Pryazhnikov v Apex Signage Pty Ltd
[2018] FCCA 3685
•13 December 2018
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 the Managing Director of Apex.
Ms Robertson was added as the third respondent in these proceedings by an order made by the Court on 5 July 2017 following an Application in a Case (“AIC”) made by Mr Pryazhnikov on 12 April 2017. Her involvement in matters that gave rise to the application to the Court is the subject of factual findings made by the Court (see further below).
Before the Court
The parties first came before the Court on 30 March 2017. Mr Pryazhnikov appeared in person and has represented himself for the entirety of these proceedings. The respondents were represented by solicitors, and counsel.
Since the first court date, the parties have appeared before the Court at directions on several occasions and for the hearings of several AICs, all of which were filed by Mr Pryazhnikov. With respect to Mr Pryazhnikov, who, I note again, is not legally represented, this has led to a significant protraction of the proceedings.
In any event, I do note that through his AICs, Mr Pryazhnikov was granted leave to amend his application to the Court (with some limitations, see the Court’s orders of 27 April 2017) and, as noted above, to add Ms Robertson as third respondent. Mr Pryazhnikov filed a Statement of Claim (“SOC”) on 29 April 2017.
Mr Pryazhnikov’s affidavit evidence is as follows:
a)The affidavit of Alexander Pryazhnikov, [occupation not indicated], made on 22 March 2017.
b)The affidavit of Alexander Pryazhnikov, [occupation not indicated], made on 4 May 2017.
c)The affidavit of Alexander Pryazhnikov, [occupation not indicated], made on 22 May 2017.
d)The affidavit of Alexander Pryazhnikov, [occupation not indicated], made on 23 October 2017 [this affidavit was admitted provisionally, subject to further written submissions on admissibility – see further below.]
e)The affidavit of Alexander Pryazhnikov, [occupation not indicated], made on 24 October 2017 [this affidavit was admitted provisionally, subject to further written submissions on admissibility – see further below.]
The respondents’ affidavit evidence is as follows:
a)The affidavit of Kadie Robertson, accountant, made on 9 June 2017 (no objections).
b)The affidavit of Nicholas Greally, Director, made on 9 October 2017.
c)The affidavit of Andre Sasaki, [occupation not indicated], made on 13 October 2017.
The parties’ objections to the affidavit evidence and the disposition of those objections are contained elsewhere in this judgment. I note the respondents filed a document containing a schedule of objections to Mr Pryazhnikov’s evidence. This included over 100 objections. Given that Mr Pryazhnikov was unrepresented, and to allow the hearing to proceed in a reasonably expeditious fashion, the respondents referred the Court to the objections that were “particularly” pressed.
Mr Pryazhnikov, Mr Greally, Ms Robertson and Mr Sasaki gave oral evidence at the final hearing.
Background
As a preliminary point, I note that the parties’ positions differ in many respects regarding the factual circumstances which are said by Mr Pryazhnikov to give rise to the alleged contraventions of the FWA.
The following background is set out to provide some context to the allegations in the application, and are not necessarily findings of fact for the purposes of the consideration in this judgment.
Apex is in the business of designing, printing, manufacturing and installing signage. Mr Pryazhnikov commenced employment with Apex on 17 September 2015 on a casual basis. He was a holder of a 457 working visa. His duties included the “designing of layouts, setting up print files, running the printer and the cutter, trimming, laminating and finishing of the prints” (SOC at [6]).
The parties agree that Mr Pryazhnikov’s employment was covered by the Graphic Arts, Printing and Publishing Award 2010 (“the Award”).
On 23 October 2015 Mr Pryazhnikov and Apex signed a contract of employment (dated 12 October 2015) which provided that Mr Pryazhnikov would become a full time employee (see Mr Greally’s affidavit at annexure “D” (pp. 55-56)). In this employment contract, Mr Pryazhnikov’s position was stated as “Graphic Designer/Production Manager”.
At Mr Pryazhnikov’s request, his employment contract was “updated” and a second contract of employment, dated 27 October 2015, was executed by him on 28 October 2015. This contract stated that Mr Pryazhnikov’s position was “Graphic Designer” (see Mr Greally’s affidavit at annexure “F” (pp. 59-61)). There was also an amendment to clause 1.1 of the contract regarding Mr Pryazhnikov’s working hours. He commenced full time employment on 23 November 2015.
In March 2016 Mr Pryazhnikov and Mr Greally negotiated a further “update” to the terms of Mr Pryazhnikov’s employment contract (“the contract update”) (SOC at [16] – [17] and Response at [16] – [17] filed by Apex on 15 September 2017 (“the Response”)). This “update” included, inter alia, the following:
a)Mr Pryazhnikov’s salary be increased to $70,000 per year which would be applied at an hourly rate of $33.65 (SOC at [16]a).
b)Mr Pryazhnikov would perform up to 5 hours of overtime per week (SOC at [18]).
c)Mr Pryazhnikov would be paid as normal for overtime in excess of 45 hours per week (see the affidavit of Mr Greally at [28] and at annexure “I” (p. 63).
There is some dispute about the actual working hours of Mr Pryazhnikov during 2016, including overtime hours. The parties appear to agree that in August 2016, Mr Greally changed Mr Pryazhnikov’s workings hours (and those of other Apex staff) to commence at 8:00am (rather than 8:30am).
Mr Pryazhnikov requested a formal “update” to his written employment contract at various times from around August to November 2016 (the parties differ on when the requests were made). A formal written update to the employment contract was not provided by the respondents (SOC at [35] and Response at [35]).
On 23 August 2016, while Mr Greally was at a conference, he telephoned an employee of Apex (Mr Sasaki) to check on how a certain job was progressing. Following his conversation, Mr Greally sent an email to Mr Pryazhnikov (see Mr Greally’s affidavit at annexure “K” (p. 66)).
On 30 August 2016, Mr Greally sent a letter to Mr Pryazhnikov setting out matters discussed in a meeting he had with Mr Pryazhnikov the previous day (Mr Greally’s affidavit at annexure “M” (p. 73)).
On 11 October 2016, Mr Pryazhnikov was unwell and so did not attend work. On 13 October 2016 Mr Pryazhnikov took “personal leave” and left work early to “fix a broken window” which “caused his illness”. After Mr Pryazhnikov had left, Mr Greally requested that Mr Pryazhnikov complete a task while he was at home. Mr Pryazhnikov did not complete this task. Mr Pryazhnikov took “personal leave” again on 14 October 2016 and provided a doctor’s certificate. Mr Greally suggested that Mr Pryazhnikov complete some work over the weekend to “catch up” (SOC at [70]).
On 21 October 2016, Mr Pryazhnikov was issued a “warning letter” for, amongst other things, failing to attend a meeting (Mr Greally’s affidavit at annexure “Q” (p. 83)). Mr Pryazhnikov sent a response to the warning letter on the same day by email (Mr Greally’s affidavit at annexure “T” (pp. 85-87)).
Following this letter, Mr Pryazhnikov alleges that “continued pressure for unpaid overtime…erupted in verbal abuse, bullying and direct aggression” towards Mr Pryazhnikov by junior staff, “on the instructions of [Mr Greally]” (SOC at [38]).
On 2 November 2016, a timesheet submitted by Mr Pryazhnikov was rejected by Mr Greally. Following this, Mr Pryazhnikov complained about non-payment of overtime, and after the complaint remained “unactioned”, Mr Pryazhnikov reported this to the police (SOC at [39] – [40]).
Mr Greally recounts that on 3 November 2016 he was confronted by Mr Pryazhnikov at the Apex premises, which culminated in Mr Pryazhnikov “storming out” of the premises and removing his “Apex Signage” t-shirt (Mr Greally’s affidavit at [61]).
Mr Pryazhnikov and Mr Greally corresponded by email later that day (Mr Greally’s affidavit at annexure “W” (pp. 95-100)).
On 4 November 2016, Mr Pryazhnikov attended at Apex’s premises. A discussion between Mr Pryazhnikov and Mr Greally took place with regard to Mr Pryazhnikov’s employment. The parties do not agree on the contents of this discussion.
Mr Pryazhnikov was sent a letter of termination by the respondents (Apex) on 7 November 2016 (SOC at [47] and Response at [47]).
Allegations against the Respondents
Mr Pryazhnikov makes the following allegations against the respondents in his SOC.
One, although it is not entirely clear, I understood Mr Pryazhnikov to claim that the terms of his employment were not in accordance with what is set out in the Award (SOC at [48] – [56]).
Two, that Apex made “misrepresentations” to him regarding the requirement for Mr Pryazhnikov to work overtime (SOC at [57] – [64]).
Three, he identified 14 “workplace rights” which are set out at [65] of the SOC as follows:
“[65] At all material times during his employment with the First Respondent the Applicant had an entitlement to a benefit, a had a role or responsibility under a workplace law or a workplace instrument as follows:
a. the Applicant had the workplace right to make a complaint or inquiry in relation to his employment, being a workplace right within the meaning of section 341(1)(c)(ii) of the FWA (hereafter: ‘First Workplace Right’).
b. the Applicant had the workplace right to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law, being a workplace right within the meaning of section 341(1)(c)(i) of the FWA (hereafter: ‘Second Workplace Right’)
c. the Applicant workplace rights pursuant to the MA000026 Graphic Arts, Printing and Publishing Award 2010 (hereafter: ‘Third Workplace Right’). Please refer to the APPLICATION OF THE AWARD.
d. the Applicant had workplace rights pursuant to s357 of the FWA, being a workplace right to be represented as employee, being a workplace right within the meaning of section 341(1)(a) of the FWA (hereafter: ‘Fourth Workplace Right’)
e. the Applicant had an entitlement to be paid for overtime (whether reasonable or not) at overtime rates under subclauses 33.1(a), 33.2 and 33.3 of the Award, being a workplace right within the meaning of section 341(1)(a) of the FWA (hereafter: ‘Fifth Workplace Right’).
f. the Applicant had workplace rights within the meaning of section 341(1)(a) of the FWA pursuant to s87(2) and s96 of the FWA which is an entitlement to paid personal leave and annual leave on an accrued basis (hereafter: ‘Sixth Workplace Right’).
g. the Applicant had workplace rights pursuant to Clause 7 of the Award, which is an entitlement to be able to genuinely agree to vary terms of the Award without coercion or duress, have the agreement signed and in writing, stating and detailing the application of each term of the award, be able to be better off overall at the time the agreement is made, and be able to terminate the agreement at any time, being a workplace right within the meaning of s341(1)(a) of the FWA (hereafter: ‘Seventh Workplace Right’).
PARTICULARS
Under Clause 7 of the Award, an agreement varying the application of overtime rates and/or penalty rates (hereafter: “IFA”) must:
i. be made genuinely without coercion or duress
ii. result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to
iii. be in writing, name the parties to the agreement and be signed by the employer and the individual employee
iv. state each term of this award that the employer and the individual employee have agreed to vary
v. detail how the application of each term has been varied by agreement between the employer and the individual employee
vi. detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment
h. the Applicant had a workplace right to be able to initiate, or participate in, a process or proceedings of making or terminating an individual flexibility arrangement under The Award within the meaning of s341(2)(g) (hereafter: ‘Eighth Workplace Right’).
i. The Applicant had workplace rights pursuant to s19 of the Work Health and Safety Act 2011 (NSW) whereby an employer has a primary duty of care to provide a safe workplace environment (hereafter: ‘Ninth Workplace Right’);
j. the Applicant had workplace rights pursuant to s323 of the FWA regarding the method and frequency of payment of his salaries and wages and including being paid for overtime and/or penalty rates for working on weekends (hereafter: ‘Tenth Workplace Right’);
k. the Applicant had workplace rights pursuant to s535(2) of the FWA regarding the requirements in relation to records-keeping, including but not limited to the keeping of timesheets in a form prescribed by regulation, reflecting actual hours worked by the Applicant, and payslips reflecting actual number of ordinary and overtime hours worked, actual basis of employment, and actual number of annual and/or sick leave hours taken (hereafter: ‘Eleventh Workplace Right’)
l. the Applicant had workplace rights pursuant to s536(1) and s536(2) of the FWA to receive a payslip within one working day of payment (hereafter: ‘Twelfth Workplace Right’).
[m]. The Applicant had workplace rights pursuant to s62(1)(a) of the FWA, or, further or alternatively, to subclause 30.2(b)(i) of the Award to have his ordinary hours of work not exceed an average of 38 per week, and workplace rights under subclause 30.2(b)(ii) to have his ordinary hours of work for day work not exceed 8.75 hours per day (hereafter: ‘Thirteenth Workplace Right’)
[n]. The Applicant had workplace rights pursuant to s62(2) of the FWA to refuse to work additional hours if they are unreasonable (hereafter: ‘Fourteenth Workplace Right’”)”
My Pryazhnikov asserted that he “exercised” these workplace rights on 12 occasions throughout 2016. These were described in the SOC (at [66]) as follows:
“The Applicant exercised his First Workplace right by making complaints to the Respondents in relation to his employment, workplace rights and entitlements under the Award as follows:
a. Verbally in early 2016, in relation to proposed sham contracting arrangement (Fourth Workplace Right).
b. Verbally on 25 July 2016, in relation to missing payslips and annual and sick leave balances (Sixth, Eleventh, Twelfth Workplace Right).
c. In writing on 23 August 2016, in relation to sham contracting, unreasonable work demands, and unpaid overtime (Fourth, Fifth, Thirteenth, Fourteenth Workplace Rights)
d. Verbally on 29 August 2016, in relation to fatigue, unreasonable work demands, unpaid overtime and Applicant’s rights in relation to IFA (Fifth, Seventh, Eighth, Ninth, Thirteenth and Fourteenth Workplace Rights)
e. In writing on 3 September 2016 in relation to unpaid overtime, the Applicant’s rights in relation to IFA and in response to threats to injure the Applicant in his employment by lowering his rate and imposing overtime obligations on the Applicant (adverse action) (Seventh, Eighth, Thirteenth and Fourteenth Workplace Rights).
f. In writing on 11 September 2016 in relation to unreasonable work demands, unpaid overtime, the Applicant’s rights in relation to IFA and in response to threats to alter the position of the Applicant and injure the Applicant in his employment by lowering his rate and imposing overtime obligations on the Applicant (adverse action) (Seventh, Eighth, Thirteenth and Fourteenth Workplace Rights).
g. In writing on 21 October 2016, in relation to unreasonable work demands.
h. Verbally, on 3 occasions during the week of 24-28 October 2016, in relation to sham contracting, unpaid overtime, bullying (workplace safety), unreasonable work demands (Fourth, Fifth, Ninth, Thirteenth and Fourteenth Workplace Rights).
i. In writing on 30 October 2016, in relation to unreasonable work demands, unpaid overtime, the Applicant’s rights in relation to IFA, and the Applicant’s rights in relation to record-keeping (Fifth, Seventh, Eighth, Eleventh, Thirteenth and Fourteenth Workplace Rights).
j. Verbally in 3 November 2016, in relation to underpayment, unpaid overtime, and the Applicant’s rights in relation to record keeping (Fifth, Tenth, Eleventh, Thirteenth and Fourteenth Workplace Rights)
k. In writing on 3 November 2016, in relation to underpayment, unpaid overtime, bullying (workplace safety), and the Applicant’s rights in relation to record keeping (Ninth, Tenth, Eleventh, Thirteenth and Fourteenth Workplace Rights).
l. In writing on 4 November 2016, in relation to coercion and workplace safety (First, Second and Ninth Workplace Rights).
Four, that the personal leave that he took on 13 and 14 October 2016 was an “operative factor” for his termination (SOC at [70] – [73]).
Five, that the respondents took adverse action against Mr Pryazhnikov, which included threatening to “low[er] his rate [of pay] and impos[e] overtime obligations”, “alte[r] his position”, and to terminate his employment (SOC at [74] – [85]). Further, by restricting Mr Pryazhnikov from attending at the Apex premises. Finally, by terminating his employment.
Six, Mr Pryazhnikov contended that Mr Greally was “involved” in Apex’s conduct and is therefore “liable” pursuant to s.550 of the FWA.
Seven, that the respondents subjected Mr Pryazhnikov to “undue influence and pressure”. This allegation was made with reference to Mr Pryazhnikov’s stated “reliance” on the respondents, due to his being in Australia on a working visa, which provided the basis for his continual lawful stay in Australia. Mr Pryazhnikov contended that the respondents attempted to “contract him out of an entitlement to be paid overtime rates”, by offering him access to a “working vehicle”, and providing him with a credit card linked to Mr Greally’s personal credit card which could be “paid off” through working overtime hours “off the books” (SOC at [86] – [92]).
Eight, that the respondents subjected Mr Pryazhnikov to “coercion” by offering Mr Pryazhnikov a payment in lieu of notice in exchange for his resignation, and a payment for overtime in exchange for his resignation (SOC at [93] – [97]).
Nine, that the respondents “offered payment for overtime via [a] sham contracting arrangement”. Further, that other employees of Apex, who were not Australian nationals, were “misrepresented” to be “independent contractors”, which he claims was a breach by Apex of s.245AC of the Migration Act 1958 (Cth), and s.357 of the FWA. Mr Pryazhnikov alleges that the breach of s.357 “directly affected” him as it had a “substantially detrimental effect on the community and the industry in general” (SOC at [98] – [107]).
Ten, that the respondents breached the Award and the National Employment Standards in the FWA (“NES”) by extending Mr Pryazhnikov’s working hours and failing to provide him with annual leave and “sick leave” entitlements (SOC at [108] – [112]).
Eleven, that Apex failed to provide payslips to Mr Pryazhnikov during certain periods, and that the “basis of employment” was “incorrectly” recorded on all of his payslips. That Mr Pryazhnikov’s rate of pay was “incorrectly” recorded on “some of the payslips”, and that his ordinary hours were recorded as overtime on “some” of the payslips. Further, that during the fortnight ending on 3 November 2016, Apex had not “been recording overtime hours” and “failed to correctly record the annual leave and sick leave hours taken by the Applicant” (SOC at [113] – [118]).
In short, Mr Pryazhnikov alleged that he sought to exercise a (large) number of workplace rights. Further, that the termination of his employment was for proscribed reasons. He also alleges “involvement” on behalf of Mr Greally and Ms Robertson.
The respondents deny that “adverse action” was taken against Mr Pryazhnikov. Further, and in any event, the respondents contend that they did not take any adverse action for a proscribed reason, or for reasons that included a proscribed reason.
The Nature of Mr Pryazhnikov’s Approach to his Case
As noted above, at the final hearing Mr Pryazhnikov appeared in person. The respondents were represented by counsel.
Mr Pryazhnikov’s SOC and his various written submissions (and for that matter his affidavits) filed in these proceedings are detailed, if not minutely and excessively so, about the entire period of his employment with Apex. It may be that Mr Pryazhnikov had some understanding of this approach he has taken in the proceedings. He states in his written submissions of 27 October 2017 (at page 10.3):
“The events of the week that followed are described in finest detail in the applicant’s evidence, and crunched even further in evidence in reply”.
[Emphasis added]
Some of the matters raised by Mr Pryazhnikov in his SOC and written submissions did not appear to have any relevance to the issues arising from the FWA, and those parts of the FWA that Mr Pryazhnikov sought to invoke.
For example, at [36] of the SOC, Mr Pryazhnikov stated:
“In or about October 2016, the proceedings from the business of the First Respondent allowed [the] Second Respondent to buy a residential property in Queensland worth $920,000.”
Whether this statement was motivated by Mr Pryazhnikov’s sense of grievance from what he otherwise alleges the respondents did to him, or by envy, it has no relevance to any of the alleged breaches of the FWA.
It is also an example, albeit an extreme example, of a large part of Mr Pryazhnikov’s case, which is large on assertion, but lacking in a coherent connection to the evidence when viewed objectively, and ultimately to those parts of the FWA on which he says he relies.
Perhaps, understandably, as a layperson, Mr Pryazhnikov has confused the volume of material that he has put before the Court concerning the minutiae of his working life (although there are references to other parts of his life, for example attending the gymnasium), with the proper, and concise, presentation of a legitimate cause under the FWA.
At the hearing Mr Pryazhnikov’s approach had the potential consequence of unfortunately, and unnecessarily, prolonging this matter by the necessity, for example, of requiring further written submissions from the parties. It is of course important that unrepresented applicants be given a reasonable opportunity to present their case. But that does not mean that that should involve an exposition of the daily detail of an applicant’s working life with a respondent employer.
The Admissibility of Certain Evidence
It was necessary, so as not to deprive Mr Pryazhnikov of every opportunity to present his case, to allow him to provisionally argue his case and to reserve judgment on the admissibility of parts of the evidence in light of his explanation as to what he sought to argue, and further written submissions filed after the hearing. At the hearing I made the findings as set out in the attached Schedule to this judgment. As to the affidavits of Mr Pryazhnikov of 23 October 2017 and 24 October 2017 (also taking into account subsequent written submissions), they are not read into evidence for the following reasons.
It is to be noted that orders were made by the Court to facilitate the timely provision of affidavit evidence so that each party had a reasonable opportunity to understand the case against them. Mr Pryazhnikov was told that this was the case. In the current case, the hearing was scheduled for 3 November 2017. Mr Pryazhnikov had until 18 October 2017 to file his affidavit evidence (in reply).
However, it must be said, consistent with Mr Pryazhnikov’s demonstrated conduct to leave no detail (however trivial, or irrelevant to a fact in issue) out of the presentation of his case, filed two affidavits on 24 October 2017 (made on 23 and 24 October 2017). The Court admitted both affidavits provisionally, subject to submissions.
As noted, the respondents objected to leave being granted for the affidavit of 23 October 2017. The “late” presentation of the affidavit was one factor in this objection. However, the four significant elements in the objection were as follows.
One, prejudice to the respondents given what was described as the “impenetrable nature” of the documents, affecting their ability to understand what was actually being asserted ([5] of the respondents’ written submissions of 12 January 2018).
Two, the material in the affidavit was “not strictly” in reply. Further, it was a “mixture of submissions, facts, and assertions”. Its form of “admit/not admit” was more appropriate to responses, or defences, or statements of claim ([6] of the respondents’ written submissions of 12 January 2018).
Three, the material was “dense and impenetrable”. Given that it was not necessarily in reply to the respondent’s assertions, this meant an onerous task, in terms of time and resources, for the respondents to address it ([7] of the respondents’ written submissions of 12 January 2018).
Four, the format of the affidavits was not in accordance with Division Four of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Rule 15.29 of the FCC Rules permits the Court to strike out material that is “inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative”. The affidavit is said to be meet all of these descriptions ([8] of the respondents’ written submissions of 12 January 2018).
The respondents provide examples to support their submission (see [10] of the respondents’ written submissions of 12 January 2018 and see below for [58] of Mr Pryazhnikov’s affidavit of 23 October 2017):
“[10] Another example is paragraph 58, which runs for three pages. This is a mixture of detail (the Applicant was invited to a Sydney Kings basketball game, VIP box), assertion (the Applicant set up a rule that whoever worked on the work table had to clean it), refers to multiple dates (24 October 2016 to 2 November 2016) and allegations that another employee was sabotaging the Zjoosh job). Again, the Respondents could not adequately respond to this paragraph.”
Mr Pryazhnikov’s written submissions (of 29 January 2018) in support of the leave to read his affidavit of 23 October 2017 are nearly five pages of closely typed narrative which itself, in part, reflects the dense and impenetrable nature of his affidavits.
As noted above, the affidavit of 23 October 2017 is not read into evidence.
First, the respondents rely on aspects of the form of the affidavit. That submission is to be accepted. However, given that Mr Pryazhnikov is an unrepresented person, if this had been the only objection, I would not have refused to read the affidavit on form alone.
Second, the affidavit is, as the respondents submit, dense and impenetrable. The level of minute detail can only be described as requiring some microscopic examination to discern relevance to a fact in issue. The respondents’ reference to [58] of the affidavit is an illustration, although not by any means isolated, of this characteristic of this document (Mr Pryazhnikov’s affidavit of 23 October 2017 at [58]):
“In response to paragraph 58, I admit that the hours lodged electronically on 2 November 2016 were true and actual ordinary and overtime hours worked for the business of the first respondent during the previous fortnight. I admit that I kept recording actual hours worked in my notebook.
I admit that I on 24 October 2016, following my training at 5:30 in Dee Why, I came to work on or about 7:30am. I admit that I had an invitation to a Sydney Kings game (VIP box) on the evening of 24 October 2016. I admit that I emailed Mr Greally a quote request that came in from Trico Construction, counting hundreds of strata signs. I admit that Mr Greally told me to process this quote. I admit that in the morning I communicated to Mr Sasaki and Mr Guzman that I can't stay after hours because I want to see the game. I admit that Mr Sasaki was in charge of F45 installation and was communicating with the client. I admit that sometime mid-day, I saw that Mr Sasaki has scheduled F4S on 4:00pm. I admit that the flowing conversation happened between, Mr Sasaki and Mr Guzman:
Me: 'Andre, why did you schedule F45 for 4:00pm? I told you guys that I am going to the Kings game tonight’
Andre: ‘Nick said that it has to be done today no matter what. You'll have to produce it.’
Me: ‘Nick didn't tell me anything. Working hours are till 4:30pm. Don't you think that if you want this job to be produced on a short notice, you have to ask me first - if I'm available after hours or not? And why do you want it printed? What's the point in printing, laminating and cutting white? We have stock colour for that. It can be done in minutes. It's just white’
Mr Guzman: ‘Man what's your fucking problem? Do your fucking job!’
Me: ‘My job is production. I don't understand why you want to spend 2 hours on putting white stripe on a vehicle when you could spend 30 minutes on putting white stripe on a vehicle. I'll cut it from stock vinyl. You can stay here all night if you want, it's your personal choice, but I want to make it to the game with my friends’
I admit that on 25 October 2016 I went to North Rock to finish installation for a van. I admit that I arrived to North Rock on or about 6am. Annexed to this Affidavit as Annexure K are true copies of actual photographs taken on site by me between 6:30am and 7:30am. I admit that in the business of the first respondent, there was a rule introduced by me that whoever works on the work table must make sure the workplace is clean and ready for the next person. Annexed to this Affidavit as Annexure K1 is a true copy of an actual photograph of the workplace downstairs as it was left by Mr Guzman, taken on 25 October at 11:43am. Annexed to this Affidavit as Annexure K2 is is a true copy of an actual photograph of the workplace upstairs as it was left by Mr Sasaki, taken on 26 October 2016. at 8:55am. I admit waste and tools left on both work tables, upstairs and downstairs, has caused a significant drag on my productivity during the week of 24-28 October 2016.
I admit that on 26 October, following my training at 5:30 in Dee Why, I came to work on or about 7:30 am. I admit that on or about mid-day the following conversation happened between me and Mr Sasaki:
Mr Sasaki: ‘There are files for Raine & Horne that need to be set up’
Me: ‘But it is your job. You've been working on it for some time already. I don't know anything about it. It is a big job, it would take me forever to get a grip of it, since you've been already working on it. Besides, Nick asked me to quote on hundreds of strata signs for Trico construction, and that is taking all day’
Mr Sasaki: ‘You know, you should put in some effort sometimes’
Me: ‘Excuse me? Are you saying that I'm not putting enough effort here? My overtime, unlike yours, is not paid. And I contribute loads of it. Andre, I don't appreciate such comments coming from you. Raine & Horne is your job and it has been for two weeks already. If I start doing it I won't be able to finish my jobs on time. Is this what you really want?’
I admit that some time mid-day I tried to log into Xero to find an old quote, and our standard shared password didn't match. I admit that I emailed Mr Greally about this from my work email. I admit that Mr Greally replied in words to the effect: ‘Yeah, I know, something weird. I've been trying to log in too. I guess I need to change the password now’
I admit that on 27 October 2016 I was out surveying cafe signage job at around 9am. I admit that the meeting for this job was scheduled by Mr Greally and he was fully aware of this meeting. I admit that upon my return to the office, I emailed all collected measurement to Mr Greally's email address from my email address. Annexed to this Affidavit as Annexure L are true copies of actual photographs taken during this meeting between 9:30am and and 10am on 27 October 2016.
I admit that on 28 October 2016 I arrived to work at 7:30 am. I admit that on 27 October, following a call from the customer, I went to the meeting on or about 11am. Annexed to this Affidavit as annexure M are true copies of actual photographs taken on site on 28 October 2016 between 11:30am and 12:15pm. I admit that I have taken a lunch break following that meeting. I admit that upon my return to the office on or about 1pm I emailed all job details from that meeting to Mr Greally work email address from my work email address, attaching some of the photographs. I admit that I received and processed the order for Zjoosh on 27 October 2016. I admit that I ordered PVC shapes from plastics by sending a diagram with measurements to Plastix on 27 October 2016. I deny that Mr Sasaki knew of any particulars of this job. I admit I asked Mr Sasaki to bring PVC shapes from Plastix. I admit that PVC shapes that Mr Sasaki brought from Plastix we of exact size and quantity that was requested by me, and these were the actual on only PVC materials that were used later that afternoon to finalise Zjoosh order. I admit that between 27 and 28 of October, the order for Zjoosh delivered by Mr Sasaki was the only known order sent to Plastix and delivered from Plastix. I admit that I picked up PVC shapes with applied adhesive vinyl graphics, or the finalised order for Zjoosh, on 29 October 2016. I admit that I delivered the order in person on 31 October 2016 and that the customer was satisfied with the order.
I admit that on or about 2pm on 28 October 2016 following my request, Mr Sasaki brought PVC shapes ordered from Plastix to the second floor of the factory of the business of the First Respondent. I admit that Mr Sasaki had a total quantity of 112 PVC shapes 3 mm thick each and 15 cm in diameter each in his hands in two stacks as he walked in. I admit that I was working on that bench at that moment. I admit that Mr Sasaki placed both stacks of PVC shapes on the table and a conversation in words to the following effect happened between me and Mr Sasaki:
Mr Sasaki: ‘I am the production manager. Where is the print for Zjoosh?’
Me: ‘Andre, the print is in the queue. The cutter is busy cutting another print anyway. It will be ready in a minute. What’s the problem? Zjoosh job is my job, I only asked you to bring the order because you had the work van and I don’t have my car, and you were in the area.
Mr Sasaki: 'So the print is not ready. Ok. I am taking this order back to Plastix’
Me: ‘Andre, this is sabotage! You are sabotaging my job!’
I admit that following this conversation, Mr Sasaki grabbed on stack of PVC shapes and started walking to the door. I admit that I quickly pushed the second stack of PVC shapes from the table to the floor and the shapes flew all over the floor. I admit saying ‘This will slow you down’. I admit that I immediately ran to my working computer and emailed Mr Greally, in a message in words to the following effect: - urgent! Andre is taking away PVC disks urgently needed for Zjoosh job. He is sabotaging the Zjoosh job!’
I admit that I have never received a reply to this email message from Mr Greally.
I admit that I came back to the work bench room and helped Mr Sasaki to pick up PVC disks from the floor. I admit that Mr Sasaki appeared highly distressed. I admit that at the end of the working day, me and three other employees were working on the bench applying graphics for Zjoosh. Sometime around that time the following conversation happened between me and Mr Guzman:
Me: ‘Francisco, you were asking earlier what was my problem’
Mr Guzman: ‘Yes’
Me: ‘See, my problem is this.. I don't get paid for any overtime I do here. It is illegal. You are getting paid at a lower rate through your ABN, and you and Andre are getting paid double rate for ordinary hours to cover up the violation of your visa work limitation of 20 hours. October is the busiest month for students, and instead of being there and studying, you are stuffing you timesheet here with cheap overtime every night, which is illegal. Now Nick has slapped me with a warning letter because I didn't stay to work for free last Friday like he wanted. This is straightforward bullying. Do you see what my problem is?
I admit that shortly after the conversation with Mr Guzman, I had a conversation with Mr Sasaki in words to the following effect:
Me: ‘I don't know if you heard me, I was just replying to Francisco's question he asked me on Monday- ‘what is my fucking problem' Remember?
Mr Sasaki: ‘Yes’
Me: ‘So here is the problem. You are working here illegally. You are getting paid double rate to dodge your visa restrictions. And you get paid for overtime at a lower rate. Works out for both you and Nick, I get it. Honestly, couldn't care less. But there is a problem. The problem is, I have to stay late and work for free to make sure you don't stuff up. And today you began flipping out on me. Nick will get rid of me, and someone else will come to my place. Could be an Aussie guy. Do you thing that an Aussie guy will be taking this shit from you? He'll just report you to immigration and that will be it’
Mr Sasaki: ‘I didn't even plan to stay in Australia ... Me and my girlfriend ... we just wanted to have a gap year.’
Me: ‘I don't care, man. But look at you. Waging a war! Carrying Zjoosh away! Flipping out like that?’
I admit that Mr Sasaki began crying. I admit saying: ‘It's fine man. It's ok. It's all good’, or to that effect.
I admit that the hours lodged electronically on 2 November 2016 on or about 5pm were true and actual ordinary and overtime hours worked for the business of the first respondent during the previous fortnight. I admit that I did not charge Mr Greally for the hours contributed to the business of the first respondent on Saturday, when I came back to the factory to pick up the order for Zjoosh. I admit that none of the overtime lodged electronically was paid on 3 November 2016. Annexed to this Affidavit as Annexure M1 is are true copies of invoices filed in court following the ‘Greally’ subpoena filed 3 April 2017
Otherwise, I refer to paragraphs 100-113 of my Affidavit sworn on 22.03.2016.”
[Errors in original]
Third, Mr Pryazhnikov proposes that it was the respondents who occasioned the delay which necessitated the “late” filing of the affidavit. In particular, their failure to comply with Court orders and delays with responding to subpoenas.
Even if there were some basis to Mr Pryazhnikov’s assertion in this regard, on his own submission, he states that “the timeframe available to the applicant had shrunk by almost a month” (unnumbered page 3.6 of Mr Pryazhnikov’s written submissions of 29 January 2018). This was still a reasonable period within which to file his evidence, given that Mr Pryazhnikov had instituted the proceedings some eight months prior to the date on which he should have filed his evidence. In any event, this addressed the “late” filing of the affidavit, not the other matters of substance (other than form) raised by the respondents.
Fourth, Mr Pryazhnikov also submits that (see unnumbered page 2.9 of Mr Pryazhnikov’s written submissions of 29 January 2018):
“…it is abundantly obvious that the Applicant, if given another opportunity to re-affirm his evidence and evidence in reply to accommodate the objections of the respondents in case of retrial, would be pressing the very same matters of fact.”
With respect to Mr Pryazhnikov, it is difficult to comprehend what he is seeking to argue here. Is the reference to “retrial” a reference to possibly reopening the final hearing, is it a reference to any appellate process, or something else? This “submission” cannot be meaningfully addressed given its, at best, ambiguous character.
Fifth, Mr Pryazhnikov asserts that (see unnumbered page 2.10 of Mr Pryazhnikov’s written submissions of 29 January 2018):
“…the issue of poor credibility of the Respondent’s evidence is substantial and as in his evidence in reply the Applicant discredits the Respondent’s evidence, this evidence bears a high probative force…”
For the reasons set out elsewhere in the judgment, I do not accept Mr Pryazhnikov’s submission that the respondent’s evidence, and that of the respondents’ witnesses has been discredited. To the contrary, their evidence was not weakened on cross examination (see further below).
It must be said that in this submission, and generally in his approach to his case, Mr Pryazhnikov has assumed that the Court must accept and prefer his evidence, and submissions, simply because he has made them. Mr Pryazhnikov’s subjective belief in the righteousness of his cause does not create the obligation, or compulsion, on the Court to accept his view of relevant events, or the application of them to the relevant law.
Sixth, Mr Pryazhnikov submits that the “evidence” in the affidavit “accommodated” the “majority of the respondents’ objections”. That is not apparent on the face of the document. Again, Mr Pryazhnikov assumes that impenetrable, dense, and not apparently relevant (to a fact in issue) narrative, is sufficient to overcome the essence of the respondents’ objections. It does not.
Seventh, Mr Pryazhnikov makes reference in his written submissions to seeking to “expedite the proceedings” (unnumbered page 3.2 of Mr Pryazhnikov’s written submissions of 29 January 2018). He also submits that the object and purpose of the FCC Rules: “is to assist the just efficient and economical resolution of proceedings” (unnumbered page 4.9 of Mr Pryazhnikov’s written submissions of 21 January 2018).
Mr Pryazhnikov’s presentation of his case, with his failure to clearly articulate the link between the relevant asserted facts and appropriate references to the relevant parts of the statutory regime, with his dense, impenetrable and prolix style of submissions and affidavits, was, in fact, operating counter to any such objectives. Notwithstanding that the affidavit of 23 October 2017 was not admitted into evidence, I had regard to it as submissions, to the extent that parts of it do provide “background” to some of Mr Pryazhnikov’s arguments before the Court.
Mr Pryazhnikov’s affidavit of 24 October 2017 suffers from some of the objections raised by the respondents in relation to his affidavit of 23 October 2017. For example, the objections as to form, and it is argumentative. In essence, it consists of submissions, rather than evidence. However, there is nothing apparent in the document that adds to My Pryazhnikov’s evidence already before the Court, or for that matter, adds to his arguments and submissions otherwise made to the Court both in writing and orally. In this light, this affidavit is not read into evidence. However, I have had regard to the document as submissions, particularly given that because of its format in directly addressing some of the respondents’ evidence, it provides a more focused submission from Mr Pryazhnikov, given the state of the oral and written submissions he has otherwise made.
The Dispute between the Parties as to the Credibility of the Witnesses and Their Evidence
As alluded to above (see [70] – [71]), there is a dispute between the parties as to the view to be taken of the evidence given by each of Mr Sasaki, Ms Robertson, Mr Greally, and Mr Pryazhnikov.
The respondents submit that Mr Sasaki’s evidence should be accepted. They assert he answered questions simply and with relevance. Mr Pryazhnikov submits that Mr Sasaki’s evidence was “so inconsistent, evasive and un-corroborated” that he “was simply coached by the respondents”.
One point, in relation to Mr Sasaki’s evidence, was the subject of dispute between the parties before the Court. Mr Sasaki filed two affidavits in these proceedings. The first is dated 13 October 2017. The second is dated six days later, 19 October 2017. The respondents only sought to read the second affidavit. Why this impugned Mr Sasaki’s evidence was not, ultimately, satisfactorily explained.
Mr Pryazhnikov also seeks to impugn Mr Sasaki’s credibility by submitting that Mr Sasaki was unable to satisfactorily explain, in cross examination, why it took him almost a year to “come forward with such serious allegations” as “a knife attack” ([16] of Mr Pryazhnikov’s written submissions of 8 December 2017).
In his affidavit, Mr Sasaki gave evidence of an incident that he says occurred in a week that Mr Greally was away, and Mr Sasaki was left in charge (see Mr Sasaki’s affidavit at [2] – [7]):
“[2] On 21 October 2016 we had a meeting to go over the jobs for the following week because the Second Respondent was going on annual leave. It was standard practice to have this sort of meeting whenever the Second Respondent would go on leave. During the meeting the Second Respondent said to me words to the following effect:
Nick: ‘Andre, Alex can't be here so I need you to step into the manager's role while I'm away’
[3] I knew what was involved in the management role and I had performed it from time to time while the Applicant was on leave so this was not too much of an issue for me.
[4] On about 28 October 2016 I had collected some materials for a job the Applicant had organised. The materials were plastic discs we had outsourced to a company called Plastix. Once I had got back to work and unpacked the discs I realised that Plastix had made a mistake and I did not think we would be able to use the discs they had cut for the job. I thought we needed to have the discs re-cut by Plastix. I picked up some of the discs and I said:
Me: ‘I need to take these back to Plastix. We can't use these, they're covered in dust.’
[5] As I was turning around to take the discs back to the van, the Applicant hit the discs out of my hand all over the floor. I then bent down and picked them all up, during this time the Applicant said:
Alex: ‘You are trying to sabotage my job, I won't let you’
[6] I was extremely intimidated by the Applicant's behaviour so I went downstairs to try and get away from the Applicant. The Applicant followed me downstairs and continued to yell at me:
Alex: ‘You and Nick are against me. This is bullying. You are trying to make me look bad’
He then cornered me in the downstairs workshop and had a knife in his hand. We normally do have knives but in this instance I wasn't sure what was going to happen. He was very aggressive and as he had just assaulted me I was in fear for my safety.
[7] I tried to avoid the applicant for the rest of the day.”
In cross examination, Mr Pryazhnikov’s question on the matter of the “delay” in reporting the “knife” incident, was to ask why Mr Sasaki waited for a week before reporting it.
The submission now that Mr Sasaki waited for nearly a year does not derive from any evidence given by Mr Sasaki (or anyone else), or questions from Mr Pryazhnikov.
Mr Sasaki explained in cross examination that as Mr Greally was away for the week, he reported to him on his return a week later. Mr Sasaki’s evidence here provided a reasonable explanation for his conduct in this regard.
As set out above, Mr Pryazhnikov was not legally represented before the Court. He conducted the cross examination himself. Some “leeway”, if not considerable “leeway”, was given to Mr Pryazhnikov in this regard.
Nevertheless, what must be said, is that the questioning of Mr Sisaki (and for that matter other witnesses) for the most part, did not appear to have any apparent relevance to a fact in issue. For example, Mr Pryazhnikov asked Mr Sasaki about his migration status, about the plastic wrapping from the “discs” referred to above (at [81]), and why Mr Greally had left him in charge. In short, Mr Pryazhnikov’s questions were consistent with his otherwise demonstrated focus with the minutiae of his working life and in some respects, to impugn the reputation of the respondents’ witnesses so as to support the implication in his arguments that they were people capable of acting “badly” against him. However, his questions did little, if anything, to provide a basis to support his assertions in respect of the alleged breaches of the FWA.
By way of further illustration of Mr Pryazhnikov’s approach, I note in his written submissions (of 8 December 2017 at [15]) he asserts “[b]efore cross examination in court Mr Sasaki for some reason chose to affirm, not swear his evidence”. How this can be said to impugn Mr Sasaki’s evidence, or challenge the efficacy of his evidence, was never explained. Nor is it apparent.
What this also reveals however, is the difficulty in dealing with Mr Pryazhnikov’s submissions and his repeated focus on unexplained, or irrelevant, matters (see further below).
In all, Mr Sasaki’s affidavit evidence was not shaken, or weakened, on cross examination. In particular, and relevantly, his evidence on the “knife incident” was clear. Mr Sasaki’s evidence corroborated that of Mr Greally in material particulars.
Mr Pryazhnikov’s submissions on the evidence of Ms Robertson is as follows ([49] of Mr Pryazhnikov’s written submissions of 29 January 2018):
“Ms Robertson’s answers were at times evasive. When confronted with multiple instances of Payment Summaries lodged from under the Applicant’s name that the Applicant did not recognise, she deposed that ‘it doesn’t mean that they were sent’, or to that effect. She had an opportunity to explain multiple false instances of timesheets and payment summaries, but failed to do so.”
Ms Robertson did not use the words attributed to her now by Mr Pryazhnikov, nor words to that effect. Nor can I see that she otherwise gave such evidence in her affidavit.
In relation to the payment summaries, Ms Robertson gave clear evidence before the Court that without access to the “software”, where the complete records were kept, she was unable to answer Mr Pryazhnikov’s questions about “payment summaries” (see as explanatory background pages 26 to 27, and 101 to 105 of Mr Pryazhnikov’s “affidavit” of 23 October 2017).
Mr Pryazhnikov’s questions, which elicited Ms Robertson’s evidence at the hearing were as follows (taken from the transcript (“T”) of the hearing before the Court): (T104 line 33 to T105 line 18).
“HIS HONOUR: And which part of 101 to 105 do you want to ask your question about?
MR PRYAZHNIKOV: So 104, gross pay, line number 1, $4328?---Yes.
Number – from number 2 to number 5, $47,692?---Yes.
Then number 6, $16,152?---Yes.
Then number 7, $21,407?---Yes.
And number 8, $31,926?---Yes.
So – and these are the instances of payment summaries submitted in – in two years?---Without looking at the software, your Honour, I can’t determine what these are. I can see that the one on 15.12.2016 matches this group certificate that has been provided here. The - - -
So just one matches it – just one?---I don’t know whether it appears that the sum of the two previous are added up to this one.
You were the bookkeeper, that something - - -?---I don’t have the software in front of me, sir.
Okay. So you – you were not aware of these payment summaries that were filed?---There’s only one payment summary that would have been filed.
It would – well, this – this tab is called Payment Summary Audit, so - - -?---Audit
- - -
Audit?--- - - - of events, not actual payment summaries.
Possibly. Thank you. That will be all. Thank you.”
This does not provide any probative basis for Mr Pryazhnikov to now submit that Ms Robertson’s evidence was “evasive”. This submission must be rejected. Her answer that the document to which Mr Pryazhnikov referred was an “audit” document, and not an actual payment summary, was clear.
Mr Pryazhnikov’s submission that she did not “explain multiple false instances of timesheets and payment summaries”, is not available on the evidence. What Mr Pryazhnikov put to her in relation to this line of questioning were audit documents, not the actual payment summaries. Nor did he ever put to her the proposition that the “time sheets and payment summaries “were false”.
In all the circumstances, Ms Robertson’s evidence is to be accepted.
Mr Pryazhnikov’s submissions on Mr Greally’s evidence (in common with his approach generally in these proceedings) were lengthy. However as set out above (see [88]), they set a challenge for the Court to penetrate the irrelevant and minute detail so as to the core assertion of Mr Pryazhnikov’s arguments and complaints that may have relevance to breaches of the Act.
To illustrate, I note the following from Mr Pryazhnikov’s written submissions of 29 January 2018 under the heading of “evidence of Mr Greally” (at [50]):
“…Similarly, one of the pillars of the Respondents’ case during FWC process was that the Applicant was late to work almost on daily basis and that his working hours have started from 8:00 since the beginning of his employment. Yet, with evidence of security alarm logs and circumstantial evidence of gym visit logs, the motive of everyday lateness has completely disappeared from the Respondents’ submissions. Similar thing happened with swearing: allegations of foul language use was a thrusting vector F3A and F8A, yet, when the Applicant adduced evidence demonstrating that foul language was used by the Mr Greally himself, they have abandoned this motive as well...”
It is not necessary to seek to address each sentence of Mr Pryazhnikov’s written submissions as they appear to relate to the evidence of the respondents’ witnesses. Suffice to say, I have sought to extract those elements which may be of benefit to Mr Pryazhnikov’s case and may have some relevance in assisting him to discharge the obligation to make out the factual basis for his case.
First, although it was not entirely made clear as to the reason for pressing this issue in the way that it was raised through his questions in Mr Pryazhnikov’s cross examination, Mr Greally gave evidence that while Mr Pryazhnikov had been employed on the basis of a “Graphic Designer/Production Manager”, this was on the advice of Mr Pryazhnikov’s migration agent.
Initially, Mr Pryazhnikov performed work as a graphic designer because Mr Greally believed he lacked experience to perform the role of production manager “immediately” upon commencement of employment. Mr Greally continued to perform the role of production manager.
What clearly emerged is that the description of Mr Pryazhnikov’s position was altered to accommodate Mr Pryazhnikov’s own migration requirements as advised by his migration agent. The need for two employment contracts was due to the request to change the title of description of Mr Pryazhnikov’s job. Mr Greally’s willingness to accommodate for Mr Pryazhnikov’s migration requirements stands in contrast to Mr Pryazhnikov’s assertions that he was treated in an adverse fashion by the respondents.
It appears Mr Pryazhnikov relied on Mr Greally’s evidence in this regard to submit that “Mr Greally was constantly guessing his evidence: on several occasions” ([50] of Mr Pryazhnikov’s written submissions of 29 January 2018).
If the “employment contracts” matter is said to be one of the “occasions”, then Mr Pryazhnikov’s submission is to be rejected. How Mr Greally’s evidence could be said to have involved “guessing”, when he also is said by Mr Pryazhnikov to have “readily accepted” Mr Pryazhnikov’s “suggestions” was never satisfactorily explained.
In his written submissions, Mr Pryazhnikov also states that “it is unclear how Mr Greally’s admissions of the obvious might help the Respondents’ case” ([51] of Mr Pryazhnikov’s written submissions of 29 January 2018). Conversely, I cannot see that it harms the respondents’ case. Ultimately, what Mr Pryazhnikov did not satisfactorily explain in his submissions was how this was relevant to any of the alleged “adverse actions”, or their relationship to a “workplace right” ([51] of Mr Pryazhnikov’s written submissions of 29 January 2018).
Second, Mr Pryazhnikov submits that Mr Greally had “difficulty explaining which ‘management’ responsibilities, other than unpaid overtime, the Applicant was performing unsatisfactor[ily], or was ‘debating’” ([52] of Mr Pryazhnikov’s written submissions of 29 January 2018).
How “unpaid overtime” in relation to Mr Pryazhnikov could be said to be a “management responsibility” in respect of which Mr Pryazhnikov now asserts that Mr Greally said that he was “performing unsatisfactorily”, was also never satisfactorily explained. Plainly, Mr Pryazhnikov was not in a “management” position in relation to payments made to him by Apex, whether for overtime, or otherwise.
In any event, Mr Greally’s evidence was that although Mr Pryazhnikov did not have the experience to fulfil the management role, he was “developing” certain skills.
It appears that Mr Pryazhnikov’s grievance here is that he asserts that he did have these skills at an earlier time (see T107 line 11 to line 21):
“So there – you employed me as production manager, but you were still performing the duties of production manager?---Yes. Because I – you had no experience.
That is contested in the evidence. I put in my CV, and I won two awards, Australian Sign & Graphics Association, but it doesn’t matter.
HIS HONOUR: Is there a question there, sir.
MR PRYAZHNIKOV: No question there.
HIS HONOUR: Okay. Thank you.”
Even if that were the case, that does not weaken the respondents’ position. Mr Greally expressed his view in his evidence as to Mr Pryazhnikov’s experience. This was based on what Mr Greally also stated in evidence was his own 8 to 10 years’ experience as a production manager, and 13 years in the signage industry.
Third, Mr Pryazhnikov also takes issue with Mr Greally’s evidence in relation to his knowledge of the Award. Mr Greally’s evidence was that he was not aware of the details of the Award.
Mr Pryazhnikov submitted that the Court should reject this “submission” (noting that it was given in evidence). It would appear that Mr Pryazhnikov’s approach here is to argue that Mr Greally was being “evasive” when asked questions about his employment contract by referring to the Award.
Further, it appears that Mr Pryazhnikov has used this matter to explain:
“why he (Mr Greally) had to adduce such a large amount of evidence: the Respondents, akin to gas, were constantly attempting to ‘fill’ vacancies in the narrative of this case with their opinions and inferences, instilling false contexts” [[50] of Mr Pryazhnikov’s written submissions of 29 January 2018].
What can be said about this is that this is not an example of Mr Greally being “evasive” in his evidence. He was asked questions, in cross examination, about his experience in the signage industry, and in a sequence of questions/statements by Mr Pryazhnikov, he was asked about his knowledge of the Award. His answers were responsive to the questions asked.
The “sequence” is as follows (T108 line 39 to T109 line 10):
“At the end of this paragraph you were saying that through your 13 years of experience in the industry, and being employed as production manager at previous companies, you saying that:
I believe my knowledge of the role and its responsibilities is absolute.
?---Yes. That’s correct. So you submit that you have 13 years of experience in the signage industry?---Yes.
So with that knowledge of signage industry spent over MA000026 Award, that’s a very crucial award for this industry, Graphic Arts?---I’m – I’m not sure of – not sure what I was – what awards I was on at previous jobs.
So 13 years you were working in this industry and you have no understanding of what this award is. Is this correct?---No. I do understand the award wages, but I don’t know the category to a T.”
Fourth, Mr Pryazhnikov submits that Mr Greally had “visible difficulty” (in his evidence) in explaining his concerns about Mr Pryazhnikov’s “performance issues” (relating to Mr Pryazhnikov’s work hours and the institution of a “bonus system” to “extend” work hours) ([53] – [54] of Mr Pryazhnikov’s written submissions on 29 January 2018).
Mr Pryazhnikov’s submission was that Mr Greally “could not coherently explain what exactly was this issue”. At best, this appears to be a reference to the matter of the claimed under performance, (on the part of Mr Pryazhnikov) and the “bonus system” ([55] of Mr Pryazhnikov’s written submissions of 29 January 2018).
A number of matters emerge. One, in relation to the complaint that Mr Greally’s evidence was evasive, Mr Greally, properly, was unable to give evidence about matters outside his personal observation or knowledge. For example, in cross examination by Mr Pryazhnikov this exchange took place (T113 line 36 to line 42).
“One of the reasons. All right. So the Frozone job the next day, did it proceed as planned?---Yes, but - - -
So it was finished on time?---Yes, the – the car was left outside with the keys in the ignition.
Did the applicant receive the car from the customer?---I’m not sure. I wasn’t there.”
Two, the following is illustrative of Mr Pryazhnikov’s general approach to cross examination (T114 line 43 to T115 line 7):
“Why didn’t you call earlier?---As I mentioned, I was in New Zealand.
Well, the same time zone?---I was – no, it’s not. I – I wasn’t – I just called the office to make sure everything was okay. I didn’t know the time difference.
So was Mr Sasaki in charge of Frozone job?---No.
But you called the office and you spoke with him about the Frozone job the applicant
- - -?---I - - -
- - - was responsible for?---I asked Mr Sasaki how everything was going and he mentioned that no – no – none of the jobs were ready for the next day.
But they went ahead as planned the next day?---Yes, after someone - - -
So it was - - -?--- - - - stayed back to finish it.
So you’re relying on Mr Sasaki’s opinion about this?---I suppose so, yes.
Thank you. Then, Mr Greally, we just spoke about the extension of working hours. I refer you to paragraph 17. Could you read that, please?
HIS HONOUR: Of his affidavit?
MR PRYAZHNIKOV: Yes?---
I did not discuss an alteration of the work hours of the offer letter prior to signing of the updated letter of offer on 28 October 2015.
Okay. So paragraph number 19, you submit, your firm, that other staff members began complaining to you that the applicant was making too many mistakes and it was making them look bad; right?---Yes, that’s of the opinion of them.
So – but if the applicant was making too many mistakes wouldn’t it make them look good?---No.
I mean, it’s a bit of contradictory statement?---No.
So how was that working? So the applicant was making mistakes and staff were feeling that it makes them look bad. Could you explain - - -“
This is not a basis to say that Mr Greally was evasive. Rather, it illustrates Mr Pryazhnikov’s inability (perhaps understandable as a layperson) to keep his questions focussed on a fact in issue.
Three, contrary to Mr Pryazhnikov’s submission, Mr Greally’s evidence in relation to the matter of complaints he received from other employees about Mr Pryazhnikov’s work was coherent and reasonable. The following speaks for itself (T115 lines 26 to 38):
“MR PRYAZHNIKOV: So you submit, in the number of paragraphs, that there were employees in the past that made complaints about the applicant. Did you ever confront the applicant with these complaints?---No.
Why didn’t you? It was a concern; he was the production manager?---I believe there are always staff that will have different opinions about each other and only if it escalated would I consider them, you know, worthy.
That’s enough.
HIS HONOUR: Let him finish. Sorry, sir, I didn’t hear?---Only if they were very serious would I consider make – making it a larger issue, otherwise I would try and iron out any – any issues myself.”
Four, nor was Mr Greally’s evidence “argumentative”. For example, Mr Pryazhnikov put to Mr Greally in a series of questions that he “extended” the bonus system, and that in an email, he promised Mr Pryazhnikov a bonus for extending his work hours. Mr Greally agreed.
Five, Mr Greally was questioned about Mr Pryazhnikov’s working hours. Mr Pryazhnikov asserted, during his cross examination of Mr Greally, that (T117 line 44):
“…there is evidence and security alarm clocks that confirmed that Mr Pryazhnikov was staying late on almost a daily basis”.
[Mr Pryazhnikov referred to himself in the third person]
This was, apparently, a reference to what Mr Pryazhnikov had stated in his affidavit of 23 October 2017 (referred to here as background to understand what transpired in the following exchange before the Court) (T118 at lines 44 to 46):
“But I came to work at – well, I mean, the line is there. Right. I opened it - - -?---It doesn’t mean that you were working.
Were you present there? Do you know that I wasn’t working?---I would have been at work by 7.30 as usual.”
However, this must be understood in context: (T118 line 16 to T120 line 8).
“MR PRYAZHNIKOV: So just quickly go through those pages and see when the alarm was charged – what was the word – set by the applicant at the end of the working hours and would you confirm that there were instances of the applicant staying late, according to this alarm schedule?
MR DUC: Objection. Perhaps the applicant to take us to the exact entries. I mean, we’ve all seen - - -
MR PRYAZHNIKOV: And I’m quite – it’s to save us time. Yes.
HIS HONOUR: Yes, I think you need a copy, sir.
MR PRYAZHNIKOV: Yes.
HIS HONOUR: Yes.
MR PRYAZHNIKOV: All right. Thanks.
HIS HONOUR: Okay. So take the witness to what specific – what – the page and where on the page.
MR PRYAZHNIKOV: Okay 42, 28 October, disarmed at 7.15?---Yes.
So that’s 45 minutes earlier than start working hours of the applicant?---That was because you requested to go – to use our shower after you had been to the gym.
But I came to work at – well, I mean, the line is there. Right. I opened it - - -?---It doesn’t mean that you were working.
Were you present there? Do you know that I wasn’t working?---I would have been at work by 7.30 as usual.
So you believe that I just took a shower and wasn’t working? Is it your belief?---Yes.
Okay. That’s – all right. So after the shower, working.
HIS HONOUR: Well, is that a question, sir?
MR PRYAZHNIKOV: Just moving onto the next line, 27 October, 8.27 pm?---That’s when they try and call you and said, ‘Please call Andre.’
That’s correct. My apologies. That – sorry. Okay. Then 11 October, page 46, 8.32 pm:
Armed. User: Alexander Pryazhnikov.
?---Sorry, 8 October?
11 October?---11 October. I believe that was the day you were off sick.
And – well, I’m sorry, I don’t understand. So I was sick, but I still 20 finished work at 8.32?---You must have – you may have come back to work; I’m not sure.
That didn’t happen.
HIS HONOUR: Well, is that – are you putting it to the witness, sir? You need to – if you make – you can’t make statements.
MR PRYAZHNIKOV: Yes.
HIS HONOUR: If you want to put it to him, put it and let’s see what he says.
MR PRYAZHNIKOV: Okay. Okay then, again - - -
HIS HONOUR: Well, sir, are you going to or you’re not? You’re not?
MR PRYAZHNIKOV: No, I’m not going to.
HIS HONOUR: Okay. Thank you.
MR PRYAZHNIKOV: Yes. I will address the sickness later.
HIS HONOUR: Well, you will have to – it will have to derive from the evidence.
MR PRYAZHNIKOV: Yes, yes, there is evidence about actual hours and days when I was sick, so - - -
HIS HONOUR: Yes, but if you’re going to rely on something and you haven’t put it to this witness, there are difficulties in doing that, okay?
MR PRYAZHNIKOV: Yes, I understand.
HIS HONOUR: So you may want to think about putting it to the witness, giving him the opportunity and then you can tell me about any conflicting evidence, but if you don’t put it to him there are principles that apply here.”
Again, it must be emphasised that Mr Pryazhnikov is not a lawyer. However, his attack on the claimed state of Mr Greally’s evidence must be seen in light of the state of the questioning to which he was subjected.
Six, specifically on the question of Mr Pryazhnikov’s work performance, the following exchange took place in cross examination (T127 line 34 to T128 at line 10)”
“What were the performance issues, other than the requirement to work overtime, that were allegedly discussed during that meeting?---Sorry. Can you simplify the question?
What were the performance issues you discussed with the applicant during that meeting, 29 August?---Ensuring that jobs were done so that everyone got to go home on time. So that included scheduling the jobs, making sure they were done on time and – so that customers didn’t get let down and people didn’t have to work back.
And if those activities were not finished on time, that would require the applicant to stay late and work, contribute unpaid working hours?---There was ample time to get the jobs ready. It was just poor management that resulted in - - -
So you’re saying - - -?--- - - - any overtime.
HIS HONOUR: Well, let him finish.
Finish up, sir?---It was just poor management that resulted in overtime, not a workload.
MR PRYAZHNIKOV: Okay. Poor management of applicant’s own time. So he wasn’t managing his own time properly and was staying back to work late to finish all the jobs?---Yes.
He was just slow. Right?---Yes.”
Plainly, before the Court, Mr Pryazhnikov disputed Mr Greally’s evidence that his work performance was poor and that this was, in part, due to his poor time management. However, simply because he disagrees with Mr Greally is not a sufficient basis to impugn Mr Greally’s evidence.
On balance, Mr Greally agreed with some propositions that Mr Pryazhnikov “put” to him, and gave clear evidence in refuting others. Whose evidence is to be preferred is dealt with below in addressing each of the specific matters raised by Mr Pryazhnikov.
Matters in Dispute
The cross-examination of Mr Pryazhnikov by the respondents’ counsel, in light of his various assertions, also raises a number of matters which provides context, and on most issues the basis, for the disposition of the application before the Court.
A feature of the respondents’ submissions however, is that they (unlike Mr Pryazhnikov with the respondents’ evidence), have not sought to impugn Mr Pryazhnikov’s credibility, but rather, to focus on a number of issues raised by Mr Pryazhnikov in his SOC, and affidavits, and seek to address those issues.
One, the respondents submit that the evidence shows Mr Pryazhnikov was “warned” about his conduct and work performance. This included not attending at a production meeting, constantly using his mobile phone, at work, for private calls, leaving work early, and constantly “debating” the duties and role of his employment ([38] of the respondents’ written submissions of 12 December 2018).
In cross-examination, Mr Pryazhnikov denied this occurred while he was employed and stated that this only occurred “retrospectively”. That is, that these matters were raised after the events of 3 November 2016.
Mr Greally’s relevant affidavit evidence is as follows. In the weeks following Mr Pryazhnikov’s commencement of work, Mr Greally began receiving complaints from other staff members that Mr Pryazhnikov was making “too many mistakes”. Mr Greally stated he observed Mr Pryazhnikov’s work, and in his view, he was “doing his job well” (I note that at this stage, this was not the production manager role). His evidence was that “some mistakes were only to be expected” with a new staff member (see [19] of his affidavit).
However, towards the end of 2015, an employee of some years standing became “increasingly frustrated” with Mr Pryazhnikov, and there were a “few altercations” between them, involving verbal abuse. The relationship between these two employees continued to deteriorate. Mr Greally tried to “smooth things over between them” (see [20] of his affidavit).
In early 2016, Mr Greally was still performing the duties of production manager. By March 2016, Mr Pryazhnikov was said to have displayed capability in most technical aspects of his work, but Mr Greally had “concerns surrounding his work ethic and dealing with others” (see [25] of his affidavit).
Mr Greally’s affidavit evidence on communications between himself and Mr Pryazhnikov at this time regarding Mr Pryazhnikov’s position is as follows ([26] – [28] of his affidavit):
“[26] The Applicant and l had had conversations previously about him being late on a regular basis and what appeared to me to be excessive mobile phone usage and punctuality at work but my principal concern was surrounding how the Applicant would respond to the extra responsibility. Around this time the Applicant and I had a conversation to the following effect:
Alex: ‘I believe it’s time that my salary needs to be increased as agreed. I believe I've proven myself and it's been 6 months since I've started’
Me: ‘I agree with you but I would like you to be working more in your role of Production Manager as I am still more or less doing that job. Making sure that the jobs get out on time and that the other staff are working well are the manager's responsibility, 1 would like you to have that responsibility’
Alex: ‘I believe I'm capable of achieving all those things’
Me: ‘This would mean getting through the scheduled jobs during working hours so we have to keep the guys on for as little overtime as possible. If this means you end up staying back a bit extra each day in order to make things run smoothly then so be it, I don't want you to charge us overtime for that. That is just part of the manager's responsibilities the increase in pay is more than fair for the extra responsibilities and there will be quarterly bonuses based on performance’
Alex: ‘Yes, reasonable overtime seems fair for the increased salary’
Me: If something comes up and I need you to stay back longer than an hour or so then we will calculate overtime as usual and we can cap the amount of overtime included in your salary at 5 hours a week. If you are needing to stay back that much to manage the regular work load then we need to talk about how we can manage things better.
[27] Following the conversation set out in paragraph 26 above the Applicant appeared to be enthusiastic. We reached an agreement on the following terms:
a. The Applicant's hourly rate was increased to $33.65 to reflect a base salary of $70,000 p.a. calculated on a 40 hour week;
b. The Applicant would not be paid for small amounts of incidental overtime up to a maximum of five unpaid hours per week because this additional work was accounted by the wage increase referred to in subparagraph (a) above; and
c. Significant overtime of over five hours per week would be paid in accordance the applicant's written contract of employment.
[28] On 23 March 2016 the Applicant confirmed the agreement outlined in the preceding paragraph via email. Annexed to this affidavit and marked with a letter "I" is a true copy of that email exchange.”
Mr Greally gave evidence of further complaints about the difficulty of working with Mr Pryazhnikov, including complaints from customers (see his affidavit at [37] and [56]). [I note that the reference to “2017” at [56] is, in context, a mistaken reference to “2016”].
Mr Pryazhnikov agreed in his evidence that he received a letter that was critical of some aspects of his work (a “warning”) on 21 October 2016 (that is, before 3 November 2016). That letter is at annexure “Q” to Mr Greally’s affidavit. It is in the following terms:
Dear Alex,
I am writing to you about your attendance to the responsibilities of Production Manager here at Apex Signage.
On 29th August 2016, we had a meeting outlining your responsibilities as Production Manager here at Apex Signage. We outlined your my expectations, one of which includes that you have a lot more responsibilities than a regular staff member. I am yet to see any improvement in this department, in fact I have seen a decline.
As you know, tomorrow I am off on annual leave and we scheduled an important Production meeting before I left. You skipped this meeting, leaving nothing planned for the incoming week. I now have to organise everything myself with other staff members. This is becoming a regular occurance, in which 1 am left doing your job at night upon realising it hasn't been done during the day.
From here I would like you to improve your care and responsibility at Apex Signage. You are the second in charge, yet the first to leave most days, lumping the management onto myself and other staff members junior to you. I want to see a drastic improvement in this department if you would like to keep your title of Production Manager.
In this warning I will also mention your private mobile phone use. We have had countless discussions regarding this and I have caught you using your private mobile phone on countless occassions. You have been verbally warned numerous times, now you have a written warning outlining this.
This is your first warning letter. Your employment may be terminated if your responsibility and care towards your employment does not improve in 3 months time, by January 21st 2017.
I propose we meet again on 21st November to review your progress. Please let me know if this time is convenient for you. If you wish to respond to this formal warning letter please see me or reply in writing.”
[Errors in original]
Mr Greally also gave evidence about instances where concerns were raised with Mr Pryazhnikov about his performance (see his affidavit at [35] – [36] and [42] – [46]):
“[35] On several occasions, I overheard the Applicant arguing with customers on the phone. On one occasion, I heard the Applicant arguing about a spelling mistake, instead of a simple correction it turned into an argument about whose fault it was. I was unhappy with the tone the Applicant had taken with the customer and l recall requesting that the Applicant be more polite when dealing with customers.
[36] By about mid 2016 it was becoming apparent that the Applicant was struggling to communicate effectively with other staff of the First Respondent. Arguments between the Applicant and other staff were becoming more and more common. On one occasion in about in or about August 2016, Matthew Femia, the most junior person at Apex Signage at the time and a first year apprentice approached me and said words to the following effect:
Matt: ‘I don’t enjoy being around Alex. I cannot approach Alex to ask any questions about the work and I’m too scared to come to him when I make mistakes because he yells at me and makes it personal.’
…
[42] On 27 August 2016, l checked through Service M8, our job management system and saw tasks written by the Applicant for other staff. These tasks were rude, blunt and had no politeness to them. I wrote to the Applicant about the tone he used when allocating jobs. Annexed to this affidavit and marked with a letter L is a true copy of that email.
[43] During July and August 2016 it had become a regular occurrence that the Applicant would attempt to debate the scope of his responsibilities with me. As the manager of a team in a small business I expected the Applicant to contribute in all aspects of the business as required. The Applicant said that he was not required to perform certain tasks within the business because they were not specified in his contract or that they were not jobs typically performed by a ‘production manager’. I found these arguments tedious and frustrating.
[44] On 29 August 2016, I had a meeting with the Applicant to outline his responsibilities and find a way we could improve his performance. Most of this was a meeting to try and get the production sped up and more organised so that no one had to work any more hours than they were meant to. This led to another discussion regarding what the applicant's responsibilities in the business were. I said words to the Applicant words to the following effect:
Me: ‘Alex, we cannot keep having this conversation. I need you to be flexible and respond to my instructions without questioning me at every turn. You are in charge of a team and you need to be responsible for all aspect of that team. Maybe this isn't the role you want and we can accommodate that if that's what you want but that it not the job you applied for. You are very capable and efficient in the technical aspects of your work but I need you to focus more on the management aspect of your job if you want to stay on as the team's manager.’
Alex: ‘Nick, the production manager is only in charge of production tasks within the business. I shouldn't be in charge of supply and installation as well. Those are the responsibilities of the Operations Manager. I know a lot about this because my friend specialises in management and he told me what the responsibilities of a Production Manager are.’
Me: ‘In business of this size we don't specialise like that. You are the team's manager and you need to manage all aspects of the team. Production manager is just a title. I have nearly 10 years' experience in this role and I know the responsibilities back to front. With respect, you only have a year or two experience in signage and have only worked in a larger company so things may have worked differently there. I will not discuss these responsibilities any more, I outline what your responsibilities are.’
[45] On 30 August 2016 I wrote to the Applicant setting out some of the matters discussed in the 29 August meeting. Annexed to this affidavit and marked with a letter "M" is a true copy of that email.
[46] The events set out in the preceding paragraphs culminated in a chain of email correspondence between the Applicant and I beginning 3 September 2016. Annexed to this Affidavit and marked "N" is a true copy of that email chain.”
Again, these series of complaints were not addressed in Mr Pryazhnikov’s written submissions as a discrete item, as they were pleaded in the SOC. Rather, it appears that aspects of these have been folded into various, and disparate, submissions made by Mr Pryazhnikov.
It is not for the Court to make out the factual basis of Mr Pryazhnikov’s case for him. As set out elsewhere in this judgment, Mr Pryazhnikov’s approach to the prosecution of his case has been to make a large number of assertions, and file affidavits and written submissions of some considerable detail. The difficulty is that the affidavits and submissions do not readily lend themselves to the matters as pleaded. It is not for the Court to seek, and divine, relevant meaning, and any possible relevance to the SOC from the mass of material provided.
At best, and in any event, this series of allegations in the SOC again appears to be a part of, or linked to, the “overtime” issue (see at [358] above).
As set out above, Mr Pryazhnikov and Mr Greally were in dispute about the issue of overtime, which included, in part, the assertion of the extension of, and in some aspects, reduction of, work hours. The difficulty here is that Mr Pryazhnikov has not identified which payslips contain “errors”, or have been “incorrectly” produced. In that light this is another example of a general complaint in the SOC unsupported by any satisfactory evidence such that it can be said that Mr Pryazhnikov has established the factual basis for his complaint.
Section 323 of the Act
Eleventh, in his SOC Mr Pryazhnikov makes a bare reference to s.323 as part of his “list” of sections of the Act which the SOC asserts were “breached” by the respondents. The SOC does not provide any “particulars” from which the nature of the complaint may be discerned.
Section 323 of the Act is concerned with the method and frequency by which an employer must make certain payments to an employee. No obvious reference is made to this in Mr Pryazhnikov’s submissions. In the circumstances it cannot be said that Mr Pryazhnikov has established the factual basis for any such complaint.
Other matters
A number of other matters were not apparently set out in the SOC, but emerged in Mr Pryazhnikov’s submissions.
Impolite Behaviour, Mobile Phone Use and Knife Wielding Attack
First, in his written submissions (of 8 December 2017) Mr Pryazhnikov makes certain submissions under the heading of: “Impolite behaviour, mobile phone use, and knife wielding attack”. These submissions appeared to seek to take issue with certain evidence given by Mr Greally in his affidavit of 9 October 2017. It is not clear to what part of the SOC Mr Pryazhnikov intended these submissions to relate.
In his evidence, Mr Greally outlined complaints about Mr Pryazhnikov’s behaviour from other employees and customers of Apex. He gave evidence of other aspects of Mr Pryazhnikov’s behaviour and conduct at work including his continual use of his mobile phone for personal reasons, lateness to work, his propensity to be argumentative, and rude (and this behaviour extended to dealings with customers).
Mr Greally also gave evidence drawn from what he was told about an incident involving Mr Sasaki, which Mr Sasaki believed was an “assault”. As set out above, Mr Sasaki gave evidence that Mr Pryazhnikov had “cornered” him in the workshop, and had a “knife in his hand”. Further, that Mr Pryazhnikov was “very aggressive” and that he was “extremely intimidated” by him (Mr Sasaki’s affidavit at [6]).
Mr Pryazhnikov’s submissions on this issue can be understood as falling within the following broad categories.
One, he received no “warnings” about concerns surrounding his conduct towards other Apex employees until the “warning letter” of 21 October 2016. It is clear that Mr Pryazhnikov’s submissions proceed from the basis that each and every concern on the part of his employer needed to be formally documented, with detail, and put to him in writing. In essence, he submits there was no basis to these concerns. Had there been, he would have been provided with “details” (see for example [3] under “C” of Mr Pryazhnikov’s written submissions of 8 December 2017).
On the evidence, it is clear that the respondents did not adopt the process contended for by Mr Pryazhnikov now. That is, until the letter of 21 October 2016. Rather, Mr Greally’s evidence, and to some extent that of Mr Sasaki, reveals that the approach was to seek to deal with the concerns about Mr Pryazhnikov in a more conciliatory and informal fashion.
For example, Mr Greally gave evidence that he overheard Mr Pryazhnikov have an argument over the telephone about a “simple spelling mistake”. Instead of correcting the problem, Mr Pryazhnikov argued with the customer and used a tone with which Mr Greally was unhappy. Mr Greally gave evidence that he simply requested “that the applicant be more polite when dealing with customers” (Mr Greally’s affidavit at [35]).
Mr Greally’s evidence is that he recognised that Mr Pryazhnikov had technical competence. On one occasion, Mr Pryazhnikov was given a $500 bonus. His evidence was clear that the concerns with Mr Pryazhnikov mainly revolved around his relationship with others, and his attitude to work.
It was not unreasonable for Mr Greally to seek to address his concerns in a “low-key” way, and to attempt to persuade Mr Pryazhnikov to adopt a different behaviour. The “detailed warnings” approach advocated by Mr Pryazhnikov now, could, if done at an early stage of his employment, be perceived as being confrontational, and inimical to the running of what is, after all, a small business.
Two, Mr Pryazhnikov is highly critical of Mr Sasaki’s evidence, and in particular, what he says were “omissions”, and lack of detail, in his “reports” (in context, reports to Mr Greally about Mr Pryazhnikov’s behaviour while Mr Greally was absent). Further, Mr Pryazhnikov alleges that Mr Sasaki, and another employee (Mr Guzman), bullied him, and he gave a “detailed account of the incident” (that is, the knife incident) ([8] of unnumbered page 12 of Mr Pryazhnikov’s written submissions of 8 December 2017).
As set out elsewhere in this judgment (see [78] – [89]), there is no reason not to accept Mr Sasaki’s evidence, both in general, and specifically with reference to the knife incident. Mr Sasaki’s evidence before the Court was clear, albeit exhibiting some nervousness (while being cross-examined by Mr Pryazhnikov), cogent and intelligible. The nervousness was consistent with his evidence that while working with Mr Pryazhnikov, he was “extremely intimidated” by him.
In essence, in response, Mr Pryazhnikov’s evidence, and submissions, were not to directly point to any weaknesses in Mr Sasaki’s evidence, but to seek to portray himself as the “innocent victim” of what he has described in submissions before the Court as “Production manager gone mad”.
Mr Pryazhnikov’s argument was that the respondents created a “narrative concocted and fabricated by the respondent after-the-fact” ([18] of “C” of the written submissions of 8 December 2017). The reference to “after-the-fact” appears to be a reference to statements made by the respondents during proceedings before the Fair Work Commission).
In any event, those allegations are not directly pleaded in Mr Pryazhnikov’s SOC. They appear to have emerged in submissions. The submissions do not appear to link this suite of matters to any breach of the FWA, adverse action, or workplace right said to have been held by Mr Pryazhnikov. Therefore, they do not assist Mr Pryazhnikov’s case.
Accessorial Liability: Ms Robertson
Second, in his written submissions (of 8 December 2017) Mr Pryazhnikov seeks to address what he describes as “Matters dealing with the third respondent”. It would appear the purpose of these submissions is to seek to argue that Ms Robertson was accessorily liable (pursuant to s.550 of the FWA) for some of the contraventions as alleged against the first and second respondents.
It is not necessary to repeat all of these matters as set out above. However, the specific focus on Ms Robertson was on the claim by Mr Pryazhnikov of Apex’s failure to provide his payslips to him, and Ms Robertson’s role in the “sick leave/annual leave” issue.
Ms Robertson provided accounting services to Apex. She was not employed by the first, or second, respondent. Her services involved the preparation of financial statements, tax returns and business activity statements (see Ms Robertson’s affidavit at [5]).
Her involvement was, as she described it, as a “favour” to Mr Greally (her partner). She also recorded the “payroll” in a particular accounting software system. This also involved generation of fortnightly payslips. She relied on information provided by Mr Greally for this task. She played no other role in the conduct of the business of Apex (Ms Robertson’s affidavit at [7]).
On the evidence (Mr Pryazhnikov did not proffer any evidence to the contrary), I accept that Ms Robertson did not have direct, or regular, contact with the employees of Apex. On the occasions when she would answer inquiries about specific questions on payroll matters this was done through Mr Greally. In short, Ms Robertson’s involvement in Apex’s affairs was limited. Further, given what is set out above none of the contraventions for which Ms Robertson was said to be accessorily liable are made out, then the case against Ms Robertson cannot succeed.
I pause here to note that Mr Pryazhnikov applied for, and vigorously pressed, that Ms Robertson be added as a party to these proceedings. Given that Mr Pryazhnikov was legally unrepresented, the Court did not want to deprive him of any opportunity to properly prosecute his case. Ms Robertson was added as the third respondent for this reason.
However, having given him that opportunity, it is clear, in light of the evidence, the lack of reasonable cause for the claims against her, and importantly, his failure to proffer any evidence to rebut Ms Robertson’s evidence as to her involvement in the affairs of Apex, that ultimately Mr Pryazhnikov’s application to add her as a respondent in these proceedings can only be seen as vexatious and without reasonable cause. (See also the change in the temporal focus of this complaint at [404] below).
In the current case, Mr Pryazhnikov’s application to include Ms Robertson as the third respondent was unreasonable. He would have, or should have, reasonably known, given in particular that Apex was a small business, that Ms Robertson’s involvement was limited. What remains is that his application to add her as a party was done for the improper purpose of seeking to involve her in this case simply because of her relationship with Mr Greally.
Importantly, if Mr Pryazhnikov wanted evidence from Ms Robertson he could have subpoenaed her as a witness. In any event, there was nothing that Ms Robertson contributed to these proceedings that could not have been obtained from Mr Greally, or the records of Apex.
Payslips, and Annual Leave/Sick Leave
In this light also, it is to the evidence of Mr Greally that initial attention must focus in dealing with Mr Pryazhnikov’s complaint that he did not receive payslips. At [12] of his affidavit, Mr Greally stated:
“Payslips were provided to the applicant via his work email address…Initially the payslips were provided from my work email address and later, from 17 December 2015 they were sent out as a function of my accounting software – ‘xero’. Attached to this affidavit and marked “C” are copies of the payslips sent to the applicant throughout his employment with the First Respondent.”
Mr Greally was cross examined extensively by Mr Pryazhnikov but no specific questions were asked about the matters set out at [12] of his affidavit. There is no reason not to accept that evidence. Further, that evidence is corroborated by Ms Robertson’s unchallenged evidence.
The complaint concerning “annual leave/sick leave”, as noted above, is also not made out. Mrs Robertson’s evidence is as follows ([10] – [11] of her affidavit):
“[10] Leave accruals in respect of the first respondent's employees are calculated automatically by Xero based on the amount of normal hours worked each week.
[11] I am aware of two occasions in June and August of 2015 where the applicant took time off work in excess of his accrued annual leave. The applicant was paid for this time as personal leave and the applicants personal or "sick" leave balance was adjusted accordingly.”
Ms Robertson was also cross examined by Mr Pryazhnikov. There was nothing arising from that cross examination to cause me not to accept Ms Robertson’s evidence. In short, on the evidence, Mr Pryazhnikov was provided with payslips, as they became available.
In his written submissions of 8 December 2017, Mr Pryazhnikov’s complaints appear to have shifted in their temporal focus. Here, the complaint about payslips is that he “requested” Ms Robertson, through her solicitors, to give him his payslips. Further, that this occurred “numerous” times from December 2016. That is, after his employment at Apex had ceased.
The explanation for this is that his “email and his Xero account were wiped out shortly after the Applicant’s termination” ([4] of unnumbered page 17 of Mr Pryazhnikov’s written submissions of 8 December 2017). That may well have been the case.
But it is difficult to see how that can constitute some breach of the FWA in circumstances where, on the only evidence available to the Court, at the relevant times, the payslips were created and sent to Mr Pryazhnikov as they became available.
As to the “annual leave/sick leave” matter in the same submissions, Mr Pryazhnikov’s complaint is to dispute the relevant calculations as they were made available in proceedings before the Fair Work Commission.
Ms Robertson gave evidence that on the two occasions of which she was aware (June and August 2015), Mr Pryazhnikov was absent from work at a time when he had no available accrued annual leave. He was paid for that time, and his “sick” leave balance was adjusted accordingly.
The respondents raised this point in their written submissions of 12 January 2018 (see [35] of those submissions). Mr Pryazhnikov’s subsequent written submissions of 29 January 2018 did not directly seek to refute this. In any event, on the evidence, Mr Pryazhnikov appeared to accept this arrangement at the relevant time (“Cool, thanks” from his “affidavit” of 23 October 2017 at page 24). I note further that Mr Pryazhnikov’s submission is confused. The evidence is he was “short” on annual leave so was “paid” in “sick leave”. The submission asserts the opposite. In all, this complaint is not made out
Termination of Employment
As noted above, Mr Pryazhnikov was sent a letter of termination on 7 November 2016 (“the termination letter”). Its terms are set out above (see [139]).
In the SOC, Mr Pryazhnikov “pleaded” that the termination of his employment by Apex was adverse action within the meaning of s.342(2)(b) of the FWA:
“342 Meaning of Adverse Action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
…
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.”
He asserts that this “adverse action” was taken because he had a workplace right, which he exercised by making complaints and inquiries about his employment, which included allegations of breaches of the FWA (with reference also to s.340(1)(a) of the FWA).
As set out elsewhere in this judgment, Mr Pryazhnikov’s written submissions are long and detailed summaries of his work history with Apex and, it must be said, his subjective perspective of various events.
At best, in relation to the termination of employment, Mr Pryazhnikov’s argument appears to be as follows. The respondents (and others) engaged in various conduct that was adverse to Mr Pryazhnikov’s work rights. He complained. This resulted in (possibly continuing) bullying, coercion, undue pressure and the like. This also included the period after the events of 3 November 2016, and culminating in the sending of the letter of termination of employment. This was the reason for his termination.
In their written submissions of 31 October 2017, the respondents submit that the question of whether Mr Pryazhnikov was subjected to adverse action follows upon Mr Pryazhnikov establishing the elements (in a factual sense) of the general protections under the FWA on which he seeks to rely.
In his written submissions of 8 December 2017, Mr Pryazhnikov made no reference to this. In their subsequent written submissions of 12 January 2018, the respondents repeated this submission. In his written submissions of 29 January 2018 in reply (at [57]) Mr Pryazhnikov merely states in response: “So they will be”. Presumably, at best, this is an expression of his belief that he has established the elements of each general protection he seeks to rely upon.
In his written submissions of 8 December 2017 (as referred to above) Mr Pryazhnikov referred to the “management narrative”. For immediate purposes however, it is Mr Pryazhnikov‘s “narrative” to which attention must be given.
Mr Pryazhnikov’s approach to the prosecution of this matter can, reasonably, on the evidence presented, be characterised as referring to a long list of statutory provisions of the FWA, and then through his affidavits and submissions, provide a personal, and to some extent self-serving, perspective of the minutiae of his employment with Apex, his dealings with Mr Greally, and others, and the termination of that employment.
Section 361 of the FWA is in the following terms:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
Mr Pryazhnikov’s affidavits and submissions have proceeded from the proposition that his case should succeed simply on the basis that he has set out and referred to numerous sections of the FWA and made assertions about general protections under the FWA (both in the affidavits and in written submissions), which, simply because they are alleged, or uttered, by Mr Pryazhnikov, must be accepted by the Court. The words “So they will be”, in context, derive meaning when viewed in this light.
Section 361 of the FWA does provide that the reason alleged for a particular action taken by a person (for the purposes of the FWA) is to be presumed as being the reason for that action, unless that person proves otherwise. In short, this is the “reverse onus” referred to by the respondents in their submissions. Mr Pryazhnikov’s SOC and his written submissions proceed from the proposition that simply having made the allegation, it is now up to the respondents to “disprove” what he alleges.
This misunderstands the operation of s.361 of the FWA. That was made clear in Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 321 ALR 305 (“Tattsbet”) (per Jessup J with whom Allsop CJ and White J agreed), something more was required than a simple allegation from an applicant, before the “onus” shifted to the employer (Tattsbet at [119]) (followed in FMEU v Anglo Coal Dawson Services Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273):
“The much larger question whether s 361(1) of the FW Act operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action, was not the subject of anything more than a cursory reference in the submissions made on behalf of either party in the cross-appeal. Although the appellant’s supplementary outline appears to involve a concession that s 361(1) does operate in this way, that involved, with respect to counsel, a very superficial reading of the provision which took account neither of the long history of corresponding provisions in previous legislation nor of the many first-instance judgments of this court in which it has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131, 167 [161]-[162]; Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43, 75-77 [96]-[101]; Lever v Australian Nuclear Science and Technology Organisation [2007] FCA 1251 at [27]; Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340, 360-361 [68]; Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585; (2008) 177 IR 306, 321-322 [49]-[50]; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22, 27-28 [10]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526, 578-579 [329]-[331]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59]; Stephens v Australian Postal Corporation [2014] FCA 732 at [13]. I consider that we would be diverting the law from its proper course were we to accept a submission along the lines of that apparently contained in the appellant’s supplementary outline, even if expressed as a concession.”
As set out above in relation to each of the matters alleged by Mr Pryazhnikov, as best as they could be understood as having some connection to a prohibited reason for the respondents’ actions, Mr Pryazhnikov has not been able to establish the factual basis, that is with reference to the elements, of the general protections on which the SOC indicates he wishes to rely.
Ultimately, the reason for the termination of Mr Pryazhnikov’s employment, with reference to the evidence before the Court, is that Mr Greally acknowledged Mr Pryazhnikov’s technical competence, but had developed concerns over time (as explained in his evidence) about Mr Pryazhnikov’s capacity to work cooperatively with the other employees and customers, and his “work ethic”, and work behaviour.
Mr Pryazhnikov disputes the various bases for Mr Greally’s “concerns”, and instead, sees the expression of these concerns as a reaction or “cover-up” to his now stated grievances about various aspects of the operations of Apex.
As set out above, I have made findings in relation to each of these matters. For immediate purposes however, what remains, even on the most benign view of Mr Pryazhnikov’s case, is that Mr Greally and Mr Pryazhnikov’s relationship, and that of Mr Pryazhnikov with other employees of Apex had, by the end of October 2016, reached the point where their working relationship was unsustainable.
As the terms of the letter of termination made clear, Mr Pryazhnikov’s inability to adopt a more cooperative or conciliatory, rather than a combative approach to Mr Greally’s concerns, made the termination of his employment the only reasonable, and viable option open in the circumstances.
As Mr Greally’s letter also made clear, he had hoped to “resolve things with you on the best for both yourself and the company”. Mr Pryazhnikov did not respond to this in a favourable way but, on the evidence (including that of Mr Sasaki), his conduct “became increasingly volatile” and “unacceptable”, leaving Mr Greally with no other option but termination of his employment in “everybody’s interest”.
In short, the termination of Mr Pryazhnikov’s employment was not because of any workplace right that he had. No breach of s.340 arises.
Conclusion
The application to the Court should be dismissed. I will make the appropriate orders.
I certify that the preceding four hundred and thirty (430) paragraphs are a true copy of the reasons for judgment of Judge Nichollsl
Date: 13 December 2018
Schedule 1 – Objections to Evidence
| Affidavit | Paragraph | Objection | Disposition |
| Affidavit of Mr Pryazhnikov made on 22 March 2017 | [34], first and second sentences | Conclusion | Objection upheld |
| [35] | Relevance | Objection upheld | |
| [41] | Relevance | Objection upheld | |
| [43] | Assumed fact | Objection not upheld | |
| [44] | Relevance and oppressive | Objection not upheld | |
| [48], third sentence | Relevance | Objection upheld | |
| [56] | Relevance, hearsay, indirect speech | Objection upheld | |
| [70] – [72] | Best evidence | Objection upheld | |
| [77], from “In my reply..” | Form | Objection upheld | |
| [79] | Best Evidence | Objection upheld | |
| [80] | Best Evidence | Objection upheld | |
| [89], first two sentences | Best Evidence | Objection upheld | |
| [95] | Relevance | Objection upheld | |
| Affidavit of Mr Pryazhnikov made on 4 May 2017 | [24] – [32] | Relevance | |
| Affidavit of Mr Pryazhnikov made on 22 May 2017 | [1] | Scandalous | Objection upheld |
| [2] | Relevance | Objection not upheld | |
| [3] | Relevance | Objection not upheld | |
| [4] | Relevance | Objection not upheld in relation to paragraph. Evidence not pressed in relation to annexure D | |
| [5] | Relevance | Objection upheld | |
| [6] | Relevance | Evidence not pressed. | |
| [7] – [12] | Relevance | Evidence not pressed. | |
| Affidavit of Mr Greally made on 9 October 2017 | [21] | Relevance | Evidence not pressed |
| [23] | Relevance | Objection not upheld | |
| [25] | Form | Objection not upheld | |
| [27] | Best evidence | Objection not upheld | |
| [29] | Evidence is contested by the applicant | Objection not upheld | |
| [35] | Hearsay | Objection not upheld | |
| [36] | Conclusion | Objection not upheld | |
| [42] | Best evidence | Objection not upheld | |
| [52] | Conclusion | The word “asked” not pressed. Object not upheld. | |
| [54] | Refers to an annexure which was not attached | Evidence not pressed |
0
12
21