Pryazhnikov v Apex Signage Pty Ltd

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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

  1. 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

  1. 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.

  2. 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…

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Details
Case
[2018] FCCA 3685
Decision Date

CaseChat Overview and Summary

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

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

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

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

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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