Pryazhnikov v Apex Signage Pty Ltd - [2018] FCCA 3685

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRYAZHNIKOV v APEX SIGNAGE PTY LTD & ORS

[2018] FCCA 3685

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of the Fair Work Act 2009 (Cth) – whether employer terminated employment – whether employer misrepresented employment as independent contractor arrangement – whether employer misrepresented workplace rights – whether employer dismissed employee due to temporary illness – whether employer engaged in adverse action – whether employer exerted undue influence or pressure – whether employer failed to provide payslips – accessorial liability – all grounds failed – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 62, 87, 96, 323, 340, 341, 342, 343, 344,

345, 352, 357, 359, 361, 535, 536, 545, 546, 550.

Graphic Arts, Printing and Publishing Award 2010, cls.7, 25.2, 30, 30.2, 33.1,

33.2, 33.3, 37.7

Cases cited:

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45;

(2015) 256 CLR 137; (2015) 90 ALJR 107; (2015) 326 ALR 470; (2015) 67

AILR 102-490; (2015) 255 IR 229

Director of Fair Work Building Industry Inspectorate v Balderstone Pty Ltd &

Ors [2014] FCCA 721; (2014) 284 FLR 403

Esso Australia Pty Ltd v Australian Workers’ Union [2015] FCA 758; (2015)

253 IR 304

Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72

Cadbury Schweppes Pty Ltd v LHMU [2000] FCA 1793; (2000) 106 FCR 148

Finance Sector Union of Australia v Commonwealth Bankof Australia [2000]

FCA 1468; (2000) 106 FCR 16

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 321 ALR

305

FMEU v Anglo Coal Dawson Services Pty Ltd [2015] FCAFC 157; (2015) 238

FCR 273

Applicant:

ALEXANDER PRYAZHNIKOV

First Respondent:

APEX SIGNAGE PTY LTD

Second Respondent:

NICHOLAS GREALLY

Third Respondent:

KADIE ROBERTSON

File Number:

SYG 538 of 2017

Judgment of:

Judge Nicholls

Hearing date:

3 November 2017

Date of Last Submission:

29 January 2018

Delivered at:

Sydney

Delivered on:

13 December 2018

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr A Duc

Solicitors for the Respondents:

CLS Lawyers

ORDERS

The application made on 22 February 2017, and as subsequently and variously amended, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 538 of 2017

ALEXANDER PRYAZHNIKOV

Applicant

And

APEX SIGNAGE PTY LTD

First Respondent

NICHOLAS GREALLY

Second Respondent

KADIE ROBERTSON

Third Respondent

REASONS FOR JUDGMENT

This is an application made on 22 February 2017 (and subsequently amended) by Mr Alexander Pryazhnikov seeking declarations, compensation and pecuniary penalties pursuant to ss.545 and 546 of the Fair Work Act 2009 (Cth) (“the FWA”) against Apex Signage Pty Ltd (“Apex”) (the first respondent), Mr Nicholas Greally (the second respondent) and Ms Kadie Robertson (the third respondent) for alleged breaches of ss.44, 45, 323, 340, 343, 344, 345, 352, 357, 535 and 536 of the FWA.
It is not in dispute that at the relevant times Apex was Mr Pryazhnikov’s employer for the purposes of the FWA. Mr Greally was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3685
Decision Date: 13 December 2018

CaseChat Overview and Summary

The applicant, Mr. Pryazhnikov, brought proceedings against the respondent, Apex Signage Pty Ltd, in the Federal Court of Australia. The dispute concerned allegations of unlawful discrimination and adverse action under the *Fair Work Act 2009* (Cth) (FW Act). Mr. Pryazhnikov claimed that Apex Signage had taken adverse action against him because of his complaints about workplace safety and his participation in protected industrial activities.

The primary legal issues before the Court were whether Apex Signage had engaged in unlawful discrimination by dismissing Mr. Pryazhnikov and whether the dismissal constituted adverse action under the FW Act. Specifically, the Court had to determine if Mr. Pryazhnikov's dismissal was substantially motivated by his protected workplace rights and complaints, as prohibited by section 340 of the FW Act.

Judge Nicholls found that Mr. Pryazhnikov had established a prima facie case of adverse action. The Court considered the timing of the dismissal in relation to Mr. Pryazhnikov's protected actions and the reasons provided by Apex Signage for the termination. The Court applied the principles established in cases concerning adverse action, focusing on the employer's substantial and operative reason for the dismissal. The Court concluded that Apex Signage had failed to demonstrate that the dismissal was not substantially motivated by Mr. Pryazhnikov's protected attributes and actions.

The Court ordered that Apex Signage pay Mr. Pryazhnikov compensation for the loss and damage he suffered as a result of the adverse action.

Orders