Naskovski v Hisense Australia Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943

File number: MLG 1272 of 2022
Judgment of: JUDGE SYMONS
Date of judgment: 8 July 2025
Catchwords:

 INDUSTRIAL LAW – Fair Work – general protections – where applicant alleges that adverse action was taken by respondent in response to his exercise of workplace rights – where respondent’s case is that the applicant was dismissed due to serious misconduct relating to a leak of confidential information and failure to participate in meetings and a medical examination – where respondent led evidence from person held out as sole decision maker – where evidence of decision maker unreliable – where process adopted by respondent procedurally and substantively flawed – where respondent failed to produce documents related to the investigation of the alleged leak of confidential information – finding that respondent failed to discharge reverse onus under s 361(1) of the Fair Work Act 2009 (Cth) – contravention of s 340(1) of the Fair Work Act established 

INDUSTRIAL LAW – Fair Work – applicant disputes classification under the relevant awards – where applicant alleges that his incorrect classification resulted in underpayments throughout his employment – consideration of the Clerks - Private Sector Awards 2010 and 2020 – finding that applicant was incorrectly classified during period of permanent employment and thus underpaid       
Legislation:

Fair Work Act 2009 (Cth), ss 88, 340, 341, 342, 360, 361, 539, 725, 733, 739

Fair Work Regulations 2009 (Cth), rr 3.32, 3.33, 3.34, 3.42

Clerks - Private Sector Award 2010

Clerks - Private Sector Award 2020  
Cases cited:

 Alam v National Australia Bank Limited (2021) 288 FCR 629; [2021] FCAFC 178

Australian Meat Industry Employees Union v Dick StonePty Ltd [2022] FCA 512

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd 238 FCR 273; [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199

Eckel v Ballarat Community Health Ltd [2022] FedCFamC2G 890

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Michael v Network Ten Pty Limited [2023] FCA 1091

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia 195 CLR 1; [1998] HCA 30

Serpanos v Commonweath of Australia [2022] FCA 1226

Wong v National Australia Bank Limited 318 IR 148; [2022] FCAFC 155

Division: Division 2 General Federal Law
Number of paragraphs: 271
Date of last submissions: 30 January 2024
Date of hearing: 29 January 2024 - 30 January 2024
Place: Melbourne
Counsel for the Applicant: Mr G Lake
Solicitor for the Applicant: Jewell Hancock Employment Lawyers
Counsel for the Respondent: Mr P Lettau
Solicitor for the Respondent: MST Lawyers

ORDERS

MLG 1272 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FILIP NASKOVSKI
Applicant
AND:

HISENSE AUSTRALIA PTY LTD
Respondent

ORDER MADE…

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Details
Case
[2025] FedCFamC2G 943
Decision Date

CaseChat Overview and Summary

The case of Naskovski v Hisense Australia Pty Ltd was heard by the Fair Work Commission and involved allegations of unfair dismissal and underpayment of wages by the respondent, Hisense Australia, against the applicant, Mr Naskovski. Mr Naskovski claimed that Hisense had taken adverse action against him in response to his exercise of workplace rights, including making inquiries and complaints. Hisense argued that Mr Naskovski was dismissed due to serious misconduct, specifically the leaking of confidential information and refusal to participate in meetings and a medical examination. Additionally, Mr Naskovski disputed his classification under the relevant awards, alleging that his incorrect classification resulted in underpayments throughout his employment.

The legal issues before the court were whether Hisense had dismissed Mr Naskovski because he exercised his workplace rights, as prohibited by s 340 of the Fair Work Act 2009 (Cth), and whether Mr Naskovski was underpaid due to incorrect classification under the Clerks - Private Sector Awards 2010 and 2020. The court had to assess the credibility of the evidence provided by both parties, particularly focusing on the reliability of the decision maker’s evidence and the procedural fairness of Hisense’s investigation and dismissal process.

The court found that the evidence provided by Ms Ran Sun, the Human Resources and Admin Manager who was held out as the sole decision maker, was unreliable. The court also determined that the process adopted by Hisense was procedurally and substantively flawed, as they failed to produce documents related to the investigation of the alleged leak of confidential information. Consequently, the court found that Hisense had failed to discharge the reverse onus under s 361(1) of the Fair Work Act, establishing a contravention of s 340(1) of the Act. Furthermore, the court found that Mr Naskovski was incorrectly classified during his period of permanent employment, resulting in underpayments.

In conclusion, the court found in favour of Mr Naskovski on both counts. It established that Hisense breached s 340 of the Fair Work Act and that Mr Naskovski was underpaid due to incorrect classification. As a result, Mr Naskovski was awarded compensation for the contravention of his general protections under the Fair Work Act and for the underpayments he suffered due to misclassification.

Orders

Orders of the court

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Background

Background to the litigation

Having heard and considered all the evidence and the parties’ submissions, I have concluded that Mr Naskovski has established a case for relief reflecting a breach by Hisense of s 340 of the FW Act as well as breaches of the Award relating to underpayments and misclassification.BACKGROUND Hisense is a consumer electronics and home appliance brand which was established in 2006. It is an Australian-based subsidiary of Hisense Company Ltd which is headquartered in Qingdao, China. On 21 September 2015, Mr Naskovski commenced employment with Hisense on a casual basis in the position of Warranty Claim Specialist. Mr Naskovski’s position title was altered on occasion, including to Customer Service Inbound Operator. On 15 May 2017, Mr Naskovski converted to permanent full-time employment with Hisense in the position of Customer Service Team Coach. Mr Naskovski was dismissed from employment with Hisense on 27 January 2022. In each of these roles, Mr Naskovski worked in a call centre environment and had responsibility for the management of a team of call centre workers. The level of responsibility is a matter about which the parties disagree and is relevant to the classification dispute. Mr Naskovski’s adverse action claim is based principally on the making of a series of employment inquiries and complaints. By the time the matter came before me, I did not understand Hisense to dispute that any of the communications relied upon by Mr Naskovski had occurred or that they possessed the character of workplace rights so as to satisfy one or more of the provisions of s 341(1) of the FW Act. The battles lines were instead drawn around the question of whether Hisense dismissed Mr Naskovski because he exercised any of these workplace rights.IDENTIFICATION OF KEY PERSONNEL Before turning to the chronology, it is helpful to briefly identify the personnel whose names recur throughout the events described in this proceeding.·Mr Colin Lethbridge was employed in the role of Customer Service Team Coach, alongside Mr Naskovski.·Ms Aphrodite Myron was employed in the role of Call Centre Manager. Before her employment came to an end for serious misconduct in around February 2021, she was Mr Naskovski’s direct supervisor.·Mr Michael Glover was employed in the role of Call Centre Manager in April 2021 and following Ms Myron’s departure from Hisense. ·Mr Gary Virk was employed in the role of Customer Service Team Leader. He was appointed acting Call Centre Manager immediately after the dismissal of Ms Myron and before the appointment of Mr Glover to that role.·Ms Ran Sun was employed in the role of Human Resources and Admin Manager from 14 April 2020.·Ms Jessie Tang was employed in the role of Human Resources and Admin Officer.·Mr Finn Zhang was at relevant times, the Managing Director of Hisense Australia and New Zealand.CHRONOLOGY OF EVENTS Generally, there was consensus that the following events took place. Where there was not, I have indicated how I have resolved any controversy.Inquiries around and processing of back payment

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is clear from the above recitation of principles that an inquiry into the actual reason or reasons given by the employer for the taking of adverse action is not confined to the reasons themselves but comprehends all the circumstances established in the proceeding.Identification of the decision maker and exposure of the reasons for decision Section 341(1) of the FW Act requires a causal link between the adverse action and the exercise or possession of the workplace right. A threshold matter therefore is identification of the decision maker (or makers), recognising that where the respondent is a body corporate, the decision-making process will be carried out by its human officers, and it is the reasons for decision of those individuals that will usually be offered up for scrutiny. Given Ms Sun’s central role in most of the communications and events recorded above and Hisense’s insistence that it was Ms Sun who acted alone to make the termination decision, the focus must naturally begin with the evidence that is capable of shedding light on the matters that informed Ms Sun’s decision-making process. In this category is the termination email sent to the applicant on 27 January 2022, which has been reproduced in full at [91] above. It also includes Ms Sun’s affidavit evidence on the topic which was primarily contained in the first Sun affidavit where Ms Sun gave the following account of “The Dismissal”.[70] [70] First Sun affidavit, [55]-[69]. 55.On 13 October 2021, ChannelNews published an online article about Hisense. This article made references to Hisense internal confidential emails.56.I suspected that one or more of the internal emails were leaked to ChannelNews by a Hisense employee, so I instructed our I.T. Team to investigate whether these emails were sent outside of Hisense. 57.After I was informed by Mr Glover that the applicant would not be coming into work on 14 October 2021 due to sick leave, I accessed the applicant’s work email account to check whether he had any outstanding work matters to deal with. This is when I found emails that the applicant had sent to his personal email address.58.The applicant became my prime and only suspect as the person who had leaked Hisense’s internal email to ChannelNews, so I then instructed our I.T. Team to revoke the applicant’s access to his work emails, and this took effect on 14 October 2022 evening.59.On 18 October 2021, I emailed the applicant to invite him to attend a disciplinary meeting on 19 October 2021, and laid out the allegation of serious misconduct against him.60.I also sent the applicant two text messages on 18 October 2021.…63.On 18 October 2021 at 3.15 pm, the applicant responded to the 10.04 am email denying any involvement in wrongdoing and requesting that the meeting be rescheduled to be a face to face meeting in the office upon his return to work.64.On 18 October 2021 at 5.24 pm I emailed the applicant. In this email I provided the applicant with detailed allegations, including that:a.He had emailed a copy of the 12 October 2021 Global Hisense internal news update to his personal email address. b.The news article published by 13 October 2021 quoted the exact same words from the Global Hisense internal news update.65.On 19 October 2021, I received an email from the applicant in reply to my 18 October 2021 5.24 pm email. In this email the applicant denied that he had access to the Global Hisense internal news update.66.…what the applicant wrote in his email to me on 19 October 2021 was not true. The applicant, as a Hisense employee, had a login and password to access the full newsletter behind the link on the 12 October 2021 email.67.Notably for me, even as at the time of writing this affidavit, the applicant still has not deposed in any affidavit that he did not leak the internal document to ChannelNews.68.Between 20 October 2021 and 27 January 2022, I communicated with the applicant by email.69.On 27 January 2021, I made the decision to terminate the applicant. My reasons were:a.Based on IT information, I suspected that the applicant had disclosed confidential and sensitive information to the public.b.The applicant refused to participate in an interview with me about this issue, claiming on medical grounds not to be able to attend. At the time, I believed he was able to attend an interview with me, particularly when we offered to hold the meeting through video conference.c.When we directed the applicant to attend a duty medical assessment, he refused to do so and this was, at the time in my view, a refusal of a lawful and reasonable direction.d.I formed the opinion that the applicant probably was the person who leaked the sensitive information. I knew then, and accept now that I did not have perfect information available to me and that I did not have the “smoking gun” to prove it was the applicant who leaked the information. However, the suspicion he was under was significant, and he was proactively avoiding taking any steps to resolve that suspicion.e.The leak of the sensitive information was a serious issue for the company. It published to the world a serious internal matter which compromised our reputation. It was equally untenable to keep employed a person who was suspected of harming the company in that way, and who was not taking steps to clear his name.

Ratio Decidendi

Legal Principle Established

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