro was “preventing employees from using welfare services”. As an example, Mr Salehi said that he was unable to make coffee or have access to the employee kitchen at the Brunswick premises;
(6)That there was “serious misconduct” as to how the company dealt with his complaint as to the short payment of his salary on or about 19 October 2022. Mr Salehi referred in particular to a series of text messages he exchanged with Mr Farmonov between 19 October 2022 and 26 October 2022;
(7)That there was an “illegal deduction from the employee’s salary” of $160 contrary to s.323 of the Act;
(8)That Brunetti Oro organised for Mr Romeo to make a death threat against Mr Salehi to punish him for complaining about the salary clause in his contract; and
(9)That Ms Di Norcia engaged in “racist behaviour” including by telling Mr Salehi that he had no right to talk about God at work and thereby contravened s. 351 of the Act.
The coercion claim (claim 10) was as follows:
(10)That from about October 2022 Brunetti Oro engaged in “coercion” in contravention of ss. 343 and 348 of the Act by telling employees not to be nice to him, telling employees false information about him and giving him a new contract with higher hours.
The misrepresentation claim under s. 345 of the Act (claim 11) was as follows:
(11)That Brunetti Oro knowingly or recklessly made a false or misleading misrepresentation which contravened s. 345 of the FW Act by wrongly changing the Mr Salehi’s hours or by Ms Di Norcia making false statements to Ms Meharry.
The undue influence or pressure claim under s. 344 of the Act (claim 12) was as follows:
(12)That Brunetti Oro contravened s. 344 of the FW Act by putting undue influence or undue pressure on Mr Salehi to work long hours and pressuring him to come to a meeting on 20 March 2023 without enough time to prepare.
Some facts which underpin these claims are overlapping. I have dealt sequentially with claims 1–12.
CLAIM 1: WHY WAS THE APPLICANT DISMISSED?
Mr Salehi submitted that the reasons for his dismissal were not acceptable or fair. He further submitted that because the reasons were unacceptable or unfair, Brunetti Oro contravened s. 340 of the Act.
Not an unfair dismissal claim
Mr Salehi’s claim that he was dismissed “without acceptable reason” does not directly engage with the structure of the prohibitions in Part 3.1. As Bromberg J said in Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48], a “broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”. This was not an unfair dismissal claim. It was not necessary for Brunetti Oro to prove that the reasons it dismissed Mr Salehi were procedurally or substantively fair (Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31]; Serpanos v Commonwealth of Australia [2022] FCA 1226, [124]).
I qualify that statement by noting that “any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way” may not be “wholly irrelevant”. This is because it may be possible to infer that if the reasons nominated were illogical, they were not in fact the reasons which actuated the respondent’s conduct (Serpanos, [126]; citing Wong v National Australia Bank Limited [2021] FCA 671, [83]).
In this case, Brunetti Oro has proved that it acted because Mr Angele genuinely held the view that Mr Salehi was not performing the duties of his job in a satisfactory way. Further, Mr Salehi refused to take responsibility for his problems in his performance which militated against the possibility of any improvement in his performance.
Mr Angele was the sole decision-maker
“Where, as here, it is alleged that a body corporate has engaged in unlawful adverse action, s. 793 of the Act serves to assist in attributing to it the conduct of the human agents through whom it acts and, in certain circumstances, the state or states of mind with which they do so” (Serpanos, [76]).
Mr Yuri Angele, Brunetti Oro’s sole director and Chief Executive Officer, gave evidence that he was the sole decision-maker in the decision to dismiss Mr Salehi from employment. The proposition that Mr Angele was the sole decision-maker as to the dismissal was not challenged. I accept that Mr Angele was the sole decision-maker.
I find that Mr Angele was the sole decision-maker as to the dismissal. It is Mr Angele’s reasons and Mr Angele’s state of mind — attributed to Brunetti Oro under s. 793 of the Act — that must be considered as to whether there was any contravention of any provision of Part 3.1.
Mr Angele’s reasons
Mr Angele’s evidence was that he dismissed Mr Salehi from employment because he believed that Mr Salehi was not performing his duties as directed. Further, Mr Salehi refused to take responsibility for his actions. I find that Mr Angele genuinely held concerns about Mr Salehi’s performance. I find that the dismissal was not for any reason prohibited under Part 3.1.
Mr Angele identified four main performance concerns: first, that there was a continuing problem with Mr Salehi’s punctuality; second, Mr Salehi refused to perform duties such as filling his van with petrol, washing the van and packing duties; third, despite direction to send a text message to customers before delivery he had not done so; and fourth, he had engaged in abusive behaviour. As to that abusive behaviour in a group chat with various employees, Mr Salehi had described Mr Farmonov as his “enemy”. In a group chat he had accused Ms Di Norcia of engaging in “racist behaviour”. Mr Angele said that it was important to him as the decision-maker that Mr Salehi accepted no responsibility and no willingness to change as to these issues.
There was ample evidence as to why Mr Angele held the concerns that he did.
Performance concerns
Brunetti Oro’s performance concerns arose early in Mr Salehi’s employment. This is not a case in which an employer suddenly, in a reversal of its attitude, alleged that there were performance concerns with an employee whom it had previously regarded as a satisfactory performer up until the time of a workplace complaint. There was significant objective evidence in the documents of Brunetti Oro’s concerns about Mr Salehi’s performance before March 2022 when it moved to dismiss him from employment.
On 12 December 2022 Ms Di Norcia convened a meeting about concerns about Mr Salehi’s performance of his duties. Ms Stola, an impressive witness, took detailed notes of the meeting on 12 December 2022 and of other events which had some significance in the evidence. I find that Ms Stola’s contemporaneous notes are the best evidence of what occurred in the meeting on 12 December 2022. The issues included that that there had been difficulties in delivering feedback due to “aggressive responsiveness”, delays on rostered shifts, delays in customer deliveries and switching off the logistic tracking app. Ms Stola recorded the following:
Jessica [Di Norcia] requests an informal meeting to discuss about some performance issues related to Matt
•Difficulties in delivering feedback due to Matt aggressive responsiveness, cutting her out and talking over her
•Regular delays on rostered shifts
•Regular delays on customers deliveries
•Logistic tracking app switched off during shifts
•Regularly working less that 38 hours a week and refusing to undertake any other duties to full fill the 38 hours
Ms Stola’s notes ended on the basis that the parties agreed to work on communication.
The performance issues Brunetti Oro’s managers raised were independent of Mr Salehi’s October 2022 complaint about the short payment and the contract term I referred to above. Suffice to say, Brunetti Oro’s position was that Mr Salehi’s performance in the first three months of his employment – September 2022 - December 2022 – had necessitated a meeting with him.
In the new year, on 30 January 2023 Ms Meharry, Brunetti Oro’s senior HR employee, emailed Ms Di Norcia, the line manager, reminding her to discuss with Mr Salehi the requirements to text every customer when commencing their delivery journey. Further, she asked about an issue with Mr Salehi’s “continual lateness for shift start time. Has this improved?”. The contemporaneous written record supports the contention that Brunetti Oro’s performance concerns continued into 2023.
Under cover of an email dated 23 January 2023, Ms Meharry had provided a position description to Mr Salehi. Among other matters it included the following as to key accountabilities of Mr Salehi’s role:
Ensure maintenance and cleanliness of delivery vehicles and ensure vehicle is fuelled as required;
…
Additional tasks as directed by the Logistics Team including incidental and peripheral tasks that you have the skills to undertake e.g., packing and storage
…
Respond to and treat colleagues with professional respect and courtesy.
…
Work as an integral part of the team.
…
Eradicate negative politics by minimising third party communication.
…
No internal or external customer complaints.The petrol tank
In January 2023 Ms Di Norcia’s evidence was that she had a discussion with Mr Salehi about filling up the petrol tank before coming back to the factory at the end-of-day clock off. She said that afterwards she checked the vehicle on a number of occasions and the tank was still empty. I accept her evidence. It is apparent that Mr Salehi knew of the requirement to fuel the vehicle because on 2 February 2023 he sent a photo to the group chat that his vehicle did not have fuel today. Ms Di Norcia responded that he should report to her “not on the chat”.
Van washing - 11 March 2023
On 11 March 2023 Ms Di Norcia and Mr Salehi had the following text message exchange:
Sat, Mar 11 at 11:36 am
Ms Di Norcia: Good morning guys! … I expect all vehicles to be washed and cleaned on the inside. Petrol tanks filled up and behind the gates. Any time left over please ask dimmi what needs to be done for packaging. Thanks and enjoy your day!
Sat, Mar 11 at 2:41 pm
Mr Salehi:Outside is to hot and sunny, it’s not good time for the washing the car. Because the paint of the car may be damaged.
Ms Di Norcia: @Against Exploitation it’s a good day for the car to be washed. Please do it. Thanks
Sat, Mar 11 at 3:46 pm
Mr Salehi:Washing done, but …… ! SANJAB tells you (JESSICA) to make pressure to MATT and tell MATT to wash the car. Then you leave a message on WhatsApp to the drivers to wash the cars (Under sunlight, without safety boots and helmet). (This is while the car is completely clean and does not need to be washed). Then, while I’m washing the car, you tell the SANJAB to walk past Matt smiling and go home. Know that your work is unethical and illegal. But I am strong and I will not fail. Stop these childish and illegal games, but if you like, Continue this game. I know Jessica, Madat and Sanjab have made a deal to destroy me. But really you can’t. I have full proof of your illegal behaviour towards me and other employees… Do not forget that the contract you (BRUNETTI ORO) made with me is illegal and I reserve the right to sue you. Any pressure against me to sign a new contract is also illegal. Any threat and dangerous behaviour against me after this message can be prosecuted. regards
Ms Di Norcia: @Against Exploitation anything you would like to say, come and talk to me.
Refusal to perform packing duties
There was evidence that Mr Salehi refused to perform packing duties because he believed it was outside the scope of his role as a delivery driver. In the meeting on 12 December 2022, to which I have referred above, Ms Stola’s note as to Mr Salehi’s evidence (which I accept) was that Mr Salehi refused to perform packing duties. Ms Stola’s note was as follows: “My job is to drive not pack, I don’t feel comfortable performing duties I don’t know”.
Not texting customers before deliveries
Mr Di Norcia’s evidence was (and I accept) that she had told Mr Salehi that he ought to text customers before deliveries. Ms Di Norcia said:
53.On 16 February 2023, I had a conversation with Matt regarding his communications with customers. In particular, I asked him if he had been sending text messages to all customers prior to leaving their deliveries. He replied, “yes, of course”.
54.I knew that Matt was being untruthful, as I had seen the history of messages on the work phone which showed that only 10 out of the 19 customers, he had seen has been send text messages prior to their delivery being made.
55.I showed Matt the evidence to which he responded, “maybe I forgot” and “it could have been bad internet or phone issues”.
As to the objective evidence, the phone records were that on 14 February 2023 Mr Salehi had texted 8 of 28 customers, on 15 February 2023 9 of 21, on 16 February 2023 2 of 14 and on 17 February 2023 12 of 20 (Ex. R6). The objective evidence disclosed that Mr Salehi was not doing as he had been directed in texting customers before deliveries.
Lawful and reasonable directions
Ms Di Norcia was Mr Salehi’s manager. Directions from her to fuel the vehicle, wash the vehicle, perform incidental packing duties and text customers before deliveries were within the ambit of lawful and reasonable directions a manager may routinely give to an employee. Moreover, the ambit of Mr Salehi’s responsibilities in the position description included cleanliness of delivery vehicles, fuelling the van and incidental duties. It was a lawful and reasonable direction for Ms Di Norcia to direct him to perform each of these duties.
Group chat posts
There was objective evidence Mr Salehi had engaged in unsatisfactory performance by referring to Mr Farmonov as an “enemy” in a group chat.
The context of Mr Salehi referring to Mr Farmonov as an “enemy” was that on 8 March 2023 Mr Salehi sent an email to Ms Meharry asking the company to pay a speeding fine of $231.
On 9 March 2023 Ms Meharry responded:
hi Matt, I have forwarded your email to Madat for advice. I’m sure he will advise you regarding Brunetti Oro’s policy regarding fines.
While I have you, can you please forward a signed copy of your amended contract to me as soon as possible.
Mr Farmonov responded that drivers were responsible for their own fines.
In his evidence, Mr Farmonov acknowledged that Brunetti Oro had paid a parking fine on 1 November 2022 in circumstances in which a van had been parked on the street outside the factory between shifts and the company was unable to determine which driver was responsible. It was after Mr Farmonov declined to have Brunetti Oro pay the speeding fine that Mr Salehi made the post to a group chat of employees of Brunetti Oro in which he had described Mr Farmonov as an “enemy”. The exchange was as follows (CB592 - CB594)
Sun, 12 Mar
Mr Farmonov: Hi Matt, if you have any issues come and see me separately! …The concerns you have raised are not true and can form a case for defamation against me and the company! I would like you to think about your message and come see me on Tuesday!
Mr Mollasalehi: Dear friend, Madat !!! It seems from your vague and incomplete answer, either you didn't read my previous message properly or you didn't understand it, or you intend to disturb the public mind. It was good, instead of playing with words and phrases, you answered my message completely and correctly.
…
3- Give me the right to consider you as my enemy, because your behaviour shows that.
[Emphasis added]
On 17 March 2023 Mr Salehi sent a text message addressed to Ms Di Norcia in the Brunetti Oro driver’s group chat. The Applicant accused Ms Di Norcia of “racist” behaviour:
Mr Mollasalehi: Dear Jessica This is the third time you have insulted me while making coffee. Second one yesterday, third one today. First one was 6 months ago. I reported this today to a Member of Parliament in Australia and to the Australian Immigration Service. If it happens again, I will also inform the police and social networks. Please stop your racist behaviour with me. Thanks
[Emphasis added]
Mr Salehi’s reasoning process in his allegation that Ms Di Norcia had engaged in racist behaviour because she had asked him to stop making coffee was not clear. That is, there was no link between her request that he stop making coffee and his race. In any event, if Mr Salehi wished to make an allegation that Ms Di Norcia had engaged in racist behaviour, it was unsatisfactory for him to make the allegation in a group chat.
Mr Angele was entitled to regard the fact that Mr Salehi had made these allegations against her, Mr Farmonov and Ms Di Norcia in the forum of a group chat as unsatisfactory performance or conduct. There was a distinction between Mr Salehi’s right to express a genuine concern (which was permissible) and the mode of making of serious allegations in the forum of a group chat which was unsatisfactory.
Customer complaints
It was also the fact that there had been customer complaints about Mr Salehi’s performance. One customer had written that the service was “incredibly disappointing”.
Events leading to dismissal
On 17 March 2023 Ms Di Norcia went to see Ms Meharry. The catalyst was Mr Salehi’s group chat post “please stop your racist behaviour” which was Mr Salehi’s response to Ms Di Norcia’s request that he not make coffee on work time. Ms Meharry said that she relayed the information Ms Di Norcia had shared with her as to concerns about Mr Salehi’s performance to Mr Angele. Ms Meharry also copied Mr Angele on an email to Mr Salehi dated 17 March 2023 which detailed those concerns.
Ms Di Norcia’s written report dated 21 March 2023
Ms Di Norcia, in line with the request of Ms Meharry, provided a written report dated 21 March 2023 to Ms Meharry, the senior human resources employee, as to concerns about Mr Salehi’s performance, many of which I have traversed above.
In this case, I find that Mr Angele was the sole decision-maker. Necessarily, Mr Angele was going to place significant weight on the report from the relevant line manager about her assessment of Mr Salehi’s performance.
Is Ms Di Norcia’s state of mind relevant? In Serpanos at [122] Snaden J said that the search for reasons “animating particular conduct – especially corporate conduct – is (or can be) notoriously difficult”.
In Serpanos at [123], Snaden J continued that the state of the law is that:
the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. That threshold level has been described as “indispensable” … “material” … and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’…”
[Authorities omitted]
It might be argued that if Ms Di Norcia acted because of Mr Salehi’s race or because he had made a complaint about his contract, her state of mind affected or infected the corporate state of mind of Brunetti Oro.
This is not necessary to decide because I am satisfied that Ms Di Norcia’s reasons for expressing her performance concerns summarised in writing in her report of 21 March 2023 were because she genuinely held those concerns. Ms Di Norcia included in her written report details of many of the issues outlined above. Ms Di Norcia wrote (among other matters) that Mr Salehi “refuses to take instructions from myself as supervisor”. She detailed that he “doesn’t fill the tank of petrol before returning to the factory after the last drop”, that he “refuses to come to work on time”, that he “doesn’t text 40% of the customers before leaving the previous job” and that he “doesn’t want to wash the car when asked (twice in 6 months).”
I am satisfied that Ms Di Norcia genuinely held these concerns.
Emphasising that this is not an unfair dismissal case, nonetheless, there were sound, defensible and well-founded reasons for Brunetti Oro’s managers to be concerned about Mr Salehi’s performance — and ultimately Mr Angele as the decision-maker to be concerned — in terms of his failure to follow directions and not treating colleagues with professional respect and courtesy.
Dismissal
On 22 March 2023, a formal meeting was held between Mr Salehi, Ms Meharry and Mr Angele. It was a long meeting and it was recorded.
Following the meeting, Brunetti Oro dismissed Mr Salehi from its employment by written letter. It wrote:
I refer to our meeting on 22/03/23 which was attended by you, Judith Meharry (HR) and Yuri Angele (Owner and Director). You did not bring a support person. During the meeting we discussed concerns you demonstrated underperformance and serious misconduct by:
·Non-compliance with company policies, procedures, or practices (failure to maintain punctuality impacting delivery schedules, failure to follow correct delivery procedure – not texting customers upon commencing route to delivery address – both issues have previously been raised for improvement and have not improved)
·Failure to follow lawful and reasonable direction given by management or an appropriate member of the Brunetti Oro team that is consistent with your contract of employment (refusal to undertake peripheral duties as per contract clause 5.2.g – refusal to assist with peripheral duties in the Logistics Team including packing and maintenance of delivery vehicle – refilling tank at end of shift). Serious misconduct
·Wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment (refusal to follow lawful and reasonable direction given by management to undertake peripheral tasks of the Delivery Driver role at Brunetti Oro. Serious misconduct
·Threatening, violent or offensive behaviour (offensive and threatening language in WhatsApp group directed toward Madat Farmonov “consider you as my enemy”.
I find that the reasons for Mr Angele’s decision were the reasons set out in the dismissal letter dated 22 March 2023 and not any reasons prohibited under Part 3.1 of the Act.
Mr Angele also said that it was important to him that there was no prospect of change in Mr Salehi’s performance (T398:L39):
…my biggest concern was that Matt showed no remorse in terms of trying to correct his behaviour in the meeting. So I felt that the situation was a hopeless situation for that reason
As counsel for Brunetti Oro put, it Mr Angele’s perception “that there were problems with the performance … was well-founded in the objective reality about the expectations of the business that had been communicated to Mr Salehi” (T457: L21:23).
I find that any complaint about short payment or the contract term which permitted a reduction of base salary was not a substantive or operative reason for the dismissal. I have dealt with (and rejected) the claim that Brunetti Oro dismissed Mr Salehi because of his race in claim 4 below.
I find that there was no contravention of any section of Part 3.1 of the Act as to claim 1.
CLAIM 2: DID BRUNETTI ORO CAUSE “PHYSICAL OR MENTAL INJURY TO THE EMPLOYEE DURING WORK” BECAUSE HE COMPLAINED ABOUT THE SALARY CLAUSE IN HIS CONTRACT?
My understanding of Mr Salehi’s claim 2 reflects Brunetti Oro’s understanding as follows:
(1)That the Respondent has caused the Applicant injury (by pressuring him so much that he got nervous shock and his hands shook);
(2)That the Respondent did this to punish him for complaining about the salary clause in his contract;
(3)That because this was the Respondent’s reason, it has contravened s. 340 of the FWA.
Mr Salehi’s evidence was he was stressed. He said in his affidavit: “Their intense pressure on me has caused a nervous shock in me and my hands have been shaking violently for some time”. He called no medical evidence as to the nature of his stress.
Although it was not necessary to develop the argument in detail, Brunetti Oro accepted that a “campaign of ill-treatment” can be adverse action as either an injury to the employee in his employment or an alteration to the position of the employee to the employee’s prejudice (see s. 342, table, item 1(b) and (c)].
The precise actions said to constitute the campaign of ill-treatment which Mr Salehi alleged Brunetti Oro took so as to impose intense pressure on him remained unclear.
Cake delivery: 10 December 2022
One possible example of “pressure” concerned events around the delivery of a cake to Frankston on 10 December 2022. Ms Di Norcia had an expectation that Mr Salehi, who was then in the Melbourne CBD would deliver a cake to Frankston. Ms Di Norcia believed that he had earlier agreed to do so. On 10 December 2022 (Saturday) there was a phone call between the Applicant and Ms Di Norcia at about 6.15 pm. Mr Salehi was aggrieved at having to work so late.
Mr Salehi said that he called Ms Di Norcia and told her that his working hours were until 5:30 PM, but it was now 6:20 PM and by the time he finished his work it would be 9 PM. He said that “for goodwill, [he] agreed to work one hour to 90 minutes more. But no more. She yelled at me and hung up the phone”.
There ensued a text exchange between Ms Di Norcia and Mr Salehi as follows:
Sat, Dec 10 at 6:26 PM
Ms Di Norcia: If you are not going to listen to me and yell over me then there is not point talking to you. When you have calmed down then call me
Mr Salehi: Hi dear Jessica I’m really so upset about your behaviour today on the phone with me. My working hours are until 5:30 in the afternoon. As a courtesy and help to the company, I can work for an hour or ninety minutes more for the company for free. If you pressure me to do more for free, This is illegal, And I will complain to the company and the relevant manager. Please stop inhumane and non-human rights pressures on me. Bullying in any form is prohibited in Australia. If I go back to Brunswick right now, it will be 7:30. Now you want me to drive another hour CITY and do one more thing before I go back to Brunswick?!?!
…
Please respect human rights. I am going back to Brunswick right now. Regards Matt
Ms Di Norcia: I just messaged you on ORO 2 phone telling you to go to Brunswick and click off. We will chat next week.
[As written]
Ms Di Norcia’s evidence was that Mr Salehi became very aggressive, yelled at her and said that she “could not force him to deliver the cake and that her behaviour was illegal”. Ms Di Norcia accepted that she was frustrated and that she hung up on Mr Salehi. Ms Di Norcia sent the text set out above at 6.52 pm telling him to “go to Brunswick and click off. We will chat next week”.
The sharp exchange between Mr Salehi and Ms Di Norcia exposes that both felt under pressure from the heavy burden of work in the run-up to Christmas. Tempers frayed and it is easy to understand the perspective of each of them.
I find that there was no causal nexus between what happened on the evening of 10 December 2022 and the complaint Mr Salehi had made in late October 2022 about the contract term that permitted Brunetti Oro to reduce his base salary. The two events — the October complaint and 10 December 2022 — were not connected. The issue about the cake was not part of a campaign of ill-treatment: it arose only on 10 December 2022.
Part 3.1 of the Act is concerned to offer minimum protections to employees from adverse action because they have exercised workplace rights. Accepting that Mr Salehi felt some pressure in the course of his employment, Brunetti Oro has discharged its onus to prove that it did not “injure” or otherwise take adverse action against Mr Salehi in his employment by imposing pressure because he had made a complaint about a term of his contract or because of his race.
I have dealt with other events which may come within Mr Salehi’s allegation that Brunetti Oro pressured him under different headings. For example, Mr Salehi makes an allegation that Ms Di Norcia made an agreement or arrangement with Mr Romeo to threaten him. I have dealt with this in my discussion of claim 8. Mr Salehi makes allegations that Brunetti Oro provided him with a revised contract to pressure him. I have dealt with this issue in my discussion under claim 6. Noting those matters, I cannot further meaningfully engage with how Mr Salehi alleges that he was the subject of a campaign of ill-treatment because he exercised a workplace right in the absence of the details of the alleged campaign of ill-treatment.
Claim 2 cannot be sustained because there is no causal nexus between the “pressure” and the exercise of any workplace right.
CLAIM 3: DID BRUNETTI ORO “CHANGE THE JOB POSITION TO THE DETRIMENT OF THE EMPLOYEE”?
The content of Mr Salehi’s allegation that Brunetti Oro changed the “job position” to his detriment was unclear.
The Respondent’s understanding of claim 3 was as follows:
(1) Ms Di Norcia stopped the Applicant having coffee or insulted him while he had coffee.
(2) Because this happened, the Respondent has contravened FWA s.340.
On this characterisation of claim 3, it was difficult to differentiate claim 3 from claim 5.
There was a dispute about Mr Salehi using the Brunswick kitchen to make coffee. Mr Salehi believed he should be able to make a cup of coffee. Ms Di Norcia’s position was that he could make coffee but only before his shift or during a break, not on work time. In any event, I accept Ms Di Norcia’s evidence as to what happened as to the coffee. Her evidence was as follows:
63. Just after 10:00am on 17 March 2023, I went into the lunchroom and came across Matt making himself a coffee.
64.I said words to the effect that I do not mind workers making coffee, but they will need to do so either before they start their shift or whilst waiting for the route to be organised, not when they should be on the road already. Matt did not respond.
It is convenient to repeat Mr Salehi’s response albeit that I set the response out above in the context of the discussion about it being inappropriate to make serious allegations in the forum of a group chat. On 17 March 2023 Mr Salehi sent a text message addressed to Ms Di Norcia in the Brunetti Oro driver’s group chat. The Applicant accused Ms Di Norcia of “racist” behaviour. He wrote:
Mr Salehi:Dear Jessica This is the third time you have insulted me while making coffee. Second one yesterday, third one today. First one was 6 months ago. I reported this today to a Member of Parliament in Australia and to the Australian Immigration Service. If it happens again, I will also inform the police and social networks. Please stop your racist behaviour with me. Thanks
[Emphasis added]
Ms Di Norcia’s state of mind was that the issue was not Mr Salehi making coffee but that he was making coffee when he should be working.
To the extent that there is a difference in the evidence of Ms Di Norcia and Mr Salehi as to this issue I prefer the evidence of Ms Di Norcia. Mr Salehi conceded in cross examination that he had not in fact made a report to any member of Parliament or the Australian Immigration Service (T156:L19, T156:L27) despite his assertion that he had done so in his group chat post on 17 March 2024.
In any event, even if Ms Di Norcia had insulted Mr Salehi while he was making a cup of coffee (and I wish to be clear that I find that she did not) there is no causal link between Ms Di Norcia’s actions on 17 March 2023 (or on earlier occasion) and Mr Salehi’s complaint about the contract term made in October 2022. There is no causal link between Mr Salehi’s race or national origin and Ms Di Norcia’s statement that he should be working not making coffee.
Claim 3 cannot be sustained.
CLAIM 4: DID BRUNETTI ORO DISMISS MR SALEHI IN CONTRAVENTION OF S. 351 BECAUSE HE HAD AN IRANIAN BACKGROUND?
I have traversed in detail at claim 1 above that I accept Mr Angele’s evidence that he dismissed Mr Salehi because of performance concerns.
Although there was abundant evidence to link the dismissal with those performance concerns, there was no evidence which causally linked the dismissal with Mr Salehi’s Iranian background or, as he framed it, because he was not Italian.
If a decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361 (Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441; [2014] FCAFC 184, [32]). I accept Mr Angele’s testimony as reliable and that it discharges the burden imposed on Brunetti Oro under s. 361.
I find that Mr Salehi’s Iranian background, or the fact that he was not Italian, was not a substantial or operative reason for the dismissal.
Claim 4 cannot be sustained.
CLAIM 5: DID BRUNETTI ORO PREVENT MR SALEHI FROM USING WELFARE SERVICES?
I have noted that at the outset of the case an attempt was made to clarify the scope of the claim 5. I had this exchange with Mr Salehi (T22:L38–46)
HIS HONOUR: Preventing employees from using welfare services.
MR SALEHI: Sorry, I don’t have item 5. I just have the – item 5. This one. Yes, yes. Yes.
HIS HONOUR: The question that you’re being asked by me and by Brunetti is what does that mean. What are you saying they did?
…
INTERPRETER: Sorry, your Honour, this has nothing to do with welfare services as we know. What Mr Salehi means is that he was prevented from using certain facilities at his workplace. For example, unlike other employees, he was unable to make coffee for himself. So it’s not welfare.
HIS HONOUR: He was unable to make coffee for himself.
MR SALEHI: For example, yes.
[Emphasis added]
This exchange that leads me to say that claim 5 is not relevantly able to be distinguished from claim 5.
For the reasons given as to claim 3, claim 5 cannot be sustained.
CLAIM 6: THAT THERE WAS “SERIOUS MISCONDUCT” AS TO HOW THE BRUNETI ORO DEALT WITH THE COMPLAINT AS TO THE SHORT PAYMENT ON OR ABOUT 19 OCTOBER 2022.
I have ordered my reasons to reproduce the order of the claims as Mr Salehi presented them. Nonetheless, it is important to remember that the facts which underpin claim 6 arose first in time.
I do not accept that Brunetti Oro took any adverse action against Mr Salehi because he made this complaint but it is necessary to trace the chronology in a little detail.
The contract – August 2022
On 30 August 2022 the Applicant signed his written employment contract. His annual salary was $50,000. There was weekend work (cl. 8.4).
Clauses 8.1 and 8.2 about which Mr Salehi made his complaint were as follows:
8. Hours
8.1You will be required to work an average of 38 hours per week plus reasonable overtime, which in this instance is estimated to be an additional 3 hours totalling 41 hours per week.
8.2If your roster permanently changes to Monday-Friday, or you regularly work below 38 hours per week, Brunetti Oro reserves the right to reduce your base salary accordingly.
On 2 September 2022, the Applicant commenced employment.
The complaint as to short-payment and the contract term
On 19 October 2022 Mr Salehi made a complaint that he had been underpaid 7.6 hours: in that week, he had been paid for four days instead of five days.
Also, on 19 October 2022 the Applicant asked Mr Farmonov about his leave balances. Mr Farmonov responded that “you can see your annual leave balance on your last payslip”. Mr Farmonov wrote “your sick leave balance is 9.08 as of today 19/10” .
I have included the essential parts of the text exchange between Mr Salehi and Mr Farmonov below:
Wed, 19 October at 12:42pm
Mr Salehi: Madat I got my payslip right now. I think somethings is wrong from my contract and my payslip
…
Mr Salehi: 2- my contract is full time job that’s why I accept this job. Full time job it’s meaning you are guaranteed my job as 38 hour per week. So when you the company give me less than 38 hour, must you pay 38 hour. So why my salary is less than 38 hour!!!??? Regards Matt
Mr Farmonov: Hi Matt, it is company’s policy that you check your hours every week and let your manager know if you notice anything wrong. If you work between 35-41 hours you will get paid for 38. If less than 35 system pays for what you have worked. I will have a look and let you know again. If there is an error, I will back pay you. Apologies for the inconvenience.
Mr Salehi: In this case, this is against the law of fulltime work My Contract is a full-time job, not a casual job or part-time job. If I want to work as casual another company pay me $34 per hour.
Mr Farmonov: Hi Matt, are you working tomorrow, lets catch up tomorrow to go through this?
…
Mr Salehi: Dear Madat, Please answer this question because I need your answer for the court and government : - I read my contract many time and I am sure and believe my contract is full time job. Mr. Madat, Do you confirm that my contract is a full-time job? Regards
Mr Farmonov: Hi Matt, I prefer to have this conversation face to face. You may bring your support person if you wish! I will print out a copy of your contract where it states that Brunetti Oro reserves the right to reduce your salary if you work less than 38 hours. Please do not contract on my personal number. If you have any questions please email [email protected]
Mr Salehi: Hi Madat, This text in your contract is against full-time employment law in Australia. And it is illegal. No actual person or legal entity has the right to violate the labor law based only on the contract. (Even if it is in the contract.) Whoever put this sentence in the contract should be held accountable. I am suing Brunetti Oro company. This is in response to your last message on my personal phone. The rest of the legal messages will be sent to you via email. Regards Mohammadreza (Matt)
On 26 October 2022 the text exchange between the two men continued
…
Wed, 26 October at 12:46pm
Mr Salehi: Hi Madat Hope you are well. I saw my payslip right now Still my net payment is wrong
109.88+813.54=932.42
923.42-915.42=8
So pay me $9 less. Regards Matt $8
Mr Farmonov: Hi Matt, because of back pay you have been taxed $9 more, the discrepancy will be adjusted at the end of the year when you lodge your tax.
Mr Salehi:But this issue was from company not from me My salary is 813.54 always
…
Wed, 26 Oct at 2:47pm
Mr Salehi: [sends web link to Mr Farmonov to Fair Work Ombudsman] “Deducting pay & overpayments – Fair Work Ombudsman”
Mr Farmonov: No worries, Mat, I will adjust your tax next week so you will be taxed $8 less. This will make up the difference. Is this, ok?
Mr Salehi: Thanks, Madat.
[As written]
On 26 October 2022 the Applicant called the FWO. The FWO provided a reference number as to his call. The FWO provided resources for him to review titled: “Deducting Pay & Overpayments – Fair Work Ombudsman”.
Mr Salehi’s evidence was that it was only because he contacted the FWO that meant that Brunetti Oro was “forced to pay”.
On 2 November 2022 Brunetti Oro back paid the 7.6 hours shortfall. About that time or a short time later it made an adjustment to the PAYG taxation withheld to make-up Mr Salehi’s net pay so he was not out of pocket.
Mr Salehi contended that because he had raised this issue either with Mr Farmonov or with the FWO Mr Farmonov and Ms Di Norcia told Mr Angele about the matter. In his affidavit at [86], the Applicant said:
Mr Yuri Angela angrily says, “I don’t want a legal employee.” Mr Yuri Angela orders Ms Jessica di Norcia and Mr Madat Farmonov to put maximum pressure on the applicant until the applicant resigns”
Mr Salehi continued:
In my seventh week Pay slip (Period 10/10/2022-16/10/2022), I saw that the accountant (‘Madat Farmonov’) deducted 160 dollars from my salary. I protested (20/10/2022). He said because you worked less than 38 hours. I said I will complain Because I have full-time contract. He said it has no effect. I informed the FAIR WORK. They said it is against the law and inform them. I informed ‘Madat Farmonov’ again. He said if you don’t complain again, I will pay you. ‘Madat Farmonov’ said, don’t talk any more to anyone about the your contract, not even FAIR WORK, otherwise we will fire you.
[As written]
If the correct characterisation of Mr Salehi’s adverse action claim is that the adverse action was Mr Farmonov’s twin threats that he would only be paid if he did not complain again and that if he talked to anyone about his contract he would be fired, the claim fails on the facts because I prefer the evidence of Mr Farmonov to that of Mr Salehi and I find that the threats were not made.
To be clear, on the facts, I find that Mr Farmonov did not make the twin threats that are attributed to him: namely, that Mr Salehi would only be paid if he did not complain again and that if he talked to anyone about his contract he would be fired.
I prefer Mr Farmonov’s evidence because the best evidence of what occurred is in the written communications between Mr Farmonov and Mr Salahi at the relevant time. There is no threat. In addition, in cross examination of Mr Salehi, it was apparent that he was prepared to conjecture or surmise. For example, he had not seen or heard Mr Angele say the words or give this “order” to Ms Di Norcia or Mr Farmonov that he did not “want a legal employee” as he set out in [86] of his affidavit. The allegation that Mr Angele said these words was, as Mr Salehi put it, a matter of him “putting all things together”. The allegation that Mr Angele had made an order to put pressure on him because of the complaint was a conjecturing or surmising as to what Mr Salehi believed had occurred, not a matter he had heard Mr Angele say or as to which there was any other evidence.
If Mr Salehi’s allegation of adverse action is correctly characterised as a broader allegation that his complaint about his contract in October 2002 caused Brunetti Oro to embark upon a punitive campaign that endured for the rest of his employment and culminated in his dismissal in March 2022, Brunetti Oro has proved that is not what occurred.
The short payment of $160 was promptly fixed. The ancillary issue of the $8 shortfall in the net payment because of the PAYG remittal to the ATO was also promptly fixed.
There was no swift retaliation because of the complaint. To the contrary, there is a gap of time between the complaint (October 2022) and dismissal (March 2023). In the intervening period, rather than there being any punitive campaign as to the complaint, there are distinct and unrelated performance concerns which arise grounded in objective reality about Mr Salehi’s punctuality, his refusal to follow directions and his intemperate statements in group chats. I do not draw any inference that these reasons were somehow just a smokescreen for the real reason for dismissal being the complaint.
The new contract
Further, Brunetti Oro took steps in the period which intervened between the complaint and the dismissal not to take retribution against Mr Salehi for making the complaint but to address his concerns about the contract term; as counsel for Brunetti Oro put it, to “mollify” him (T465: L27).
On 23 January 2023 Ms Meharry sent an email to Mr Angele (among others) which included the following:
In relation to our earlier conversation re Matt (Delivery Driver) not being rostered for his full 38 hours per week and refusal to undertake any other duties other than driving.
We need to make sure that as a full-time employee Matt is being rostered for his contracted 38 hours per week.
Any averaging of hours would have to be agreed upon by Matt and any reduction of his 38 hours would have to be discussed in consultation with Matt who would have to agree to said reduction.
Yuri – Please note we may need review the cover letter of employee contracts which states ‘If your roster permanently changes to Monday-Friday, or you regularly work below 38 hours per week, Brunetti Oro reserves the right to reduce your base salary accordingly’. This may also have to be amended in the body of the contract.
On 23 January 2023 Ms Meharry sent an email to Mr Salehi as follows:
“I understand that you have not signed your employment contract. Please find attached a copy of your employment contract for review and signature as a matter of importance.
Can you please return the signed copy of your employment contract by Friday, 27 January 2023
Mr Salehi wrote back on 23 January 23 indicating that he had signed the contract and attaching a copy. He noted “fair work also have one copy of this contract as well”.
Ms Meharry’s next email was as follows:
Can you please forward me the email you previously sent to me?
Additionally, is there a reason you have sent a copy of the contract to Fair Work?
I understand you queried with one of my colleagues part of the contract relating to your hours of work being altered, this has now been removed from the contract sent to you today.
The next day, 24 January 2023, Ms Meharry sent an email which included the following:
I appreciate you sending me a copy of your signed contract.
I notice that your start date is incorrect and the spelling of your name on the original contract. I have amended this in the revised contract attached.
I have also reviewed the part of the contract you are concerned with and amended clause 8. Hours. And the cover letter.
I have corrected your start date and weekly hourly commitment information in schedule 1 also.
As to hours, the revised employment contract Ms Meharry sent to Mr Salehi removed any right for Brunetti Oro to reduce base salary if Mr Salehi regularly worked below 38 hours a week. It contained a proposed cl. 8.1 as follows:
8.1. You will be required to work an average of 38 hours per week plus reasonable overtime.
Mr Salehi regarded Ms Meharry’s statement that he had not signed his contract as some kind of knowing trick or deception. Mr Salehi alleged that Brunetti Oro sent him this new contract in order to place pressure on him.
I find that there was no adverse action in the provision of the new contract. There was nothing in the new contract with which he was provided on 16 January 2023 which undercut the Applicant’s rights. To the contrary, Mr Salehi had a concern that the provision in his original contract vested in Brunetti Oro a right unilaterally to withhold pay if he routinely worked less than 35 hours weekly. As Ms Meharry wrote, the proposed varied contract — with its new clause as to hours — addressed the very issue as to which Mr Salehi was concerned. The proposed change was favourable to, not adverse to, Mr Salehi
The amended hours clause in the proposed new contract provided in January 2023 also weighs against a conclusion that Brunetti Oro was engaged in a campaign of retribution because Mr Salehi had made his complaint about the hours contract term in October 2022. An employer minded to punish an employee for making a complaint about a contract is unlikely to remedy the very problem in the contract of which the employee has complained.
No breach of award claim
For completeness as to this issue, I express no view as to whether if Brunetti Oro had unilaterally reduced the base salary of a full-time employee who regularly worked less than 35 hours a week in reliance on clause 8.2 what the legal consequences of such an action might be. No party identified the applicable underlying award. There was no claim of a breach of any award under s. 45 of the Act. On the facts, Brunetti Oro did not purport to reduce Mr Salehi’s base salary in accordance with its reserved right to do so under cl. 8.2 of the contract. It is not necessary to say anything more about it.
CLAIM 7: DID BRUNETTI ORO MAKE A DEDUCTION OF $160 FROM MR SALEHI’S WAGES IN CONTRAVENTION OF S. 323 OF THE ACT;
Claim 7 is that Brunetti Oro made a $160 deduction from Mr Salehi’s salary in contravention of s. 323 of the Act.
Section 323(1)(c) provides that:
an employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full;
(b) ….; and
(c) at least monthly.
Brunetti Oro admitted that there was a shortfall of $160 payment of salary. The evidence was inconclusive as to why this occurred. The shortfall occurred on or about 19 October 2022. It appears to have been fixed by 26 October 2022 or shortly thereafter by reference to Mr Salehi’s text message 26 October 2022 and Mr Farmonov’s oral evidence (T257:L15–28) subject to an issue that Mr Salehi had been “taxed $9 more”, a residual issue which was fixed the next week, about 2 November 2022.
Brunetti Oro did not breach the requirement in s. 323 to pay the employee in full “at least monthly” in circumstances in which it remedied the $160 shortfall within a fortnight. As a result, the facts of this case distinguish it from the facts in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 at [119] where Jessup J found that where there was a failure to pay a monthly commission there was a “contravention of the section at the end of every month during which a commission entitlement arose” (emphasis added). In contrast, in this case, the shortfall was fixed within the month which avoided a contravention of s. 323 arising.
Mr Salehi has not proved — and as to this claim he bears the onus — any contravention of s. 323.
Claim 7 cannot be sustained.
CLAIM 8: DID BRUNETTI ORO ORGANISE FOR MR ROMEO (A FELLOW EMPLOYEE) TO MAKE A DEATH THREAT AGAINST MR SALEHI TO PUNISH HIM FOR COMPLAINING ABOUT THE SALARY CLAUSE IN HIS CONTRACT?
I have set out above (claim 2) that on 10 December 2022 there was a sharp exchange by phone call and by text message between Mr Salehi and Ms Di Norcia about the delivery of a cake to Frankston which I ascribed to the fact that they were both under work pressure. On 12 December 2022 Ms Di Norcia convened a meeting about Mr Salehi’s performance which I detailed in my discussion of claim 1 above.
On 13 December 2022 there was an incident between Mr Salehi and Mr Romeo, another delivery driver Brunetti Oro employed. It is apparent that what had occurred between Mr Salehi and Ms Di Norcia on 10 December 2022 was a catalyst for the subsequent incident between Mr Salehi and Mr Romeo on 13 December 2022.
Mr Romeo did not give evidence before me, nor did an eyewitness to the incident, Ms Gerada, another colleague of both men. Ms Stola took witness statements at the time as part of Brunetti Oro’s investigation of the incident and the written witness statements of each of Mr Romeo, Ms Gerada and Ms Di Norcia were in evidence before me.
Mr Salehi makes the serious allegation that his supervisor, Ms Di Norcia arranged for Mr Romeo to threaten him. At the time in a note of Ms Stola Mr Salehi is recorded as having said:
I’m sure he had an agreement with Jessica, they want to kill me.
Mr Salehi’s evidence at [28] of his affidavit was as follows:
28. On Tuesday (13/12/2022), while I was getting ready to start work, suddenly a person named ‘Mario’ (a truck driver – Jessica’s friends – with the same background), came to me and loudly and professionally Ugly, he loudly threatened me with death and said you had no right to message Jessica and criticize her, because she is your manager. You must do whatever she says or I will kill you. I was deeply shocked. I have never spoken to him before. Except hello and goodbye. While my hands were shaking, I gently led him out of the hall. But he still insulted loudly and said ugly words and threatened. When he said you shouldn’t have texted Jessica, I realized that Jessica wanted this violent person to hurt me or scare me
Ms Di Norcia was adamant in her denial of the allegation. She deposed as follows:
Matt alleges I told Mario [Romeo] to harm him. Absolutely not. … he says I coordinated with Yuri. Absolutely not.
Ms Di Norcia said that she had shown to Mr Romeo the text exchange she had had with Mr Salehi on 10 December 2022. She asked Mr Romeo whether — with reference to the text exchange on 10 December 2022 — she was doing anything wrong.
Ms Gerada said of the incident she saw on 13 December 2022 between Mr Romeo and Mr Salehi:
Mario came in in the packing area and started yelling at Matt. Mario was very upset
“don’t send messages! Fxxx Human rights! She is your boss! If you don’t like working here, you go!”
Mario was very full on
Matt was shocked and tried to walk out. Mario followed him.
Mr Romeo’s written statement at the time was as follows:
Matt has been very disrespectful to Jessica
I lost it
In my opinion he doesn’t like to be told what to do by a woman or a younger person.
I went up to him straight to tell him he doesn’t work as a team player, we are a team, we listen to our boss and we do what we have to do.
I told him “you have to do what Jess says” “if you don’t do what you have to do, or I hear another story for Jess or Sanjar you will have to deal with me”
He is not working properly, he has no respect for Jess. We have to make up for what he doesn’t like to do. When a delivery is difficult he drops it, he marks the delivery as failed.
I was screaming at him because I lost it.
I know I’ve done it wrong, I can apologies for the way but he has to respect Jess, Sanjar and all the other girls.
[As written]
In an email from Mr Romeo to Ms Stola dated 14 December 2022 he wrote:
He then said I wanted to kill him and I replied there his words.
[As written]
Ms Stola initiated a discussion with Ms Di Norcia in which she told her that the discussions about Mr Salehi’s employment ought to have been kept confidential between her and him. She told Ms Di Norcia that it was inappropriate for her to have shown the text messages of 10 December 2022 to Mr Romeo. Ms Stola made a file note of her meeting with Ms Di Norcia on 15 December 2022:
Jessica [Di Norcia] has been informed that statements have been collected from all relevant people: herself, Mario, Matt. 2 more staff have released a statement of witness
What raised from all those statement is that there has been a spread of rumours in regards of Matt performance, exchange of messages and private conversations have been shared with third parties.
She has been reminded that as a Supervisor she has to maintain a fair communication within the team, avoiding rumours and gossiping, no personal or private information in regards of performance have to be shared with other employees on messages or verbally or in any other way.
If Mario wasn’t made aware of personal communication and messages between herself and Matt he would have not had such a reaction.
Jessica understood the consequences of her actions.
She highlighted her struggle in dealing with certain situations, and some lack of training and mentoring. She is very passionate about her work and feels would like have some guidance in challenging situations.
She expresses the will to undertake a training course on how to deal with staff.
On 16 December 2022 Brunetti Oro organised for Mr Romeo to apologise in Mr Angele’s presence. Ms Di Norcia was present. I accept Ms Di Norcia’s account of what occurred:
Yuri Angele, Director of Brunetti Oro, Lucia, Mario, Matt and I were in attendance. Mario apologised to Matt for his behaviour and Matt again assured all parties that he had already forgotten about the incident. Mario and Matt shook hands and both parties went about their days.
Brunetti Oro made no concession that if a manager had arranged for an employee to threaten another employee these events came within the definition of “adverse action” in s. 342 of the Act. It is not necessary to decide that issue because I find that Ms Di Norcia did not make any arrangement for Mr Romeo to threaten Mr Salehi. I accept her denial. I find that on the balance of probabilities all she did was show the text messages of 10 December 2022 to Mr Romeo, who was upset as to how Mr Salehi was dealing with Ms Di Norcia. I find that Mr Romeo acted of his own volition on 13 December 2022.
The factual issue I must decide under Part 3.1 of the Act is whether a manager of the Respondent (Ms Di Norcia) arranged or agreed for another employee (Mr Romeo) to threaten a colleague (Mr Salehi). I find that no such arrangement or agreement was made. It is not necessary to decide whether a threat to kill was made and I make no determination one way or another as to that issue.
In terms of Brunetti Oro’s reaction, the company took the matter seriously and acted responsibly. Ms Stola initiated an immediate investigation. Witness statements were taken. An apology was required of Mr Romeo in the CEO’s presence. The company counselled Ms Di Norcia about her actions. Each of these actions is inconsistent with any proposition that Brunetti Oro was engaged in a punitive campaign against Mr Salehi because of his earlier complaint.
Ms Meharry, then on leave, when she was appraised of events, wrote an email dated 18 December 2022 which captured how seriously she regarded the matter:
This is a serious complaint and any threats of violence cannot be tolerated in the workplace.
What was established in the initial meeting with the complainant?
While the matter is being investigated and given Jessica’s alleged involvement can Salah report directly to Madat not Jessica and can we limit or avoid the parties working together- can rosters be reviewed.
Please ensure cctv footage is reviewed and saved.
Have interviews with Jessica, Mario and witnesses been scheduled?
Were minutes taken in the first meeting with the complainant?
Please ensure all communications are documented.
Has the matter been reported to the police?
Acts of violence and offensive behaviour such as aggressive or intimidating conduct, physical bullying and harassment or threats of violence are generally considered gross misconduct.
Claim 8 cannot be sustained.
CLAIM 9: DID MS DI NORCIA ENGAGE IN “RACIST BEHAVIOUR” BY TELLING MR SALEHI THAT HE HAD NO RIGHT TO TALK ABOUT GOD AT WORK AND THEREBY CONTRAVENE S. 351 OF THE ACT?
Mr Salehi’s evidence was as follows:
He asked Ms Jessica Di Norcia: you said before that you believe in God” if you believe, why did you ask Mr Mario to hurt me? Ms Jessica Di Norcia answers aggressively: you have no right to talk about God and religion with me and others in Australia. This is illegal.
Ms Di Norcia denied this allegation. Her evidence was:
Matt says that I told him it was illegal to talk about God and religion in Australia. I did not say that. I told him that God had nothing to do with workplace issues.
I prefer Ms Di Norcia’s account because I had some concerns about aspects of Mr Salehi’s evidence.
I have detailed above that I had a concern that Mr Salehi was ready to include in his affidavit matters of conjecture or surmise. The first example set out above was that Mr Salehi attributed words to Mr Angele that “I don’t want a legal employee” after he made his complaint about the salary term of his contract. In cross examination, Mr Salehi conceded he had not heard these words.
There were other examples in his affidavit where Mr Salehi’s evidence was conjecture rather than a matter on which he could give first-hand evidence. Mr Salehi conjectured that there was a conversation between Mr Angele and Ms Meharry about the preparation of a new contract in which there was the following exchange (at [87]):
Ms Yuri Angele tells Ms Judith [Meharry] to prepare a new contract and send it to the applicant to sign and then fire him. Mrs Judith Meharry says what should I do if the applicant does not accept? Mr Yuri Angele says to trick him and tell him that I don’t have your signed contract. Mrs Judith Meharry does not succeed in this trick, because the applicant sensor a copy of the signed contract
Mr Salehi did not witness this conversation but conjectured or surmised the conversation must have happened. I find that no conversation of this kind occurred.
Mr Salehi admitted that he had said in his group chat post on 17 March 2023 that he had made a report about Ms Di Norcia to members of Parliament. He conceded in his evidence that was only his intention and, in fact, he had made no report.
These issues lead me to prefer the evidence of Ms Di Norcia over Mr Salehi when there is a conflict between them. There was a conflict in the evidence between them as to whether Ms Di Norcia directed Mr Salehi not to talk about God. I prefer Ms Di Norcia’s evidence that she said that God had nothing to do with workplace issues.
I find that there was no discrimination by Brunetti Oro against Mr Salehi because of Ms Di Norcia’s remarks and because of his religion under s. 351.
Claim 9 cannot be sustained.
CLAIM 10: DID BRUNETTI ORO ENGAGE IN “COERCION” IN CONTRAVENTION OF S.343 AND 348 OF THE ACT BY TELLING EMPLOYEES NOT TO BE NICE TO MR SALEHI, TELLING EMPLOYEES FALSE INFORMATION ABOUT HIM AND GIVING HIM A NEW CONTRACT WITH HIGHER HOURS?
Section 348 of the Act concerns industrial activity and Mr Salehi’s claim as to it is misconceived.
Under s. 343 of the Act, a person must not organise or take any action against another person with intent to coerce the other person to exercise or not to exercise a workplace right. In National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441 (at [115]), Weinberg J said that it demands a high degree of compulsion negating choice (at [103]), generally embodied by the threat to take away something possessed or an advantage that would otherwise be obtained (at [104]).
It appears to me that Mr Salehi’s coercion allegation under s. 343 was also misconceived.
Mr Salehi’s allegation was as follows (at [30]):
Jessica [Di Norcia] tried to give false information about me to other employees. And encouraged them not to talk to me and not be kind. But she didn’t succeed in this trick and deception as well, and very soon the employees realise that I am a good, kind and polite person. And Jessica lied. This matter became clear to me from the behaviour of the employees
It remains unclear what “false information” Mr Salehi alleges Ms Di Norcia gave to other employees. As a result, it is difficult to engage meaningfully with claim 10.
To the extent that Mr Salehi alleges that Brunetti Oro gave him the proposed contract in January 2023 to coerce him, I do not accept that claim. As discussed above, the proposed varied contract aimed squarely to address Mr Salehi’s concern about the hours clause (cl. 8.2) in the existing contract. The proposed changes under the new contract were favourable to him and did not take away any advantage he otherwise possessed. The new changes protected him against any deduction from his base salary if he worked regularly less than 35 hours weekly.
Claim 10 is not able to be sustained factually or legally.
CLAIM 11: DID BRUNETTI ORO ENGAGE IN A MISREPRESENTATION CONTRARY TO S. 345 OF THE ACT BY WRONGLY CHANGING THE APPLICANT’S HOURS OR BY MS DI NORCIA MAKING FALSE STATEMENTS TO MS MEHARRY?
Section 345 of the Act provides that person must not knowingly or recklessly false or misleading representation about the workplace rights of another person.
Mr Salehi’s allegation was as follows (T27:L34–41):
THE INTERPRETER: This includes or covers a large number of claims or allegations. This is especially about mistreatment – mistreatments of me by Ms Di Norcia and the company. The times that I clocked in and out was all under Mr – it was under Mr Farmonov’s control, and they change those times. As I have also put it into my evidence, one working day that I worked, they have struck it out as an off day. First they denied it. Once they noticed my evidence, they confirmed it. This confirms that, in terms of the accuracy of the hours that I worked there, that accuracy was denied from me and hours were changed.
[Emphasis added]
Brunetti Oro understood the allegation in the following terms:
(1)Ms Di Norcia changed the applicant’s clock in/out times;
(2)She did this to punish him for making his complaint about the contract; and
(3)Therefore, the Respondent contravened FW s. 345
Mr Salehi gave evidence that:
the pressure was so high that Jessica [Di Norcia] change my check-in and checkout time through the computer. Everything was in his [sic] hands. One day I realised that she is registered a day off for me but I was worked at this day.
Ms Di Norcia’s evidence was that:
By mistake I registered a day of annual leave on the wrong day, a day which he actually worked. This was corrected by Madat.
I accept Ms Di Norcia’s evidence that she made an error. I do not accept that she “knowingly or recklessly made a false or misleading representation” in contravention of s. 345 that ought to be attributed to Brunetti Oro. Mr Salehi himself acknowledges that the error was fixed.
Claim 11 cannot be sustained.
CLAIM 12: DID BRUNETTI ORO CONTRAVENE S. 344 OF THE ACT BY EXERTING UNDUE INFLUENCE OR PRESSURE ON MR SALEHI TO WORK LONG HOURS AND/OR PRESSURING HIM TO COME TO THE DISMISSAL MEETING FIRST SCHEDULED ON 20 MARCH 2023 AND RESCHEDULED TO 22 MARCH 2023 WITHOUT ENOUGH TIME TO PREPARE?
Section 344 prohibits an employer exerting undue influence or undue pressure as to five prescribed subject matters set out in s. 344(a)–(e). Issues as to Mr Salehi working long hours or attending a disciplinary meeting on short notice are matters outside the scope of the five prescribed subject matters in respect of which undue influence or undue pressure is prohibited by s. 344(a)–(e). Because the subject matter of his allegations falls outside the scope of the prohibition s. 344(a)–(e), there is no merit in Mr Salehi’s s. 344 claims.
If I am wrong about that, Mr Salehi contends that Brunetti Oro subjected him to undue influence or undue pressure to work long hours. There was no evidence that Mr Salehi regularly or routinely worked long hours. The one exception was on 10 December 2022 where Brunetti Oro asked Mr Salehi to deliver a cake to Frankston after hours. I have dealt with the sharp exchange between Ms Di Norcia and Mr Salehi above (claim 2) and do not intend to return to the matter here. In any event, after the exchange, Ms Di Norcia directed Mr Salehi to return to Brunswick and clock off. In my assessment, what occurred in the isolated incident on 10 December 2022 did not constitute “undue” pressure.
I repeat that issues as to the scheduling of the disciplinary meeting are also outside the scope of s. 344(a)–(e). If I am wrong about that, in my assessment, Brunetti Oro provided did not exert undue pressure as to the notice it provided of the disciplinary meeting.
On 17 March 2023 Brunetti Oro sent Mr Salehi a letter entitled “Workplace Serious Misconduct & Underperformance”, inviting him to attend a formal meeting on 21 March 2023 to “put forward [his] version of events/circumstances”.
On 20 March 2023, Mr Salehi advised that he had not seen the email of 17 March 2023. Brunetti agreed to postpone the meeting and reschedule the meeting for 22 March 2023.
Although the matter does not strictly arise because of the ambit of s. 344(a)–(e), five days’ notice of a disciplinary meeting was not “illegitimate” or “inappropriate or unsuitable” adopting language Jessup J deployed in John Holland Pty Ltd v Australian Manufacturing Workers’ Union (2009) 174 FCR 526; [2009] FCA 235, [58]. His Honour said that undue pressure has a “qualitative connotation” (John Holland, [58]). Suffice to say that 5 days’ notice of a disciplinary meeting and Brunetti Oro’s agreement to postpone the meeting did not have the quality of “undue” pressure.
Claim 12 cannot be sustained.
CONCLUSION
Subject to reserving the parties’ positions as to costs, I will dismiss the application.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 23 January 2025
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