Naskovski v Hisense Australia Pty Ltd - [2025] FedCFamC2G 943

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 BY:

JUDGE SYMONS

DATE OF ORDER:

8 JULY 2025

THE COURT ORDERS THAT:
1.The parties confer with a view to agreeing upon the form of orders to be made by the Court to give effect to the reasons published today, including a timetable for the provision of submissions and any further evidence on relief and penalty, and in the event of agreement, submit the orders to the Court, by 5 August 2025, in which case they will be made in the parties’ absence.
2.In the absence of agreement on the form of the appropriate orders by 5 August 2025:
(a)the applicant file and serve by 4.00 pm on 5 August 2025 the form of orders he proposes to give effect to the Court’s judgment today;
(b)the respondent file and serve by 4.00 pm on 5 August 2025 the form of orders it proposes to give effect to the Court’s judgment today.

3.The matter be adjourned until 15 August 2025 at 9.30 am for consideration of the orders to be made (if there is no agreement) and the subsequent timetabling of the remainder of the matter (if that remains in dispute).

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 SYMONS:
INTRODUCTION

In this proceeding the applicant, Mr Filip Naskovski, alleges that the respondent, Hisense Australia Pty Ltd (Hisense), contravened s 340 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him because or for reasons which included that he exercised one or more workplace rights.
The substance of the claim is that unfounded allegations were made against Mr Naskovski, and he was later dismissed from his employment with Hisense because he made complaints and inquiries about his employment and exercised his right to take personal leave.
Mr Naskovski also alleges that he was underpaid during his employment with Hisense, reflecting a failure of Hisense to properly account for the hours that he worked and a failure to pay him in accordance with his correct classification under the Clerks – Private Sector Award 2020 and the Clerks – Private Sector Award 2010 (Award).
Mr Naskovski seeks compensation for economic and non-economic loss suffered by reason of the dismissal and compensation for the alleged breaches of the Award. He seeks the imposition of pecuniary penalties. It was agreed and the subject of orders made on 6 October 2023 by consent, that the matter be bifurcated, so that questions of liability be dealt with and resolved before any further hearing (if required) on quantum of underpayment, compensation and/or penalty.
The trial of this matter was heard on 29 and 30 January 2024. Mr Lake of counsel appeared for Mr Naskovski and Mr Lettau of counsel represented Hisense.
At trial, Mr Naskovski read and relied upon the following three affidavits:
·Affidavit of Filip Naskovski affirmed 24 March 2023 (first Naskovski affidavit).[1]
·Affidavit of Filip Naskovski affirmed 4 August 2023 (second Naskovski affidavit).[2]
·Affidavit of Filip Naskovski affirmed 8 December 2023 (third Naskovski affidavit).[3]
[1] Exhibit A1.
[2] Exhibit A2.
[3] Exhibit A3.
Mr Naskovski also read and relied on the affidavit of Louise Emmitt affirmed 3 August 2023.[4]
[4] Exhibit A4.
Ms Ran Sun was the only witness for Hisense. Prior to the hearing she filed affidavits affirmed 1 June 2023 (first Sun affidavit)[5] and 9 November 2023 (second Sun affidavit).[6]
[5] Exhibit R1.
[6] Exhibit R2.
All witnesses were cross-examined.
Prior to the hearing both parties filed a set of written submissions.[7] At the close of evidence, I heard oral submissions from both parties.
[7]Applicant’s Outline of Submissions filed 13 December 2023 (Applicant’s outline of submissions); Respondent’s Outline of Submissions filed 17 January 2024 (Respondent’s outline of submissions).
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
In around January 2019, Mr Naskovski made a verbal inquiry to Ms Myron for Hisense to rectify underpayments under the Award that related to casual loading and afternoon shift allowance. Mr Naskovski identified this as the First Employment Inquiry.[8]
[8] First Naskovski affidavit, [14].
On 14 April 2020, Ms Sun commenced employment with Hisense in the role of Human Resources and Admin Manager.
On 27 April 2020, Mr Naskovski received an email from Ms Myron, which, among other things, stated that Mr Naskovski would receive a gross “salary adjustment” of $12,407.69 (back payment).[9] The back payment retrospectively adjusted Mr Naskovski’s rate of pay over the periods 21 September 2015 to 29 June 2016 and 30 June 2016 to 14 May 2017.
[9] Annexure FN-9 to the first Naskovski affidavit; CB 218-222.
On 28 April 2020, Mr Naskovski emailed Ms Myron to request access to the supporting documentation relied upon by Hisense when calculating the back payment. [10] Mr Naskovski identified this as the Second Employment Inquiry.
[10] Annexure FN-10 to the first Naskovski affidavit; CB 224.
On 29 April 2020, Mr Naskovski sent an email to Ms Myron, Nannette Wang (the predecessor to Ms Sun in the role of Human Resources Manager) and QianQian in the Finance Department. The email included a request that the back payment not be processed until Mr Naskovski had an opportunity to review Hisense’s calculations.[11]
[11] Annexure FN-11 to the first Naskovski affidavit; CB 226.
On 30 April 2020, Hisense made payment to Mr Naskovski of a “salary adjustment” in the amount of $12,407.69.[12]
[12] First Naskovski affidavit, [21].
On 1 May 2020, Mr Naskovski received an email from Ms Sun which stated that the back payment had been processed.[13] In cross-examination, Ms Sun agreed that during her first month of employment with Hisense she had been required to arrange for the payment to Mr Naskovski of the back payment and that the making of a payment of this kind was “unusual”. She disclaimed any knowledge of the circumstances in which this first back payment had been discovered.
[13] Annexure FN-12 to the first Naskovski affidavit; CB 228.
Discussions around and offer of employment in role of Team Leader
While Hisense did not admit that the following discussion took place, I accept that it did based on the consistent account of Mr Naskovski and the failure of Hisense to undermine it during cross-examination or to offer an alternative version of events. The account is also consistent with the records of Skype conversations produced by Mr Naskovski.
In December 2020, Mr Naskovski had several conversations with Ms Myron, at which time Ms Myron informed Mr Naskovski that his team at Hisense would be undergoing a restructure, and offered him the role of Team Leader, to come into effect in February 2021.[14]
[14] First Naskovski affidavit, [25].
On 7 January 2021, Mr Naskovski exchanged Skype messages with Ms Myron in which, among other things, Ms Myron confirmed that Mr Naskovski would receive a base salary of $57,000 in the position of Team Leader plus a yearly bonus of $3,000.[15]
[15] First Naskovski affidavit, [25]; Annexure FN-15 to the first Naskovski affidavit; CB 238-239.
On 2 February 2021, Ms Sun sent an email to all staff of Hisense which relevantly stated (Myron dismissal email):[16]
Dear All,
Please be advised that the personnel changes below have been decided by the executive management team, being effective immediately.
Aphrodite Myron, the Customer Service Manager, has been dismissed because of serious misconduct. We have zero-tolerance for any fraud and ignorance of the company’s policies.
…
[16] Annexure FN-36 to the first Naskovski affidavit; CB 414-415.
In June 2021, Mr Naskovski received an email from Mr Glover, who by then was performing the role of Call Centre Manager, which announced that the Team Leader position would be open for anyone to apply for. The email attached a copy of the Team Leader role responsibilities.[17]
[17] Annexure FN-19 to the first Naskovski affidavit; CB 249-250.
On around 14 July 2021, Mr Naskovski had a conversation with Mr Glover during which, among other things, he:
(a)asked Mr Glover for Hisense to rectify underpayments under the Award with respect to casual loading and afternoon shift allowance;
(b)complained that the position of Team Leader was open for anyone to apply for, despite it being offered to and accepted by him in December 2020.
Mr Naskovski described Mr Glover as being dismissive, telling him that he could not assist Mr Naskovski.
On 15 July 2021, Mr Naskovski sent an email to Mr Glover which included the following:[18]
[18] Annexure FN-21 to the first Naskovski affidavit; CB 367.
Hi Michael,
As discussed earlier in the week, throughout my time working at Hisense I have performed the vast majority of the duties outlines in the ‘TL role responsibilities’ document you provided.
…
The fact that I had already been doing these tasks is the reason why I was already offered the TL role by the previous customer service manager, to formally have the title and pay for the work I was doing. This progressed to the point where the role was accepted, pay was negotiated, and approved by Finn. Ran should be aware of this, as we have spoken about it very briefly, only for this to just never be spoken of again.
Hopefully you are able to understand how I feel after having worked for this company for years, going above and beyond, and having nothing to show for it. This is why I do not want to apply for the role, however, I would like to pursue back pay for the work that I have been underpaid. This is unfortunately not the first instance where I have had to pursue back pay from Hisense. I am not demanding the role, or a pay increase, simply asking to be treated fairly, and compensated fairly for the work I have done.
You are now my first and only point of contact, so I am coming to you with this concern in the hopes that Hisense will do the right thing.
Let me know if you need anything from me.
Regards,
Fil
Mr Naskovski identified the matters communicated in this email as the First Employment Complaint.
Communications passing between Mr Naskovski and Ms Sun
On 16 July 2021 at 10.42am, Ms Sun responded to Mr Naskovski’s email sent to Mr Glover on 15 July 2021. [19] In her email Ms Sun told Mr Naskovski that she “[didn’t] quite understand what you mean” and communicated the belief that Hisense was following the guidance correctly in relation to Mr Naskovski’s entitlements under the Award. In cross-examination, Ms Sun denied being frustrated about the subject matter of Mr Naskovski’s email, including that he was seeking further payment and a promotion.
[19] Annexure FN-22 to the first Naskovski affidavit; CB 370.
This prompted the following email from Mr Naskovski sent that same day at 4.09 pm:[20]
Hi Ran,
Thank you for your reply. I appreciated you taking the time to look into these concerns.
I will reply to your points in due course, however, in the meantime, could you please provide me with the documentation outlining my award classification, current job description, KPI, as well as employment contract.
Thank you again.
Regards,
Fil
[20] Annexure FN-23 to the first Naskovski affidavit; CB 372.
Mr Naskovski identified this email as the Third Employment Inquiry. Ms Sun agreed that she understood from the email that Mr Naskovski was querying aspects of his remuneration, including back pay.
On 16 July 2021 at 4.39pm, Ms Sun sent Mr Naskovski an email in which she extracted his KPI for the year 2020 and the job description (JD) for the role of team coach. [21] Ms Sun explained that she would send Mr Naskovski the employment contract when she came to the office and that “[t]he NEW KPI and JD will be sent to you after Michael and I have a discussion”.
[21] Annexure FN-24 to the first Naskovski affidavit; CB 374.
On 19 July 2021 Mr Naskovski sent the following email to Ms Sun, which he identified as communicating the Fourth Employment Inquiry:[22]
Hi Ran,
I appreciate your prompt reply, but it seems as though you have only sent snippets of the documentation I requested. Please provide the full, unedited, official documents outlining my award classification, current job description, KPI, as well as employment contract, in their entirety.
Thank you again for your assistance.
Regards,
Fil
[22] Annexure FN-25 to the first Naskovski affidavit; CB 377.
Ms Sun replied to Mr Naskovski the same day repeating her advice about her present inability to access the employment contract because of the (COVID-19) lockdown and informing Mr Naskovski that “we will update the contract and JD when we are back in the office”.[23] Mr Glover was copied into this email. Ms Sun agreed in cross-examination that she understood from the email that contained the Fourth Employment Inquiry that Mr Naskovski was repeating his request for information about his employment, and that such a request was “reasonable”.
[23] Annexure FN-26 to the first Naskovski affidavit; CB 379.
On 28 September 2021, Mr Naskovski received an email from Ms Tang in which she made requests that Mr Naskovski complete and sign a New Employees Detail Form, Superannuation Standard Choice Form and Tax File Number Declaration form and provide a valid police check, proof of residency and a copy of the relevant qualification.[24] The information request was said to be directed at the renewal of Mr Naskovski’s contract.
[24] Annexure FN-28 to the first Naskovski affidavit; CB 383.

On 1 October 2021, Mr Naskovski sent the following email to Ms Tang and Ms Sun:[25]
Hi Jessie,
Hope you are well!
I am not a new employee, you have all of this information in your records already.
Speaking of, Ran, can you please provide me with my employment records as per my request from over 2 months ago.
Thank you,
Regards,
Fil
[25] Annexure FN-29 to the first Naskovski affidavit; CB 385.
Mr Naskovski identified his request made to Ms Sun for his employment records as the Fifth Employment Inquiry.
On 6 October 2021, Ms Sun sent Mr Naskovski an email which stated, among other things, that she could not find Mr Naskovski’s employment contract.[26] Ms Sun copied Mr Glover into this email. Shortly after she sent this email, Ms Sun sent Mr Naskovski a further email in which she asked him to send her evidence to verify that he was “legal to work in Australia”. This was again said to be relevant to the updating of staff employment contracts. Mr Naskovski was informed “if you can’t show us the evidence, we may take further actions”. Ms Tang and Mr Glover were copied into this email.[27]
[26] Annexure FN-30 to the first Naskovski affidavit; CB 387.
[27] Annexure FN-31 to the first Naskovski affidavit; CB 389.
On 10 October 2021 (this being a Sunday), Mr Naskovski sent the following email to Ms Sun, which he identified as communicating the Second Employment Complaint:[28]
Hi Ran,
I believe that all that’s required to verify my right to work is a Birth Certificate as I am an Australia Citizen. As good will, I will also provide a police check for you even though I am already employed by Hisense. These documents may take me some to obtain, but I will send them through as soon as I am able.
Thank you for providing me with three of my annual performance reviews. 2016 and 2020 seem to be missing. Could you please provide these asap?
It’s very troubling to hear that you can’t seem to find my contract. My understanding is that employers are legally obligated to maintain employee records for seven years, and that those employment files must be complete, accurate and properly maintained. Was my Employment Contract lost, and why wasn’t a soft copy made also? Simply saying that ‘you can’t find my contract’ is not really an acceptable response.
I requested my employment records/file in July, and to date, have only received incomplete bits and pieces from you, instead of the whole file. In case I haven’t been clear enough about this, please provide me with my entire employment record, all records, all documents, everything pertaining to my employment with Hisense since September 2015. Please don’t forget to include the Customer Service Team Coach Description, which I specifically requested in July. I am not requesting the new one you mentioned. I require the entire official Customer Service Team Coach Job Description document used from 2017 when I began the role. Please send this to me in advance, and please send my complete employment record asap.
Thanks for your cooperation, I appreciate it a lot.
[28] Annexure FN-32 to the first Naskovski affidavit; CB 391.
Ms Sun recalled receiving the email that contained the Second Employment Complaint and agreed that it involved a further request for copies of employment records.
Mr Naskovski commences a period of personal leave
On the morning of Monday 11 October 2021, Mr Naskovski sent an SMS message to Mr Glover in which he told him that he would be “off sick this week”.[29]
[29] Annexure FN-33 to the first Naskovski affidavit; CB 393.
Mr Naskovski deposed that he was absent due to stress and anxiety, which he attributed to work. As events transpired, Mr Naskovski remained away from the workplace until the date of his dismissal.
The next day, 12 October 2021, Ms Sun sent the following email to Mr Naskovski, which she copied to Mr Glover:[30]
Hi Filip,
As I said, I cannot find other documents. That’s exactly why we want to update your file and the contract.
To continue your employment with Hisense, you need to provide the evidence to show that you have the full working right. As I am aware of, the NPC does not contain the relevant information.
Please return the document (Birth Certificate/AU passport) immediately.
Note: You will not be able to continue to work without providing the evidence by 18/10/2021.
Thanks for your cooperation.
Warm Regards,
Ran Sun
[30] Annexure FN-34 to the first Naskovski affidavit; CB 395-396.
Ms Sun was cross examined about the timing and necessity for this email in circumstances where Mr Naskovski was on personal leave. Ms Sun acknowledged that she knew at the time of sending the email that Mr Naskovski was on sick leave but denied that her approach in sending the email and setting what was described as an “arbitrary deadline” for the production of evidence was unusual. She also denied that it was unfair or was an indication of Ms Sun’s rising frustration with Mr Naskovski.
Allegations of misuse of confidential information
On 12 October 2021 at 12.27 pm Mr Naskovski received an email from Hisense’s international company-wide news email address.[31] The email bore the subject: “[Hisense News] Corruption and Fraud Are Two Red Lines That Cannot Be Broken by All Hisense Management Teams and Employees Around the World…click to read more details !” (fraud and corruption email). The email contained a link to a newsletter that was accessible only through the provision of Hisense credentials, which, on Hisense’s account, was a username and password.
[31] Annexure FN-35 to the first Naskovski affidavit; CB 398-399.
In cross-examination, Ms Sun agreed that the email was sent to all employees of Hisense around the world, numbering in the tens of thousands. She agreed also that the article that was linked to the email identified two instances of fraudulent activity involving Hisense; one in Australia and the other in Austria.
Also on 12 October 2021, Mr Naskovski accessed his work email remotely and forwarded to his personal email address the email sent by Ms Sun on 12 October 2021 (referred to at [48]) and the fraud and corruption email.[32]
[32] First Naskovski affidavit, [51]; Annexure FN-36 to the first Naskovski affidavit; CB 401-466.
On 13 October 2021, ChannelNews published an online article about Hisense. The article, which bore the title, “Exclusive: Hisense racked by $3.7 m fraud scandal” included the following content:[33]
…
Documents obtained by ChannelNews that appeared on an internal server in China and Australia claim the former employee, whose LinkedIn page claims she worked for Hisense for nine years, opened more than 30 bank accounts while employed at Hisense.
…
On Wednesday the 3^rd of February 2021, Ran Sun, the HR and Admin Manager at Hisense Australia, sent an email to key staff claiming the executive management team at Hisense Australia had effective immediately dismissed one (Name withheld by ChannelNews) and that she had been dismissed because of serious misconduct.
“We have zero-tolerance for any fraud and ignorance of the company’s policies,” Ran Sun wrote.
[33] Annexure RS-11 to the first Sun affidavit; CB 850-857.
On 14 October 2021, Mr Naskovski accessed his work email again remotely and forwarded various emails to his personal email address which he described as relating to the performance of his duties, underpayments under the Award and requests for employee records.[34] According to Mr Naskovski, he did so, on advice, to collect evidence about these matters. One of the emails was the Myron dismissal email which Mr Naskovski forwarded to his personal email account at 4.14 pm.
[34] Annexure FN-36 to the first Naskovski affidavit; CB 414-466.
On 15 October 2021, Mr Naskovski discovered that he was unable to access his work email.[35]
[35] First Naskovski affidavit, [54].
On 15 October 2021, using his personal email account, Mr Naskovski wrote to Ms Sun (copying in Mr Glover) to attach his birth certificate.[36] Mr Naskovski queried where the deadline of 18 October 2021 had come from and why Ms Sun had been compelled to make this deadline before his return from sick leave. Mr Naskovski also sought an explanation for why he had been locked out of his work email. The email also attached a medical certificate that certified Mr Naskovski unfit for work from 11/10/21 to 15/10/21.
[36] Annexure FN-38 to the first Naskovski affidavit; CB 472.
On 17 October 2021 (a Sunday), Mr Naskovski sent an SMS message to Mr Glover requesting to take personal leave that week. Mr Glover acknowledged receipt of the message.
On 18 October 2021, at 10.05 am, Ms Sun sent an email to Mr Naskovski with the subject: “Invitation to disciplinary meeting”. The email, which was copied to Mr Glover, read in part:[37]
[37] Annexure FN-39 to the first Naskovski affidavit; CB 476.
Dear Filip,
The purpose of this letter is to formally advise you that an allegation of serious misconduct has recently been brought to our attention.
It is alleged that on 12/10/21 and 14/10/21, you wilfully and deliberately engaged in unconscionable conduct. Specifically, it is alleged that you misused the work email and leaked the internal correspondence to the public. If substantiated, such conduct is inconsistent with the continuation of your contract of employment and is considered serious misconduct under the Fair Work Regulations. Such conduct has the potential to adversely impact on the trust and confidence in the employment relationship that you have with the Company.
If proven, this allegation may result in the termination of your employment without notice.
Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to this allegation.
The disciplinary meeting is to be conducted at 2pm (Melbourne time) on 19^th Oct via ZOOM link below.
…
You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason.
…
In an SMS message that was sent immediately after the email, Ms Sun requested Mr Naskovski to “take gardening leave today and next morning before our meeting” and to “stay away from your daily work”.[38] I accept Mr Naskovski’s evidence that he was shocked that he had been invited to attend a disciplinary meeting and placed on gardening leave.
[38] Annexure FN-40 to the first Naskovski affidavit; CB 479.
On 18 October 2021 at 1.42 pm, Mr Naskovski sent an email to Ms Sun and Mr Glover to which he attached a medical certificate valid to 22 October 2021.[39] Mr Naskovski indicated that he was still unwell and informed Ms Sun that he was not able to attend the disciplinary meeting for this reason and requested that it be rescheduled.
[39] Annexure FN-41 to the first Naskovski affidavit; CB 481-482.
On 18 October 2021 at 3.15 pm, Mr Naskovski sent an email to Ms Sun in which he denied any involvement in the wrong doings alleged and told Ms Sun that the allegations had made him “highly distressed”. [40] He sought confirmation as soon as possible that the disciplinary meeting had been cancelled and that it would be rescheduled at an appropriate time and setting, upon his return to work.
[40] Annexure FN-42 to the first Naskovski affidavit; CB 484.
On 18 October 2021 at 5.24 pm, Ms Sun sent an email to Mr Naskovski which she copied to four other email accounts, including Mr Glover and Julia Guk. The email is reproduced below:[41]
[41] Annexure FN-43 to the first Naskovski affidavit; CB 486-487.
Hi Filip,
Considering the sensitivity and severity of this event, you are requested to provide your clarification for this breaking of confidentiality within 48 hours.
In your email account, [email protected], you forwarded the internal news as below at 12/10/2021 when you were on sick leave.
On 13/10/2021, a news published on Channelnews on 13/10/2021. The news quotes exactly the same words from the internal document.
The document claims the individual “Counterfeiter consumer complaints, fabricated and tampered with CRM system records, invented fictitious compensation amounts and took advantage of her position to collect consumer compensation from the Company over a six-year period”.
The document went on to claim that “The number of payments involved exceeded 1,200 and the amount of the fraud was as high as $3.37M”.
disciplinary meeting dating on 19/10/2021 is canceled (sic). We will decide whether to have another disciplinary meeting according to your reply.
Our internal compliance team and legal team have been involved in the investigation on such emails and calculation on the damages and losses suffered by any misconduct.
At the meanwhile, we expressly reserve the right to pursue any and all available legal and equitable remedies, including, but not limited to, instituting formal litigation proceedings against YOU, and this letter and this email are without prejudice to any other rights or remedies available to Hisense Australia Pty Ltd.
…
It appears that this was the first time that any particulars of the allegation had been provided to Mr Naskovski.
On 19 October 2021 at 8.23 pm, Mr Naskovski sent an email to Ms Sun in which he repeated his denial of any involvement in what had been alleged and offered the following explanation:[42]
…
From what I can tell, you allege that I have leaked an internal document, because ‘channel news’ have published information from said document. I believe that said document would be an internal document that I do not have authority to access, and I never have had access to such documents. I only have access to the company-wide email, like all other company-wide emails circulated regularly.
I believe that this leak you mention could only have been done by someone who does have authority to access such internal documents, which, as mentioned above, I do not.
To be clear, I have not, past or present, leaked any internal documents to ‘channel news’, or otherwise. I have also attached the NPC as reference of my good character. You will see that there is nothing.
Again, I am more than willing to discuss this with you, if required, once my doctor has cleared me as fit to work, and will endeavour to notify you of any changes with the status of my health prior to Monday 25.10.21.
[42] Annexure FN-44 to the first Naskovski affidavit; CB 489.
Between 20 October and 22 October 2021, Mr Naskovski and Ms Sun exchanged emails directed at organising a time for a disciplinary meeting. In his email sent on 22 October 2021, Mr Naskovski explained that he was still unwell and would be seeing his doctor over the weekend, after which he would let Ms Sun know of his medical status.[43]
[43] Annexure FN-46 to the first Naskovski affidavit; CB 493.
Mr Naskovski renews his requests for information about outstanding payments and employment records
On 29 October 2021, Mr Naskovski sent an email to Ms Sun in which he requested the extraction of information from payroll to document sick leave and annual leave taken. The email also stated:[44]
As employers are legally obligated to maintain employee records for seven years, and make such records available upon employee requests, I would appreciate if you could email me the above requested information within three business day.
[44] Annexure FN-47 to the first Naskovski affidavit; CB 495.
Ms Sun responded to Mr Naskovski’s email the same day including to attach payslips over the period 1 May 2017 to 29 October 2021.[45] Ms Sun suggested that if Mr Naskovski was ready to work from Monday, the disciplinary meeting could take place on Wednesday. The email was copied to Mr Glover.
[45] Annexure FN-48 to the first Naskovski affidavit; CB 497.
On 2 November 2021, Mr Naskovski sent an email to Ms Sun which, among other things, contained a request for timesheets and dates of leave taken in 2017 to 2019.[46] The email also stated:
As it has now been two weeks since the initial proposed disciplinary meeting invitation, I believe that Hisense must have completed the investigation into this ‘leak’ allegation that Hisense has made against me, therefore, I would appreciate if you could send me all of the investigation records, explain the need for legal presence in the meeting and also provide a full agenda of the meeting so that I can review this information prior to attending any meeting.
[46] Annexure FN-49 to the first Naskovski affidavit; CB 499.
On 4 November 2021, Ms Sun responded to Mr Naskovski with information concerning the provision of timesheets and leave applications.[47] Ms Sun advised Mr Naskovski in this email that the investigation of the leakage was still ongoing but given it was confidential, “we will not share with you details”. Ms Sun acknowledged that Mr Naskovski had denied all accusations but that “you still didn’t provide the reasonable clarification for forwarding the company’s news to your personal email account”. This email was copied to Mr Glover.
[47] Annexure FN-50 to the first Naskovski affidavit; CB 501.
Mr Naskovski sent an email to Ms Sun on the same day in which he referred to his backpay adjustment of $12,407 made in May 2020.[48] Mr Naskovski explained that he had since performed his own calculations and determined that there was still an amount of around $3,500 outstanding to him. Mr Naskovski made a request for the “remaining documents” with urgency, noting that the issue had been ongoing for him since April 2020. Mr Naskovski identified this email as the Sixth Employment Inquiry.
[48] Annexure FN-51 to the first Naskovski affidavit; CB 503-504.
On 5 November 2021, Ms Sun sent Mr Naskovski an email in which she was critical of the failure of Mr Naskovski to come to her about the error of the amount until now but informed Mr Naskovski that the calculation was accurate.[49]
[49] Annexure FN-52 to the first Naskovski affidavit; CB 506.
Mr Naskovski requests to use annual leave to cover absence
On 7 November 2021, Mr Naskovski sent Mr Glover an email in which he stated that he was unable to provide a timeframe for his return to work because he was still unwell.[50] Mr Naskovski informed Mr Glover that he had been referred to Casey Hospital Emergency Department and it was unlikely that he would be returning to work prior to his sick leave being exhausted. Mr Naskovski requested that “should I run out of sick leave, please start using my annual leave”.
[50] Annexure FN-53 to the first Naskovski affidavit; CB 508.
On 9 November 2021, Ms Sun sent the following email to Mr Naskovski, which she copied to Mr Glover:[51]
Hi Filip,
In Hisense Handbook, it shows the procedure to apply annual leave.
From November to April, it is busy season for our industry. The application for annual leave will not be approved during this period.
If you do have some emergency, we may have a face-to-face discussion when you are back to the office.
If you are not well enough to come back to work, please send me the medical certificate. Your leave will be unpaid after you run out of the paid personal leave.
[51] Annexure FN-54 to the first Naskovski affidavit; CB 510.
Ms Sun was cross-examined about this response. She reluctantly agreed that when she composed this email, she was aware that Mr Naskovski had been admitted to the Emergency Department of Casey Hospital. It was put to her by counsel that her response in these circumstances had been “cold-hearted and incredibly unreasonable”. Ms Sun did not embrace this characterisation and defended her stance taken on the basis that “annual leave and sick leave are different. Sick leave means that he is unable – feeling unwell to come back to work. If he still feel unwell, he could use his unpaid sick leave”. Ms Sun denied that the approach embodied in her response was another indication of her motivation to target Mr Naskovski because of his complaints and for being away on leave.

On 12 November 2021, Mr Naskovski sent an email to Ms Sun in which he exhorted her to reconsider her position and approve his request to take annual leave upon the exhaustion of his sick leave.[52] Mr Naskovski described Ms Sun’s initial response as “absolutely unreasonable” and contrary to s 88(2) of the FW Act.
[52] Annexure FN-55 to the first Naskovski affidavit; CB 512.
On 15 November 2021, Ms Sun replied to Mr Naskovski with the following email, which she copied to Mr Glover:[53]
Hi Filip,
I am a little confused.
If you are unwell and unfit to take your usual responsibilities, the leave should be counted as Sick Leave.
If you are well enough to come back to work, we hope you can return to the office ASAP. You have asked 6 weeks sick leave so far. We are facing extremely pressure from the business as you are the only coach in the team. We have quite a lot tasks on training and QA which need the coach to do.
We can’t afford any leave for this role, especially from Nov. to Apr. I hope you may understand.
[53] Annexure FN-56 to the first Naskovski affidavit; CB 514.
On 19 November 2021, Mr Naskovski sent an email to Ms Sun (copied to Mr Glover) in which he implored her to reconsider and approve his leave request.[54] Mr Naskovski again described Ms Sun’s failure to do so as “unreasonable”. Mr Naskovski also reminded Ms Sun that he was still waiting for the remainder of the documents he had requested in emails sent on 29 October 2021 and 2 November 2021.
[54] Annexure FN-57 to the first Naskovski affidavit; CB 516-517.
On 22 November 2021, Ms Sun sent the following email to Mr Naskovski, copied to Mr Glover:[55]
Hi Filip,
If you are physical/mental unwell, please send me your medical certificate.
Your annual leave application is NOT approved because of operation concern.
You provided the medical certificate for your sick leave from 15/11-19/11. Will you return to work this week? If not, please send me the medical certificate ASAP. Or the disciplinary action may be taken against you.
[55] Annexure FN-59 to the first Naskovski affidavit; CB 529.
On 28 November 2021, Mr Naskovski responded to Ms Sun in a lengthy email (copied to Mr Glover) in which he noted that he sent his medical certificate on Monday morning 22 November 2021 and queried what Ms Sun was referring to as the “disciplinary action you are threatening in your email”.[56] Mr Naskovski also sought a response to his email about the correction of backpay and his request for various documents and raised the issue of his classification level. He foreshadowed that he would be shortly sending further calculations regarding other underpayments. Mr Naskovski identified this email as communicating the Third Employment Complaint.
[56] Annexure FN-60 to the first Naskovski affidavit; CB 531-535.
Communications during December 2021
On 1 December 2021, Mr Naskovski sent Ms Sun an email (copying in Mr Glover) in which he explained that after performing further calculations, he was of the view that Hisense owed him over $5,000 in underpayments.[57] He asked Hisense to rectify the identified errors as soon as possible. Mr Naskovski also queried why his personal leave had been debited for Melbourne Cup public holiday hours. Mr Naskovski described this as the Seventh Employment Inquiry.
[57] Annexure FN-61 to the first Naskovski affidavit; CB 537-539.
In an email sent the same day, Ms Sun informed Mr Naskovski that the public holiday hours had been added back to his personal leave.[58]
[58] Annexure FN-62 to the first Naskovski affidavit; CB 547.
On 18 December 2021, Mr Naskovski sent Ms Sun an email in which he noted her lack of response to any of his last three emails related to back pay claims.[59] He also returned to the annual leave matter and asked for confirmation from Ms Sun that she would arrange four weeks of annual leave payments from 3 January 2022 up to and inclusive of 28 January 2022. Mr Naskovski explained that his personal leave hours had been exhausted, and he needed annual leave to pay his home loan and bills. The email attached a “letter of demand” which sought payment of the amount of $5,393.05 to resolve “the errors from the April 2020 back pay” and an amount of $25,420.48 to resolve “my under-classification and underpayment for the work I performed”. The letter, which Mr Naskovski identified as communicating the Fourth Employment Complaint, concluded with the following:
…
I have tried to deal directly with the company to have this matter resolved, however, in the event that a satisfactory response is not received within 10 business days I will be left with no choice but to commence with a formal claim against Hisense Australia Pty Ltd with Fair Work in order to protect my workplace rights and recover my unpaid wages.
[59] Annexure FN-63 to the first Naskovski affidavit; CB 549-551.
On 20 December 2021, Ms Sun provided a response that addressed the topics of “role of team leader”, “back pay”, “the salary increase”, “annual leave” and “disciplinary meeting”.[60] There was no movement in relation to the first three topics. On the last two topics, the email recorded:
[60] Annexure FN-64 to the first Naskovski affidavit; CB 553-554.
…
4. About annual leave
As stated in our handbook, from Nov. to Apr., no annual leave application will be approved. This period is the busiest time for our industry. Employer can reject the annual leave application for genuine business reason.
5.About Disciplinary Meeting
I have invited you to the disciplinary meeting on 18^th October, 2021. You REFUSED to attend it both online and offline. We hope you can attend the meeting ASAP.
It is your right to go to the Fair Work. I am happy to re-discuss those issues with Fair work commissioner.
…
Communications during January 2022
On 12 January 2022, Ms Sun sent an invitation to Mr Naskovski by email (copied to Mr Glover) to attend an “Informal Welfare Meeting” to be conducted via Zoom.[61] The meeting was arranged for 14 January 2022 at 2pm. The purpose of the meeting was identified as being “to discuss your medical condition and any impact it may have on the performance of your role as Customer Service Coach”.
[61] Annexure FN-65 to the first Naskovski affidavit; CB 556-557.
On 17 January 2022, Mr Naskovski responded to this email.[62] He offered an apology for having missed the email and stated that he was unable to attend a Zoom meeting. He stated that if there was something Ms Sun wanted to discuss, his preference was that this be done in writing.
[62] Annexure FN-66 to the first Naskovski affidavit; CB 558.
This email elicited the following response from Ms Sun, within two minutes (also copied to Mr Glover):[63]
Hi Filip,
So I take you answer as NO. You refused to take in the informal welfare meeting we suggested to discuss your medical conditions.
Please be aware it may impact your employment with Hisense.
[63] Annexure FN-67 to the first Naskovski affidavit; CB 560.
On 21 January 2022, Ms Sun sent the following email to Mr Naskovski (copied to Mr Glover):[64]
Hi Filip,
As you have taken the sick leave for more than 3 months, we are highly concerned about your well-being. We’d like to book a Duty Medical Assessment for you with professional health center (sic).
When will you be available for the period from 24^th Jan – 6^th Feb? Please reply by COB 24^th Jan.
The assessment will take 30 mins, carried by an Occupational Doctor.
I will send you more information as long as we confirm the booking.
[64] Annexure FN-68 to the first Naskovski affidavit; CB 562.
On 25 January 2022, Mr Naskovski sent the following email to Ms Sun:[65]
Hi Ran,
Sorry I missed your email again. I’ve started new medicine which has affected me a bit differently than others.
Anyway, I am a bit confused with the content of this email, and that of your last. I have been seen by at least four different GP’s, all of which have assessed me as currently not fit to work, as per the medical certificates I have sent you, which look to not be sufficient enough for Hisense as you think I now need to be assessed by another doctor?
I wasn’t sure of my rights, so I read the employee handbook, and according to this, the informal meeting you proposed is something that is done before an employee returns to work, which I am not currently in a state to do yet. Also, you have not once asked me for my permission to call my doctors to discuss my private medical information, and yet you have called a few of them without my permission. According to the handbook, you also need to ask for my permission for me to be independently medically examined, yet instead of asking for my permission you are asking for my ‘availability’, which is highly upsetting.
Regards,
Filip
PS…And yet again, if you are ‘highly concerned about my well-being’ you could reconsider and finally grant my annual leave so I can pay my bills and my home loan.
[65] Annexure FN-69 to the first Naskovski affidavit; CB 564.
On 25 January 2022, Ms Sun sent the following email to Mr Naskovski, which was copied to Mr Glover:[66]
[66] Annexure FN-70 to the first Naskovski affidavit; CB 566.
Dear Filip
Invitation to disciplinary meeting
The purpose of this letter is to formally advise you that an allegation of misconduct has brought to our attention.
On 12/01/2022, we sent you the invitation for informal welfare meeting. However, you failed to attend. After our suggestion for rescheduling, you still refused to attend. On 21/01/2022, we invited you to attend a duty medical assessment to evaluate your capability for your duty. You refused to attend too.
We invite you now to participate a disciplinary meeting for your misused the work email in Oct. 2021 and the failure to follow a reasonable management instruction in Jan. 2022.
If proven, this allegation may result in the termination of your employment without notice.
Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to this allegation.
The disciplinary meeting is to be conducted at 2pm (Melbourne time) on 27^th Jan. via ZOOM link below.
####
You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason.
I will have sole responsibility for the conduct of this meeting, together with any resulting decision which is to be made.
You are of course welcome to bring a support person to this meeting should you choose.
On 26 January 2022, Mr Naskovski sent the following email to Ms Sun:[67]
Hi Ran,
I am unwell, and I am on sick leave. I presume you received the medical certificate I sent you on Tuesday? Your unreasonable demands, deadlines and disciplinary threats are not appreciated, and are highly distressing. The previous of which was sent to me on Friday, with the deadline being the following Monday, where you also only saw fit to contact me via mobile after the deadline had been and gone. I have already mentioned multiple times now, that I am unable to facilitate a zoom meeting. Please stop inviting me to them. It is highly unreasonable of you to continually do so and to expect a different reply.
I have already explained to you, in writing, why I sent what I sent to myself, that its purpose was as evidence of my workplace rights being infringed upon by Hisense, and that there has not been any misconduct from me. You’ve only made an unfounded assumption, and have also refused to provide me with the investigation records, if there are any, with any proof of misconduct.
As I have stated, my wellbeing has already been assessed by multiple physicians. Please let me know where it is stated that I am obligated to attend either the proposed welfare meeting, or duty medical assessment.
I have also expressed that if there is something you would like to discuss, I welcome you to do so in writing. Please point out any instance where I have, as you say, ‘refused’. Unable, is not equal to refusal.
Regrettably, as your invitation letter states, the trust and confidence in our employment relationship has already been adversely affected, however this is due to Hisense’s multiple failures to uphold its obligations in regards to the workplace rights of myself as an employee, the company’s unwillingness and repeated refusal to rectify these failings, and the companies adverse response toward me due to my making enquiries related to said workplace rights, but has nothing to do with your absolutely unfounded claims of misconduct on my behalf, none of which have occurred.
Regards,
Filip
[67] Annexure FN-71 to the first Naskovski affidavit; CB 568.
Termination of Mr Naskovski’s employment
On 27 January 2022, Ms Sun sent the following email to Mr Naskovski, which was copied to Mr Glover:[68]
[68] Annexure FN-72 to the first Naskovski affidavit; CB 570-571.
Hi Filip,
This letter serves to confirm that a decision has been made to terminate your employment by reason of serious misconduct.
On 18/10/21, we sent you an invitation to the disciplinary meeting. It is alleged that you misused the work email and leaked the internal correspondence to the public. If sustained, it constitutes a serious misconduct which may result in the termination of your employment without notice.
We invited you to the meeting to clarify and explain. However, you refused to attend.
You’ve taken sick leave for more than 3 months. We have invited you to the informal welfare meeting on 12/01/2022 to discuss your diagnosis, treatment, and the date of return to work. You refused to attend.
On 21/01/2022, we invited you to attend a duty medical assessment which will evaluate your condition to return to work. You refused to attend.
Consider your serious misconduct mentioned above and your incorporation, we decide to terminate your employment with Hisense, effectively immediately.
The final pay will be made within 7 days after your termination via EFT to your bank account.
Warm Regards,
Ran Sun
On 3 February 2022, Ms Sun sent an email to Mr Naskovski that acknowledged his return of equipment, and which attached an Employment Separation Certificate that recorded “dismiss for serious misconduct” as the reason for separation.[69]
[69] Annexure FN-72 to the first Naskovski affidavit; CB 575-577.
THE GENERAL PROTECTIONS CASE
The following matters are agreed, or were not seriously contested:
First, that Hisense is amenable to the General Protections provisions in the FW Act.
Second, that Mr Naskovski exercised workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act when he made a series of complaints and inquiries about his employment (the first to seventh employee inquiries and the first to fourth employment complaints).
Third, when Hisense terminated Mr Naskovski’s employment, it took adverse action against him within the meaning of s 342(1) of the FW Act.
Hisense does not concede that when Mr Naskovski took time off from work from 11 October 2021 to the date of termination of his employment he did so because he was unfit for work because of personal illness or injury and was therefore exercising his workplace right to utilise personal leave. Neither does Hisense concede that the making of the allegation on 18 October 2021 involved the taking by it of adverse action against Mr Naskovski.
The legislative framework and matters of principle
Part 3-1 of the FW Act is entitled “General Protections”. Among other things, it provides for a range of protections designed to safeguard the exercise of “workplace rights”. One of those protections is contained in s 340(1) of the FW Act, which provides (and at all relevant times provided) as follows:
340     Protection
(1)      A person must not take adverse action against another person:
(a)       because the other person;
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Part 3-1 of the FW Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons provided that the proscribed reason (or reasons) is a “substantial and operative reason” for the employer’s adverse action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [104].
Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Part 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that Part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Section 539(1) of the FW Act is entitled “Applications for orders in relation to contravention of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as a “civil remedy provision”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of that section. The Court has the power to grant relief in the nature of declarations, compensation and penalties, among other things.
Section 739 of the FW Act deals with liability of bodies corporate. It relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate within the scope of his or her actual authority is taken, for the purposes of the Act, to have been engaged in also by the body corporate. Subsections (2) and (3) relevantly deal with how the state of mind of a body corporate is established.
The nature of the inquiry to be undertaken in the assessment of whether a decision maker has been actuated by a prohibited reason has been the subject of numerous decisions, many of which were helpfully summarised by the Full Federal Court in Alam v National Australia Bank Limited (2021) 288 FCR 629 at [14] as standing for principles that include:
…
d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
e)   the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
f) while the evidence of the decision-maker as to the reasons for the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
g)   the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be a “weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins v South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116], but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action: ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];
h)   even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
i)    the decision-maker’s knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

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.
The first Sun affidavit also contained Ms Sun’s denial that she had made the allegation of serious misconduct against Mr Naskovski for the reason that he had made the first to fifth employment inquiries, the first and second employment complaint or had taken personal/carer’s leave from 11 October 2021.[71]
[71] First Sun affidavit, [62].
Similarly, the first Sun affidavit contained Ms Sun’s denial that she had decided to terminate Mr Naskovski’s employment for the reason that he had made the first to seventh employment inquiry, the first to fourth employment complaint or had taken personal/carer’s leave from 11 October 2021.[72]
[72] First Sun affidavit, [70].
The reasons offered by Ms Sun are also amenable to evaluation against the responses given by her during cross-examination. In this regard, a focus of questioning was on the steps taken by Ms Sun to investigate the “leak” of Hisense sensitive information referred to in the ChannelNews article.
Ms Sun explained that after she gave instructions to IT to investigate whether emails had been sent outside of Hisense, she was told that the best that IT could do was to provide a list of those employees who had “clicked” on the link to the internal article.
Ms Sun told the Court that the list provided by IT was a long list, but she recalled that Mr Naskovski’s name appeared on it. When questioned about the timing of events, Ms Sun could not initially recall whether she had logged into Mr Naskovski’s emails only after seeing the list. She stated this was the case only when reminded that this chronology of events was recorded in the second Sun affidavit.[73]
[73] Second Sun affidavit, [19]-[20].
Ms Sun was asked why she had waited until 14 October 2021 to access Mr Naskovski’s emails when she was aware that he had been away on 12 October and his last day of absence was going to be 15 October 2021. This produced the following exchange:[74]
Mr Lake: Why was it all of a sudden on 14 October which was the day before his period of sick leave was notified until – it was notified that he would be absent until the following day – 15 October – why was it, it was on day four that you went into his emails to check whether there was any work matters that needed to be attended to?
Ms Sun:Because it took time for IT to reset the password. So as long as I knew that he started taking sick leave without stating a return date, I thought that it would be better for us to have access to his email account in case there is some kind of delay in work-related email. And we have to – because we cannot reset it from Hisense Australia – we have to go back to the headquarter. It takes several days for them to reset it and sent the new password to me.
Mr Lake: So you’re saying that some day one or two days before 14 October you had requested head office – Hisense – somewhere else beyond Australia – to reset an employee’s password in order to gain access to their emails in circumstances where all they had done was notify you that they were away from work for a week in circumstances where you continued to communicate with them over that week and you didn’t tell them that you were resetting their email in order to get into their email? Is that your evidence?
Ms Sun: That’s the reason I asked to reset his password. Because when – afraid that he is on sick leave, he cannot process those business related emails.
[74] Transcript Day 1, page 60, lines 29-43.
It was put to Ms Sun that what she had done in relation to monitoring Mr Naskovski’s email account was unusual and had been motivated by her frustration with an employee who was making life difficult for her by asking questions about his employment and making complaints about money that had not been paid. Ms Sun denied this was the case and instead identified her role as one that required her to support all employees about all HR related inquiries.
Ms Sun acknowledged that she had instructed the Hisense IT team to revoke Mr Naskovski’s access to his work emails on 14 October 2021, following the discovery that he had sent emails to his personal account.
One of the emails forwarded by Mr Naskovski was the Myron dismissal email which had been sent by Ms Sun and contained language which had made an appearance in the ChannelNews article. The Myron dismissal email was forwarded by Mr Naskovski to his personal email account at 4.14 pm on 14 October 2021.
Ms Sun was asked to explain how it could be said that Mr Naskovski was responsible for the leak when the ChannelNews article, which contained the language in question, had been published the day before (on 13 October 2021). Ms Sun acknowledged this to be the case but stated that the “critical email” was instead the one that Mr Naskovski sent to himself on 12 October 2021, this being the fraud and corruption email which contained a password protected link to an internal article whose content had been reproduced in the ChannelNews article.
In this context, it was put to Ms Sun that Mr Naskovski had consistently denied that he had accessed the internal newsletter; while he had clicked on the link, he had not been able to proceed beyond the point where he had been asked for employee details. This produced the following exchange:[75]
[75] Transcript Day 1, page 65, lines 10 to page 66, line 24.
Mr Lake: …and he tried a couple of passwords, but he didn’t get entry because he couldn’t remember his password. He …?...
Ms Sun: Well, I didn’t believe that because he has access to his email address; it’s the same. We have an integrated Hisense account…
Mr Lake: Yes?...
Ms Sun: …that everything you need to login – every website or email address is the same username and the same password.
Mr Lake: Okay. But his evidence is clear: he never accessed that document behind the link, and there’s no evidence at all before the court that he did access that document. That would be information that would exist on the Hisense side of things. If you were able to access who had clicked on the link, you would also be able to access who had accessed the document behind the link?
Ms Sun: He has the access behind the link, because he has the access to the email account.
Mr Lake:Well…?
Ms Sun: It’s the same password.
Mr Lake: …did you ever check with IT who…?
Ms Sun: IT said that there is a list of the reader that actually clicked login that…
Mr Lake: There’s a list of the readers…?
Ms Sun: Yes.
Mr Lake: …or the Hisense employees who clicked on the link?
Ms Sun: That’s what I mention we discuss previously.
Mr Lake: Yes. What about the list of Hisense employees who not only clicked on the link but who accessed the document behind the payroll, the – behind the login details?
Ms Sun: That’s the list for – the name list is the one who actually clicked login and read the passage.
Mr Lake: Well, where does that – where is any of that said?
Ms Sun: Well, we have discussed this several minutes that it’s a list of reader. I didn’t say that because I – I think .... reading it, so I just gave up. I didn’t say that.
Mr Lake: Ms Sun, it’s totally implausible that this matter that you viewed as so serious that you would terminate an employee based on suspicions, that there is no records created then or available now?
Ms Sun: He was…
Mr Lake: Are you…?
Ms Sun: He was dismissed because he cannot follow the reasonable instruction. We asked him to participate in the discipline meeting to give further explanation and clarification, and we asked him to participate to the duty medical assessment, and he failed to – he refused to do so.
Mr Lake: Okay. We will…?
Ms Sun: That’s the reason for dismissal.
Mr Lake: We will come to that. But the reason for the allegations was because of your suspicion that he had leaked this information. And I want to put to you a proposition – I want you to respond to it – it is completely implausible that an experienced HR practitioner, as you are, would not follow a proper documented process. And, indeed, the evidence that you’ve put before this court that is here in your affidavit is about the list being based on employees clicking on the link, not accessing what’s behind the link. And you’ve known Filip’s explanation since his second affidavit, that he never accessed what was behind the link?
Ms Sun: He – he has the access of the link behind.
Mr Lake: Well, I want to put to you that there is no evidence at all before the court that shows that that was what the list of employees generated referred to. The evidence before the court is that it was the list of employees that clicked on the link. And your attempts now to say it was something more than that is not credible. What do you say to that?
Ms Sun: I say that I saw those email forwarded to his personal email address. He has the access to that link with his password and username, which he definitely know at that time – well, yes. That’s all I know.
It was established through further questioning, that Mr Naskovski had sent the last email to his personal email account at 4.48 pm on 14 October 2021 after which there was a flurry of activity on behalf of Ms Sun and the IT Department. This was described – and put to Ms Sun – as follows:[76]
Mr Lake: Upon your evidence, this all then happens after 4.48 pm. IT reset his email and send you the password. You go in. You access his email. You – rather than look at his in-box which is the evidence that you gave as to why you wanted to look in his email – you wanted to see whether there were emails that needed to be responded to – you’ve gone to his sent items. You’ve looked at his sent items. You’ve identified these particular emails. You’ve disregarded the fact that this second email was sent after the publication of the article. You’ve instructed IT to prevent access to his email and that has been implemented that evening. So bearing in mind that we’re somewhere after 4.48 pm. Your evidence relies upon all of these happening in what I’m putting to you is a very unlikely short period of time.
[76] Transcript Day 1, page 68, lines 15-26.
Ms Sun told the Court that she had looked at Mr Naskovski’s sent items (rather than just confining her search to emails from customers in the “in box”) because “Maybe there is some emails that need further action from Hisense to keep communicating with the customers. Not sure. I think just a kind of work of habit”.[77]
[77] Transcript Day 1, page 68, lines 34-36.
In the context of Ms Sun’s evidence that she “genuinely believed, and still believe[s] that the applicant was the person who leaked the internal emails to Channel News”,[78] it was put to her that this demonstrated a fixated, targeted approach to Mr Naskovski. Ms Sun’s response was that “according to the evidence that I have he is the only suspect that I have and my allegation is made because of that”.[79]
[78] Second Sun affidavit, [22].
[79] Transcript Day 1, page 69, lines 24-27.
Ms Sun’s subsequent responses however revealed that she spoke to no other employees about the suspected leak; according to Ms Sun, she did not have any other suspect. Mr Naskovski was the only employee to Ms Sun’s knowledge who forwarded the email to his personal email account.[80]
[80] Transcript Day 1, page 69, lines 39-41.
In the context of being taken to her email sent to Mr Naskovski on 4 November 2021 (referred to at [69] above), the following was put to Ms Sun:[81]
So do you really expect her Honour to accept that, this investigation that you say involved compliance, legal, IT and is still going, you know, a month after these matters in question, that there is not a single document available to put before this court to demonstrate the credibility of the story, your account that you give to all of this?
[81] Transcript Day 1, page 70, lines 29-33.
Ms Sun’s response was that the evidence she had was that “he forwarded the email to his personal email account”.[82]
EVALUATION OF THE REASONS
[82] Transcript Day 1, page 70, line 33.
The applicant’s submissions
Mr Naskovski submitted that despite there being direct evidence before the Court from the putative decision maker, Ms Sun, this was a case where there were sound reasons to treat this evidence with caution. First, it was said that the evidence was unreliable and second, it was contradicted by objective evidence.
Mr Naskovski submitted that Ms Sun had offered three reasons for the dismissal decision.
First, her suspicion that Mr Naskovski had leaked confidential information.
Second, Mr Naskovski’s “refusal” to participate in an interview at the end of January 2022.
Third, Mr Naskovski’s “refusal” to follow a “lawful and reasonable direction” to attend a medical assessment.
As to the first reason, it was undermined because objectively, Mr Naskovski was not responsible for the leak. The uncontroverted evidence before the Court was that Mr Naskovski had not forwarded the email of 2 February 2021 to his personal email account until after the publication of the ChannelNews article. This fact was said to be obvious and ascertainable from the “get-go”.
Likewise, it was said that Mr Naskovski’s evidence that he had never accessed the newsletter accessible via a link in the fraud and corruption email had not been seriously challenged by Hisense either at the time that he conveyed this information or subsequently.
As to the second and third reasons, Mr Naskovski submitted that neither document relied upon by Hisense as communicating or constituting a requirement or direction to attend a medical examination or a disciplinary meeting, in fact possessed this character. Both emails have been reproduced earlier – at [87] and [89] respectively – and contain language which Mr Naskovski submits falls short of communicating an instruction that was directory in nature.
Mr Naskovski submitted that the performance of Ms Sun as a witness had characteristics in common with those the subject of observations made by Reeves J in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199 at [25] where his Honour said:
Because his evidence was so critical in the determination of this proceeding, I watched Mr Priestley closely when he gave his evidence. From those observations I found Mr Priestley to be generally unsatisfactory as a witness. He was often evasive in his answers and, while he was surprisingly clear about his recollection of the detail of past events, or his past state of mind, when it suited his purposes, or those of Hail Creek Coal, he was quite vague when it did not. In addition, I thought he maintained irrational positions in the face of clear and cogent material to the contrary, thereby demonstrating an obstinancy which was inconsistent with someone attempting to give a fair and accurate account of events. In making this observation, I have attempted to make allowance for the natural tendency of litigants to be somewhat partisan.

Ms Sun joined issue with the suggestion that Mr Naskovski supervised other employees, preferring to describe his role as one of “support” instead. She also resisted the suggestion that Mr Naskovski led a team or that he provided leadership “in a team leader way to his team” to the call centre staff. Ms Sun agreed that Mr Naskovski had responsibility for monitoring the performance of and aiding the development of on and off-site call centre operators but insisted that this did not involve the exercise of a leadership role, preferring instead to characterise it as part of a quality control function.
In the same context, Ms Sun was taken to an Annual Performance Appraisal Form for Mr Naskovski for the year 2018[98] on which the supervisor had recorded an entry under “The most important achievements of the whole year” as “Creating a new training manual in a very short time which was accurate. Fil delegated some of the training to other staff which shows good leadership skills”. Ms Sun denied this to be an example of leadership stating that “[Mr Naskovski] was not a leader – team leader – at that time. At least with the title”.
[98] Annexure FN-5 to the first Naskovski affidavit; CB 205-207.
The extended hours claim
In support of his claim to have worked time beyond 7 pm on occasions, Mr Naskovski relied upon a set of rosters for the period January 2015 to December 2019 that were annexed to the first Naskovski affidavit[99] and which were said by Mr Naskovski to record the shifts worked by various Hisense employees in shifts of varying length and start and end time. The final column recorded a shift that began at 11.30 am and ended at 7.30 pm.
[99] Annexure FN-2A to the first Naskovski affidavit; CB 137-196.
Hisense instead relied on a set of timesheets that were annexed to the first Sun affidavit[100] and which recorded against various dates across a fortnight, Mr Naskovski’s start and finish time and the number of hours worked for the period beginning 10 September 2015 and ending 12 May 2017 (this being the final day of Mr Naskovski’s casual employment). Mr Naskovski accepted in cross-examination that his signature appeared on these timesheets, and he had signed them in the knowledge that his pay would be dependent on the hours recorded in the document. Mr Naskovski did however suggest in his evidence that he regarded the timesheets as a type of “generic” document to be paid regardless of the hours in fact worked including because at the time that he worked with Ms Myron, he was led to believe that there was no afternoon shift. In other words, putting in “9 to 5 was the same as putting in 11.30 to 7.30”.[101]
[100] Annexure RS-1 to the first Sun affidavit; CB 656-698.
[101] Transcript day 1, page 16, line 45 to page 17, line 2.
In re-examination it was clarified that in fact, Mr Naskovski did not dispute the accuracy of the timesheets insofar as across the period beginning 18 May 2016 up to and including 12 May 2017, they recorded him performing shifts that finished at 7.30 pm. His disagreement ultimately was confined to the period February 2016 up to and including April 2016 in respect of which the timesheets recorded that Mr Naskovski worked shifts that ended at 7 pm or 5 pm. Mr Naskovski offered, as an explanation for this discrepancy, that in February 2016 what had previously been three afternoon shifts (11 to 7, 11.30 to 7.30 and 12 to 8) was consolidated into the single afternoon shift of 11.30 to 7.30 pm.
As far as the permanent period was concerned, it was Mr Naskovski’s evidence that when he transitioned from a casual to a permanent employee on 15 May 2017, he continued to work the 11.30 am to 7.30 pm shift until sometime in January 2019, at which point Hisense made a decision to change the shift to 11 am to 7 pm instead. Mr Naskovski acknowledged that after this time his shifts generally went from 11 am to 7 pm.
During cross-examination, Ms Sun properly accepted that because she was not employed by Hisense at the time, she was not in a position to contradict Mr Naskovski’s evidence about the shift changes that occurred in February 2016 and again in January 2019.
Ms Sun also accepted that Hisense had produced only three timesheets that related to the permanent period (beginning 30 April 2020 and ending on 27 May 2020).[102] She explained that these were produced only in circumstances where a full-time employee was claiming overtime. She only faintly resisted the suggestion that the timesheets were produced at a time coinciding with COVID-19 lockdown when staff were requested to generically record a start time and finish time of 10 am to 6 pm because of the flexibility of working from home.
[102] Annexure RS-7 to the first Sun affidavit; CB 749-751.
In closing argument, Hisense submitted that the Court should prefer the timesheet evidence over the rosters relied upon by Mr Naskovski. Hisense submitted that the timesheets were a contemporaneous record which had in most cases been signed by the applicant. On the other hand, the rosters had certain anomalies that had not properly been explained by the applicant.
ANALYSIS – CLASSIFICATION AND UNDERPAYMENT
The starting point for the analysis must be the text of the Award. The parties agreed that although Mr Naskovski’s employment transcended two Award periods, the classification provisions that were the subject of argument in this proceeding did not alter as between the 2010 and 2020 Award in any material way. For convenience, I will set out the relevant provisions as they appear in the 2020 Award.
Clause 12 of the Award is headed “Classifications”. It states:
12.1An employer must classify an employee covered by this award in accordance with Schedule A – Classification Structure and Definitions.
NOTE: The minimum rates applicable to the classifications in this award are in clause 16 – Minimum rates.
12.2The classification by the employer must be based on the characteristics that the employer requires the employee to have, and skills that the employer requires the employee to exercise, in order to carry out the principal functions of the employment.
12.3Employers must notify employees in writing of their classification and of any change to it.
Clause 16.1 of the Award prescribes minimum wage rates for adults employed in each of the employee classifications specified in column 1 of Table 3 – Minimum rates. As might be expected, those rates ascend by level: Level 1 – Year 1 employees attract the lowest minimum wage rate and Call centre technical associate (which appears after Level 5) attract the highest.
Schedule A to the Award contains classification definitions. For present purposes, it is necessary to focus only on the following, which are reproduced in the order in which they appear:
A.3     Level 2
A.3.1   Characteristics
a)   This level caters for employees who have had sufficient experience or training to enable them to carry out their assigned duties under general direction.
b)   Employees at this level are responsible for and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
c)   The work of employees at this level may be subject to final checking and, as required, progress checking.
d)   Employees at this level may be required to check the work or provide guidance to other employees at a lower level or provide assistance to less experienced employees at the same level or any combination of one or more of these requirements.
…
A.3.3   Typical duties and skills – Call centre customer contact officer grade 1
a)   A call centre customer contact officer grade 1 is employed to:
i.use known routines and procedures;
ii.have some accountability for quality of outcomes;
iii.receive calls;
iv.use common call centre technology;
v.enter and retrieve data;
vi.work in a team;
vii.manage their own work under guidance;
viii.provide at least one specialised service such as sales and advice for products and services, complaints or fault enquiries and data collection surveys.
b)   A call centre customer contact officer must be classified at this level if they hold a Certificate II in Telecommunications (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.3.3(a).
A.4     Level 3
A.4.1   Characteristics
a)   Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work.
b)   Employees at this level require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
c)   Employees at this level may be required to give assistance or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.
…
A.4.3   Typical duties and skills – Call centre customer contact officer grade 2
a)   A call centre customer contact officer grade 2 is employed to:
i.perform a broader range of skilled operations than grade 1;
ii.exercise some discretion and judgment in the selection of equipment, services or contingency measures;
iii.work within known time constraints;
iv.provide multiple specialised services to customers (including complex sales, service advice for a range of products or services and difficult complaint and fault inquiries);
v.deploy service staff using multiple technologies;
vi.exercise a limited amount of leadership over less experienced employees.
b)   An employee must be classified at this level if they hold a Certificate III (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.4.3(a).
* NOTE: These typical duties and skills may be either at Level 3 or Level 4 depending on the characteristics of that particular level.
A.5     Call centre principal customer contact specialist
Employees at this level are employed to:
a)   perform a broad range of skilled applications; and
b)   provide leadership as a coach, mentor or senior staff member, and provide guidance in the application and planning of skills; and
c)   work with a high degree of autonomy with the authority to make decisions in relation to specific customer contact matters; and
d)   take responsibility for the outcomes of customer contact and resolve complex situations.
A.6     Level 4
A.6.1   Characteristics
a)   Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice or information to the organisation and clients in relation to specific areas of their responsibility.
b)   Employees at this level require only limited guidance or direction and would normally report to more senior staff as required.
c)   A principal feature, but not a requirement, of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordination of work flow, checking of progress, quality of work and resolving problems.
d)   Employees at this level exercise initiative, discretion and judgment at times in performing their duties.
e)   Employees at this level are able to train employees in Levels 1-3 by personal instruction and demonstration.
…
A.6.3   Typical duties and skills – Call centre customer contact team leader
a)   A call centre customer contact team leader is employed to:
i.perform a broad range of skilled applications;
ii.evaluate and analyse current practices;
iii.develop new criteria and procedures for performing current practices;
iv.provide leadership in team leader role and provide guidance to others in the application and planning of skills;
v.work with a high degree of autonomy and exercise authority to take decisions in relation to specific customer contact matters.
b)   An employee must be classified at this level if they hold a Certificate IV (Customer Contact) or equivalent and are employed to perform the duties and skills under clause A.6.3(a)
* NOTE: These typical duties and skills may be either at Level 3 or Level 4 depending on the characteristics of that particular level.
Mr Naskovski submitted in closing argument that if the Court was to accept his classification argument about the permanent period, then as a matter of logic, the Court should accept his argument about the casual period.
It is convenient therefore to set out the parties’ respective positions on the permanent period before turning to their contentions on the casual period.
Mr Naskovski acknowledged that there was some overlap between the skills and duties described for Level 3 and Level 4 employees. He submitted however that the duties and skills set out in A.6.3(a)(iii), (iv) and (v) – present in Level 4 and absent from Level 3 – were the key differentiators between the two classifications and coalesced in there being a greater emphasis on leadership, discretion, authority and supervision in a team coordination sense which justified the elevation to Level 4.
Mr Naskovski submitted that the language used in relation to Level 3 was less emphatic when it came to the requirement to provide assistance or demonstrate leadership. For example, cl A.4.1(c) which provides that employees may be required to give assistance or guidance…to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.
Mr Naskovski pointed also to cl A.4.3(a)(ii) - exercise some discretion and judgment in the selection of equipment, services or contingency measures and cl A.4.3(a)(vi) – exercise a limited amount of leadership over less experienced employees – as making good this distinction.
Mr Naskovski submitted that the evidence, including performance appraisals and other documents referring to the work performed by Mr Naskovski, overwhelmingly supported the conclusion that during the permanent period Mr Naskovski’s correct classification was as a Level 4 employee. He submitted that Hisense had produced no evidence to contradict this and to the extent that Ms Sun resisted a number of matters put to her about the quality and character of the work performed by Mr Naskovski, her resistance was neither sensible nor reasonable.
Hisense submitted that Mr Naskovski’s correct classification was that of call centre principal customer contact specialist (referred to at A.5) which was a classification more closely aligned to Level 4 but with important differences that applied in the case of Mr Naskovski.
It was said firstly that a distinguishing factor that separated the A.5 level classification from the Level 4 was that the latter acknowledged that a person holding a relevant Certificate IV would rise to that higher classification. Hisense noted that Mr Naskovski did not hold a Certificate IV in Customer Contact. Hisense also relied on the fact that the Level 4 typical duties included the requirement that the employee provide leadership in a team leader role whereas the A.5 classification referred to provide leadership as a coach.
Hisense submitted that Mr Naskovski had failed to produce evidence sufficient to demonstrate that he was leading a team or that he was evaluating and developing criteria and procedures, a further set of duties and skills that was absent from A.5 but a requirement for Level 4. Hisense submitted that the evidence went only so far as to suggest that Mr Naskovski had helped in the creation of a manual, a task which Hisense’s counsel described as “rewriting an existing manual according to existing criteria”.
Mr Naskovski submitted in relation to the casual period that the duties described by him in his affidavit[103]aligned much better with the Level 3 classification rather than the Level 2 classification for which Hisense contended. Mr Naskovski submitted that he had not been questioned or challenged on any of this evidence.
[103] Second Naskovski affidavit, [7(c)].
Hisense submitted in relation to the casual period that the best guide to the duties in fact performed by Mr Naskovski was the position description for the job title of Warranty Specialist, this being a document that the applicant also relied upon given that it was annexed to his third affidavit.[104] Hisense submitted that the position description, including the KPIs which it identified, closely aligned with the call centre customer contact officer grade 1 classification. To illustrate the point, Hisense identified the following examples taken from the “typical duties and skills” for the classification.
[104] Annexure FN-91 to the third Naskovski affidavit; CB 626-634.
First, the use of known routines and procedures (A3.3(a)(i)) – Hisense submitted that the position description set out very clear guidelines for what the officer employed in the role was to be doing. It was a case of simply following those instructions “by the book”.
Second, the requirement to have some accountability for quality of outcomes (A3.3(a)(ii)) – Hisense submitted that this was reflected in the KPIs identified in the position description.
Third, there were no qualifications required which was consistent with what counsel described as the need for a “can-do attitude” rather than particular qualifications that were embodied in the position description.
Hisense submitted that Mr Naskovski, including through his evidence, had failed to establish that the work he performed as Warranty Specialist qualified him for the additional duties identified in the next classification up (being Warranty Claim Speciality/Customer Service Inbound Operator). Hisense submitted that the distinguishing factors necessary for elevation to the next classification included the following:
First, the requirement to exercise discretion and judgment in the selection of equipment, services or contingency measures (A.4.3(a)(ii)) – Hisense submitted that there was no evidence before the Court that while employed as a casual employee, Mr Naskovski was providing specialised services.
Second, the requirement to exercise leadership over less experience employees (A.4.3(a)(iv)) – Hisense submitted that in the casual period, there was no evidence that Mr Naskovski was fulfilling this function.
Hisense acknowledged that there was some overlap between the two levels for which the parties contended and submitted that reconciliation should occur by means of application of the “major and substantial” employment principle, articulated in cases such as Australian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512. Hisense submitted that this principle, which emphasised the main function of the employee, could be applied in resolution also of the classification dispute concerning the permanent period. The principle, when applied in that context, yielded the result that Mr Naskovski’s main function or “major and substantial” employment, was that of coach, rather than team leader.
Conclusion on classification
As referred to in the submissions of Hisense, the process for determining an employee’s classification under an Award is known as the “major and substantial test” and reflects the well-established principle applied by courts and industrial tribunals. In Michael v Network Ten Pty Limited [2023] FCA 1091 at [62]-[63] Snaden J observed about the test:
62.The “major and substantial” test is one of long standing. It is recognised by authority as a means of determining the proper classification within which an employee should be understood to be (or to have been) employed in circumstances where his or her duties expand (or expanded) throughout those of multiple classifications or across multiple industrial instruments. In such circumstances, the court is concerned to recognise the employee in question as being employed in the classification that accords with the major and substantial aspect of his or her employment.
63.In Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18, Sheldon J described the point of principle in the following terms (at [19]):
This principle is almost as old as industrial arbitration and it takes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which if taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration.
Permanent period

I am satisfied that on the evidence before the Court, including the largely unchallenged testimony of Mr Naskovski as to the duties and tasks that he performed during the permanent period, as well as the responsibilities that he routinely assumed or was given, that his proper classification during this time was as a Level 4 employee. Mr Naskovski accordingly was entitled during the permanent period to be paid consistently with this classification.
I accept the submission of Mr Naskovski that the key differences between Level 3 and Level 4 (including the hybrid, call centre principal customer contact specialist role) are the level of leadership, discretion, authority and supervision in a team coordination sense, which receives greater emphasis in the higher classification. This conclusion follows from a comparison between the respective characteristics and typical duties and skills of the two classifications. The evidence before the Court, including that of Ms Emmitt, who was clear in her attribution to Mr Naskovski of leadership responsibilities and saw little to distinguish between the role of Mr Naskovski and that performed by Team Leader, Mr Virk, that Mr Naskovski was routinely and for significant periods of the working day, operating in a manner that involved these differentiating qualities and responsibilities.
As not uncommonly occurs, it appears that Mr Naskovski’s role evolved so that he performed duties and tasks and assumed responsibilities that outpaced his position description.
To the extent that Ms Sun challenged aspects of Mr Naskovski’s account of his role, I find that she was not well placed to give evidence about the work in fact performed by Mr Naskovski. This was because, as emerged during cross-examination, she worked in a different physical area to where the call centre was located and because the start and initial months of her employment with Hisense had coincided with the beginning of the COVID-19 lockdown, she had spent most of the time working from home and had seldom attended the office. Where her evidence was contrary to that of Mr Naskovski, I preferred Mr Naskovski’s account. Ms Sun’s challenges were in any case largely semantic. She took issue with the attribution to Mr Naskovski of leadership responsibilities and tasks because he was not occupying the role of “Team Leader”.
Casual period
Although Mr Naskovski invited the Court essentially to find that his classification argument should prevail as a consequence of the work he performed during the permanent period, I do not find this argument persuasive. There was limited evidence or submissions directed at why such a conclusion should follow. Ultimately, the analysis must operate on the evidence of the work in fact performed and this is essentially limited to the account given by Mr Naskovski which is recorded at [211] above.
I accept the argument of Hisense that the work performed by Mr Naskovski and the responsibilities assumed by him, more closely aligned with those identified in the position description for Warranty Specialist and that in turn, those tasks and responsibilities conformed more closely to that of a Level 2 employee. In particular, I accept the argument of Hisense that there was insufficient evidence to establish that Mr Naskovski was, during the casual period, exercising judgment in the selection of equipment, services or contingency measures, that he provided any “specialised services” to customers, deployed other staff, or exercised leadership.
Underpayments and contraventions
In addition to my finding as to classifications, I find also that to the extent that Mr Naskovski performed work during the casual period and the permanent period after 7 pm, he was entitled to be paid an additional penalty rate corresponding with his classification as a Level 2 and Level 4 employee, respectively.
While the Court is unable to be precise as to the number of occasions on which such hours were performed, this occurred within the parameters described below that reflect the evidence adduced during the hearing and my finding that during the permanent period, the record of hours contained in the rosters produced by Mr Naskovski should be preferred over the very limited number of timesheets relied upon by Hisense in respect of this period. As noted earlier, Ms Sun was not in a position to contradict Mr Naskovski’s evidence that he had continued (in his transition from casual to permanent employee) to perform the 11.30 am to 7.30 pm shift until sometime in January 2019 or that shift changes had occurred as described by Mr Naskovski in February 2016 and in January 2019. The information recorded in the rosters is generally consistent with this shift pattern.
It therefore follows, as a result of the findings recorded above, that Hisense has contravened the following provisions of the FW Act and is liable to rectify the underpayments that arise as a consequence:
·In breach of clause 28.4(c) of the Award and s 45(1) of the FW Act, Hisense did not pay Mr Naskovski penalty rates of 115% for all afternoon shifts, as a Level 2 employee, performed for the period from 21 September 2015 to 14 May 2017.
·In breach of clause 28.4(c) of the Award and s 45(1) of the FW Act, Hisense did not pay to Mr Naskovski penalty rates of 115% for afternoon shifts finishing after 7.00 pm and at or before midnight as a Level 4 employee for the period from 15 May 2017 to December 2018.
·In breach of clause 29.3(ii) of the Award and subsection 45(1) of the FW Act, Hisense did not pay Mr Naskovski annual leave loading of 17.5% during a period of paid annual leave as a Level 4 employee, on days he would have been performing afternoon shift work, for the period from on or around 15 May 2017 to 31 December 2018.
·In breach of clause 28.6 of the Award and s 45(1) of the FW Act, Hisense did not pay Mr Naskovski special rates of double time for all work done on a Saturday, Sunday and public holidays as a Level 4 employee for the period from on or around 15 May 2017 to 31 December 2018.
The parties are encouraged to perform and agree on the calculations required to identity the extent of the underpayment as well as to confer about and agree, if possible, a form of orders dealing with the further programming of this matter to hear evidence and submissions on questions of relief and penalty, arising from the findings made in this judgment.
In performing such calculations, the parties are to rely on the following information:
·For the period February to April 2016, the rosters.
·For the period May 2016 to 12 May 2017, the timesheets.
·For the period 15 May 2017 to January 2019, the rosters.

I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .
Associate:
Dated: 8 July 2025

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

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 BY:	JUDGE SYMONS
DATE OF ORDER:	8 JULY 2025