Stamenkovic v Adtrans Hino Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

STAMENKOVIC v ADTRANS HINO PTY LTD

[2019] FCCA 2307

Catchwords:
INDUSTRIAL LAW – Application alleging breaches of the Fair Work Act 2009 (Cth) – alleged adverse action – application alleging that the exercise of a workplace right resulted in the termination of employment – whether employment was terminated because of complaint or inquiry made by the applicant – onus discharged by the respondent – no adverse action – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss. 340, 341, 342, 361, 545, 546, 547

Cases cited:

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347; (2018) 277 IR 75
Blair, W.D. v Australian Motor Industries Ltd [1982] FCA 143; (1982) 3 IR 176
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Shizas v Commissioner of Police [2017] FCA 61; (2017) 268 IR 71

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139

Applicant:

KRISTIAN STAMENKOVIC

Respondent:

ADTRANS HINO PTY LTD

File Number:

SYG 815 of 2017

Judgment of:

Judge Nicholls

Hearing date:

25 – 26 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Sydney

Delivered on:

22 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr O. Fagir

Solicitors for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr I. Latham

Solicitors for the Respondent:

The Workplace - Employment Lawyers Pty Ltd

ORDERS

The application made on 17 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 815 of 2017

KRISTIAN STAMENKOVIC

Applicant

And

ADTRANS HINO PTY LTD

Respondent

REASONS FOR JUDGMENT

This is an application made on 17 March 2017 by Mr Kristian Stamenkovic (the applicant) seeking declarations, compensation and pecuniary penalties pursuant to ss.545, 546 and 547 of the Fair Work Act 2009 (Cth) (“the FWA”) against his former employer, Adtrans Hino Pty Ltd (“Adtrans”) (the respondent), for an alleged adverse action within the meaning of s.342 of the FWA, taken against Mr Stamenkovic due to him exercising a workplace right pursuant to s.341(1) of the FWA, in breach of s.340 of the FWA. Mr Stamenkovic filed a “Form 2” on 17 March 2017.
It is not in dispute that at the relevant times, Adtrans was an employer, and Mr Stamenkovic was an employee, for the purposes of the FWA.
Mr Stamenkovic was employed by Adtrans, commencing on 14 June 2011. It is not in dispute that his employment was terminated on 25 November 2016. Mr Stamenkovic asserts that his employment was terminated because he made a complaint on or around 29 August 2016, because he subsequently took sick leave, and made a “WorkCover” claim. This complaint, the taking of sick leave, and the “WorkCover” claim, were all said to be an exercise of workplace rights.

Before the Court

The parties first appeared before the Court on 5 April 2017. Mr Stamenkovic was represented by a solicitor, as was Adtrans. Orders were made, by consent, for the progress of the matter, including that parties attend mediation before a Registrar of the Court. The mediation was unsuccessful.
The affidavit evidence filed on behalf of Mr Stamenkovic, and read into evidence (subject to objections that were upheld) at the final hearing is as follows:
a.The affidavit of Kristian Stamenkovic, filed on 17 January 2018, with annexures.
b.The affidavit of Kristian Stamenkovic, sworn and filed on 22 March 2018 (re-filed on 28 September 2018 as it was missing page 4), with annexures.
c.The affidavit of Kristian Stamenkovic, filed on 17 October 2018, with annexures.
A copy of an email chain between Brett Stinson, Greg Mann, and Jeff Morgan, dated 13-14 June 2017, was tendered by Mr Stamenkovic at the final hearing on 26 March 2019, and marked as “AE1”.
The affidavit evidence filed on behalf of Adtrans, and read into evidence (subject to objections that were upheld) at the final hearing is as follows:
a.The affidavit of Jeffrey (“Jeff”) Morgan filed on 15 February 2018, with annexures.
b.The affidavit of Gregory (“Greg”) Thomas Mann, Group Service Manager, 15 February 2018, with annexures.
Various orders were made for the filing of evidence, including consent orders on 29 November 2017 that:
“1. The evidence in chief in this matter is by way of affidavit.

2. The applicant file and serve affidavits of evidence in chief to be relied on at the hearing of the application by no later than 4.00pm on 10 January 2018.

3. The respondent file and serve affidavits of evidence in chief to be relied on at the hearing of the application 4.00pm on 7 February 2018.

4. The applicant file and serve any evidence by way of affidavit in reply by no later than 4.00pm on 21 February 2018.

5. The parties exchange any objections to affidavit evidence by 4:00pm, 28 days prior to the commencement of the hearing.

6. The parties exchange responses to any objections to evidence by 4:00pm, 21 days prior to the commencement of the hearing…”

At the final hearing on 25 March 2019, Adtrans filed, in Court, the affidavit of Jeffrey Morgan dated 22 March 2019. This ultimately was not read into evidence on the basis of prejudice. An application on behalf of Adtrans for an adjournment in order to allow the filing and serving of this further affidavit was also refused on that basis.
Mr Stamenkovic and Mr Morgan gave oral evidence at the final hearing.

The Relevant Events

Mr Stamenkovic’s claims are contained in his “Form 2” document filed on 17 March 2017, and in his Statement of Claim (“SOC”) filed on 21 April 2017.
Mr Stamenkovic commenced employment with Adtrans on 14 June 2011 as a “New Truck Salesperson”.
Mr Stamenkovic claims that in August 2016 an incident occurred between him and the General Manager of the Mascot dealership at Adtrans, Mr Jeff Morgan. He asserts that on or around 29 August 2016 he made a complaint to Adtrans’ Human Resources department, in relation to the alleged behaviour of Mr Morgan.
Mr Stamenkovic claims that in making this complaint, he exercised a workplace right, within the meaning of s.341(1)(c)(ii) of the FWA, being that he made a complaint in relation to his employment.
On or around 29 August 2016, Mr Stamenkovic took sick leave. Following this, on or around 31 August 2016, Mr Stamenkovic made a “WorkCover” claim. He took further sick leave on, or around, 1 November 2016. Mr Stamenkovic asserts that in making this claim and taking personal leave, he exercised workplace rights within the meaning of s.341 of the FWA, being that he sought to exercise the benefit of a workplace law by making a “WorkCover” claim.
The following chronology can be extracted from Mr Stamenkovic’s and Mr Morgan’s evidence, to outline the events leading up to the termination of Mr Stamenkovic’s employment.

First Warning

Mr Stamenkovic claims that on 29 June 2016 he made a comment to a colleague, Mr Sam Cash, expressing his frustration regarding the “new roster” for the next month (Mr Stamenkovic’s affidavit of 17 January 2018 at [23] – [24]). Mr Stamenkovic asserts that Mr Morgan overheard this comment, (which Mr Morgan denies hearing – see [19] of his affidavit of 15 February 2018) and directed him to come into his office for a conversation (Mr Stamenkovic’s affidavit of 17 January 2018 at [24]).
Mr Stamenkovic claims that Mr Morgan told him to “go home” due to his “attitude” being “wrong” (Mr Stamenkovic’s affidavit of 17 January 2018 at [25]). Mr Morgan asserts that he asked Mr Stamenkovic to: “…go home and come back in the morning…” so that they could continue the conversation in a “calm manner”, due to Mr Stamenkovic being “too worked up” to continue the conversation (Mr Morgan’s affidavit of 15 February 2018 at [19]).
Mr Stamenkovic asserts that he left Mr Morgan’s office and returned to his desk to “get the number for HR” (Mr Stamenkovic’s affidavit of 17 January 2018 at [26]). He asserts that he was referred to Mr Michael Raywood, who was the Group Human Resources Manager at A.P. Eagers Limited [Adtrans is a subsidiary of the A.P. Eagers Limited Group]. He then said that he left the dealership to speak to Mr Raywood on his mobile, to inquire about making a complaint about Mr Morgan, and asked whether Mr Morgan could make him go home. Mr Stamenkovic asserts that Mr Raywood told him to: “…do whatever you’re told” and that he would: “…send [Mr Stamenkovic] a complaint form”, after Mr Stamenkovic indicated that he wanted to make a complaint (Mr Stamenkovic’s affidavit of 17 January 2018 at [27] – [29]).
After being sent a copy of the ‘Grievance/Complaint’ policy by Mr Raywood (see “KS8” of Mr Stamenkovic’s affidavit of 17 January 2018), Mr Stamenkovic remained at work after he said he received a phone call from a customer asking him to complete paperwork in relation to the sale of two trucks.
The following day, on 30 June 2016, Mr Stamenkovic was told to attend a meeting with Mr Morgan upon his arrival at work. In addition to Mr Morgan, Mr Greg Mann, the Group Services Manager, was also present. At this meeting Mr Stamenkovic was given a warning letter (the “First Warning Letter”) dated 30 June 2016, in relation to him not following the direction from Mr Morgan on 29 June 2016 to “go home” (see Mr Stamenkovic’s affidavit of 17 January 2018 at Annexure “KS9”, and the affidavit of Mr Morgan of 15 February 2018 at Annexure “F”).

The “Gosford Incident”

Mr Stamenkovic’s evidence is that in July 2016 Mr Morgan agreed that Mr Stamenkovic could spend one day per fortnight on Mondays working from the Gosford dealership (17 January 2018 affidavit of Mr Stamenkovic at [35] – [36], and 15 February 2018 affidavit of Mr Morgan at [24]).
Mr Stamenkovic asserts that in early August 2016 he received the roster for that month, and was rostered to work a “floor day” at the Mascot dealership on 29 August 2016, which was the same day he was “scheduled” to be at the Gosford dealership (Mr Stamenkovic’s affidavit of 17 January 2018 at [40]).
Mr Stamenkovic asserts that he “called out” to Mr Morgan to inform him of this, when his co-worker, Mr Sam Cash, told him that they could swap shifts (Mr Stamenkovic’s affidavit of 17 January 2018 at [41]). Mr Stamenkovic claims that the practice of swapping shifts was: “…very normal across the dealership…” and: “…would happen a couple of times a month between different staff members” (Mr Stamenkovic’s affidavit of 17 January 2018 at [41]).
Mr Morgan asserts that while swapping rostered floor days was supported on an: “…occasional basis depending on the circumstances”, and approved on request from “time to time”, it was: “…not supported by management as a general practice…” (Mr Morgan’s affidavit of 15 February 2018 at [25]).
On the morning of 29 August 2016, Mr Cash notified Mr Stamenkovic and Mr Morgan via a text (“SMS”) message that he was unwell and would not be able to come into work at the Mascot dealership (see Mr Morgan’s affidavit of 15 February 2018 at [26] and Annexure “G”). Mr Stamenkovic had driven up to Gosford on the previous day, and went to work at the Gosford dealership on the morning of 29 August 2016.
At around 9:30am on 29 August 2016, Mr Stamenkovic received a phone call on his mobile from Mr Morgan, asking where he was (Mr Morgan’s affidavit of 15 February 2018 at [27] and Mr Stamenkovic’s affidavit of 17 January 2018 at [46]). Mr Morgan’s and Mr Stamenkovic’s accounts on what was said during the conversation differ, but in essence, Mr Morgan asked Mr Stamenkovic where he was, and whether he had received the message about Mr Cash calling in sick. Mr Stamenkovic admitted that he had seen the message, but that it was his scheduled day in Gosford.
Mr Stamenkovic claims that as a result of Mr Morgan’s conduct during this phone call, he was left feeling “anxious”, and experienced a “tingling” feeling on the back of his neck and head. He called up Mr Raywood from “HR” to tell him about the incident, who told him to see a doctor if he was feeling unwell (Mr Stamenkovic’s affidavit of 17 January 2018 at [49] – [50]).
Mr Stamenkovic did not think he was in a position to drive back to Sydney, and at approximately 10:00am called “Safe Work NSW” and spoke with a person named “Amanda”, who advised him to see a doctor, and not to drive “anywhere” because of the symptoms he was experiencing (Mr Stamenkovic’s affidavit of 17 January 2018 at [52]).

Sick Leave and Return to Work

Mr Stamenkovic took sick leave from 29 August 2016. He made a complaint to HR over the alleged behaviour of Mr Morgan (by emailing Mr David Reid, General Manager at Adtrans Hino – see Annexures “KS11” and “KS12” of Mr Stamenkovic’s affidavit of 17 January 2018), and on 31 August 2016 he made a “WorkCover” claim (Mr Stamenkovic’s affidavit of 17 January 2018 at [53] – [57] and Annexure “KS13”).
On 1 September 2016, Mr Stamenkovic received clearance from his doctor, (Dr Murray Ullman) that he could return to work on 5 September 2016 (see Mr Stamenkovic’s affidavit 17 January 2018 at [59]).
Around 10:13am on that same day, Mr Stamenkovic asserts that he received a text message from Ms Jenny Seal (“from HR” at Adtrans) asking to call her “for a chat” (see Mr Stamenkovic’s affidavit 17 January 2018 at [60]). Around 4:25pm Mr Stamenkovic sent Ms Seal a text message, after having spoken to her on the phone, and advising her that he had received clearance to return to work on 5 September 2016 (see Mr Stamenkovic’s affidavit 17 January 2018 at [62] – [63] and Annexure “KS14”).
Also, on or around 1 September 2016, Mr Stamenkovic asserts he was contacted by Mr Cash informing him that he was not on the work roster for the next month (of September 2016) (see Mr Stamenkovic’s affidavit 17 January 2018 at [64]). Mr Stamenkovic also claims to have realised that his phone had been diverted, and “discovered” that his email access had also been blocked (see Mr Stamenkovic’s affidavit of 17 January 2018 at [65] (first sentence not admitted)). Mr Morgan claimed that he did not know of the date when Mr Stamenkovic was to return to work, and that an amended roster was emailed when he knew of the date (see Mr Morgan’s affidavit of 15 February 2018 at [29] and Annexure “H”).
Mr Stamenkovic again spoke with Ms Seal on 2 September 2016 about a “return to work meeting”, as he “believed” that he would be returning to work on Monday 5 September 2016. Ms Seal confirmed via an SMS message that she and Mr Stamenkovic would meet at the “Naked Duck café” next door to the Mascot dealership at 12:00pm on Monday 5 September 2016 (see Mr Stamenkovic’s affidavit of 17 January 2018 at [66] – [67] and Annexure “KS15”).
On 5 September 2016 Mr Stamenkovic met with Ms Seal and Mr Morgan at around 12:15pm at the “Naked Duck café”. Mr Stamenkovic asserts that Mr Morgan: “…denied most of what [Mr Stamenkovic] said had occurred during that conversation [the Gosford conversation]” (see Mr Stamenkovic’s affidavit of 17 January 2018 at [69]-[70]). Mr Stamenkovic claims that Ms Seal asked him if he would consider not following through with his “WorkCover” claim (see Mr Stamenkovic’s affidavit of 17 January 2018 at [73]).
Mr Morgan denies that any comment was made to Mr Stamenkovic to the effect that he should withdraw his workers compensation claim, and annexed minutes of the meeting to his affidavit of 15 February 2018 (see at [31] and Annexure “I”), with which he says Mr Stamenkovic agreed. They all agreed that Mr Stamenkovic would like to return to work on 6 September 2016. Later in the evening, after the meeting, Mr Stamenkovic received an SMS message from Ms Seal saying (at Mr Stamenkovic’s affidavit of 17 January 2018 at [76] and Annexure “KS17”):
“Hi Jeff, no response from Kristian. Sent him a[n] SMS as well. I’ll let you know when I hear. Just hope he does not show for work tomorrow. Cheers Jenny”.

The short minutes of the conversation from the meeting provided by Mr Morgan state that Ms Seal attempted to contact Mr Stamenkovic via phone, and sent him two text messages, to which he did not reply (Mr Morgan’s affidavit of 15 February 2018 at Annexure “I”). However, Mr Stamenkovic claims that prior to receiving the SMS message, he had not heard from Ms Seal, or anyone at Adtrans, since earlier in the day (Mr Stamenkovic’s affidavit of 17 January 2018 at [79]).
Mr Stamenkovic responded to Ms Seal’s SMS message advising that he thought he was to return to work on 6 September 2016 (Mr Stamenkovic’s affidavit of 17 January 2018 at [79]). Ms Seal replied, and a text message exchange ensued, with Ms Seal ultimately explaining that “company procedures” stopped him from returning to work until “action planned” had been agreed and signed, and that this would probably not be until the end of the day of 6 September 2016, so Mr Stamenkovic would be sent home if he came into work anyway (Mr Stamenkovic’s affidavit of 17 January 2018 at [80] and Annexure “KS17”).
On 6 September 2016, Mr Stamenkovic called “Safe Work NSW” seeking advice: “…given [he] had been told to stay away from work even though [he] had received clearance to return from [his] Doctor.” “Erin” from “Safe Work NSW” said that “this didn’t seem right”, and that Mr Stamenkovic should contact HR (Mr Stamenkovic’s affidavit of 17 January 2018 at [83]). Mr Stamenkovic again spoke with “Safe Work NSW" on 7 September 2016 and asserts that he was given advice by the person with whom he spoke, to the effect that he should be back at work if he had clearance from his doctor and psychiatrist (Mr Stamenkovic’s affidavit of 17 January 2018 at [84]).
Mr Stamenkovic claims that he called Ms Seal on 8 September 2016 to discuss his return to work, however he was unable to contact her, and his call was not returned (Mr Stamenkovic’s affidavit of 17 January 2018 at [85]). On 9 September 2016 Mr Morgan received an “action plan points” from Ms Seal (Mr Morgan’s affidavit of 15 February 2018 at [32] and Annexure “J”).

“Return to work on 12 September and the Final Written Warning”

Mr Stamenkovic returned to work on 12 September 2016 (see at [86] – [88] of his affidavit of 17 January 2018).
On 14 September 2016 at or around 11:30am, Mr Stamenkovic attended a meeting with Mr Morgan and Mr Mann. During this meeting, Mr Morgan and Mr Mann discussed a number of matters, including Mr Stamenkovic’s: “…responsibilities at Gosford, customer updates and customer feedback” (at [90] (except for second last and last sentence), and see Annexures “KS18” and “KS19”of Mr Stamenkovic’s affidavit of 17 January 2018). (Also see at [3], and Annexure “A”, for minutes of this meeting, of the affidavit of Mr Mann dated 15 February 2018). Mr Morgan claims this meeting was for the purpose of discussing: “…any assistance required by the applicant and [Mr Morgan’s] expectations” (at [32] and Annexure “K” of his affidavit of 15 February 2018).
On 20 September 2016 Mr Stamenkovic made a statement for “WorkCover” (see at first sentence of [93] of his affidavit of 17 January 2018).
Between 19 October 2016 and 25 October 2016, Mr Morgan asserts that there were a number of complaints from some of Mr Stamenkovic’s customers, including errors in the orders which resulted in the company having to provide refunds (see Mr Morgan’s affidavit of 15 February 2018 at [35] – [38], and Annexures “M”, “N”, “R”, and “S”).
On 26 October 2016, at approximately 4:50pm, Mr Morgan requested that Mr Stamenkovic meet him at 5:00pm that day. Mr Stamenkovic asserts that by 5:10pm, he was finishing work with a customer and returning to his office when he met his partner (who also worked at Adtrans) who told him that everyone had been told to leave the dealership. Mr Stamenkovic says that he met with Mr Morgan and Mr Mann and was given a letter: “Second & Final Warning Letter” (“Final Warning Letter”) (see Mr Stamenkovic’s affidavit of 17 January 2018 at [95], [97], and Annexure “KS21” and [41] and Annexure “T” of Mr Morgan’s affidavit of 15 February 2018).

Mr Stamenkovic’s Response to the “Second & Final Warning Letter”

On or around 27 October 2016, Mr Stamenkovic was shown a print out of an email from Mr Cash, sent from Mr Morgan on 27 October 2016 to: “…all other sales staff…”, forwarding an invitation to an event in December run by “Hino” for staff and customers. Mr Stamenkovic asserts that he saw that he: “…was the only sales staff member not included in this email, meaning that both [he] and [his] customers did not have access to this event” (see his affidavit of 17 January 2018 at [105]-[106], and Annexure “KS22”).
Mr Morgan asserts that the event was sponsored by Hino Motor Sales Australia, and not by Adtrans, or himself, and that it was: “…not true that all other salespersons were invited” and that two other salespersons were not invited, because: “…they, like the applicant, had no relevant customers to invite” (at [44] of his affidavit of 15 February 2018).
Mr Stamenkovic sent an email to Mr Morgan, copying in Mr Reid, Mr Mann, and Ms Seal, on 31 October 2016. In this email he stated that he disagreed, or did not accept, each of the 15 claims in the Second & Final Warning Letter, and advised that he was waiting on information “about his rights” following the phone conversation between himself and Mr Morgan on 29 August 2016. He also stated that he would send a reply to the letter: “…along with another meeting request to address everything…” (see Mr Stamenkovic’s affidavit of 17 January 2018 at [108] and Annexure “KS23”).
On 1 November 2016 Mr Stamenkovic visited Dr Ullman (his GP) following: “…what Dr. Ullman has since described as an anxiety attack” on the previous evening. He was advised to take the rest of the week off work to give him time to see his psychiatrist again. (See [110]-[111] of his affidavit of 17 January 2018).
Also on this day, Mr Stamenkovic asserts that he was unable to access his work email and phone again (at [113] of his affidavit of 17 January 2018).
Between 1 November and 4 November 2016, Mr Stamenkovic took personal leave on his doctor’s instructions (at [112] of his affidavit of 17 January 2018).
On 2 November 2016 Mr Stamenkovic claims that he notified his (then) manager, Mr Daniel Glynn, that he would be returning to work on 7 November 2016 (at [116] of Mr Stamenkovic’s affidavit of 17 January 2018). Mr Morgan claims that he does not recall being advised that Mr Stamenkovic had told Mr Glynn of his return to work on this date (at [46] of his affidavit of 15 February 2018).

Customer Complaint

On 3 November 2016, Mr Morgan received an email generated through the “Customer Satisfaction Index” (“CSI”) regarding a failure of a staff member to return customer calls, this staff member being Mr Stamenkovic (at [50] and Annexure “U” of Mr Morgan’s affidavit of 15 February 2018). Following this, on 4 November 2016 Mr Morgan received an email from NSW Fair Trading regarding a complaint lodged by a customer, involving a sale conducted by Mr Stamenkovic. Mr Morgan also asserts that on 12 January 2017, the NSW Civil and Administrative Tribunal (NCAT) made orders that Adtrans build a new body on this customer’s vehicle. (See [51], and Annexures “V”, “W” and “X” of Mr Morgan’s affidavit of 15 February 2018).

“Return to work on 7 November”

Mr Stamenkovic returned to work on 7 November 2016, but states that he did not have access to his emails, phone, or “Hino Central” (the intranet) (at [117] of his affidavit of 17 January 2018). Mr Morgan did not recall being notified of the return to work on this date, and asserts that had he been aware of this, he would have organised his access with the IT department or Hino Australia ([47] of his affidavit of 15 February 2018).
Mr Morgan received an email from another customer from Mascot Steel Fabrication regarding the lack of communication on an order. Mr Stamenkovic was the salesman for this order (at [52] and Annexure “Y” of Mr Morgan’s affidavit of 15 February 2018).
Mr Stamenkovic asserts that during the day, Mr Morgan requested to meet with him at 4:00pm. At this time, Mr Stamenkovic went to Mr Morgan’s office and asked if he had received his email of his finalised response to the Second & Final Warning Letter (see at [119] of Mr Stamenkovic’s affidavit of 17 January 2018). [It was not clear on the evidence whether this was sent from a private email address].
Mr Stamenkovic asserts that Mr Morgan said that he had, and Mr Stamenkovic also handed him: “…a signed copy of the email in letter form”. Mr Stamenkovic asserts that Mr Morgan took the letter and told him that he was “too busy to have the meeting”. (See at [119] and Annexure “KS25” of Mr Stamenkovic’s affidavit of 17 January 2018 – this letter, handed to Mr Morgan at the 7 November 2016 meeting (see [120] of his affidavit of 17 January 2018), was “…the same as the email that had also been provided to Mr Morgan in email form” (at [121] of his 17 January 2018 affidavit)). Mr Stamenkovic left his office and claims he was not given any further information regarding when the meeting would be held, or what it would concern (see at [120] of his 17 January 2018 affidavit).
The next day, on 8 November 2016, Mr Stamenkovic asserts that he initially still had no access to his phone and emails upon arriving at work (at [126] of Mr Stamenkovic’s affidavit of 17 January 2018). After regaining access to his emails, he saw an email request from Mr Morgan for a meeting at 12:30pm that day, which had been sent on the previous day, when he had not had access to his emails.
Mr Stamenkovic asserts that he believed this to be a re-scheduling of the meeting requested the previous day, and wanted a support person for the meeting, replying as such. After receiving no response by 12:00pm, Mr Stamenkovic declined the meeting invitation and advised that he had done so because he had received no information, and therefore had no time to prepare for the meeting. (See [127] – [128] of Mr Stamenkovic’s affidavit of 17 January 2018).
Both parties recounted that Mr Morgan went to Mr Stamenkovic’s desk at the time of the meeting, where Mr Stamenkovic was on a phone call (at [54] of Mr Morgan’s affidavit 15 February 2018 and at [129] – [130], of Mr Stamenkovic’s affidavit of 17 January 2018 (there is a discrepancy between these two affidavits as to difference of times this was said to have occurred)).
After his phone call, Mr Stamenkovic went to Mr Morgan’s office. Mr Mann was also there (at [4] of the affidavit of Mr Mann dated 15 February 2018). Mr Stamenkovic was given a letter titled “Notice of Suspension Letter” dated 7 November 2016 (at [130], Annexure “KS27” of Mr Stamenkovic’s affidavit of 17 January 2018 and at [54] of Mr Morgan’s affidavit of 15 February 2018). The letter stated “no improvement in this area”. Mr Stamenkovic had been back at work for a total of three days after his return to work after receiving the Second & Final Warning Letter, and the Notice of Suspension Letter.

Termination of Mr Stamenkovic’s Employment on 25 November 2016

Leading up to the termination of his employment, Mr Stamenkovic asserts that on, or around, 18 November 2016, he tried to access “Hino Central”, as he had: “…approximately 4095 points available to [him]”, being: “…the equivalent of $4095 in points through the Hino Guild”. However, when he tried to access “Hino Central” to redeem his points, he found that his access was still blocked (at [136] of Mr Stamenkovic’s affidavit of 17 January 2018). Mr Morgan claims that Mr Stamenkovic’s access was suspended as “Hino Central” had confidential and sensitive information, and access was not required by Mr Stamenkovic when he was on suspension (at [56] of Mr Morgan’s affidavit of 15 February 2018).
Mr Stamenkovic received an email from Mr Morgan on 23 November 2016 requesting that he attend the Smeaton Grange Dealership where he would be advised of the outcome of the investigations into his conduct. The email advised him that he had the option of bringing a witness with him. Mr Stamenkovic responded requesting that the meeting be moved to the Mascot Dealership, and advised that he would be bringing a witness. (See at [137] of Mr Stamenkovic’s affidavit of 17 January 2018).
The following day on 24 November 2016, Mr Morgan replied to Mr Stamenkovic’s email at 10:57am denying his request to move the meeting to the Mascot Dealership. Mr Morgan sent a further email at 1:42pm advising him that his witness had to be a current employee of Adtrans. (See at [138] and Annexure “KS28” of Mr Stamenkovic’s 17 January 2018 affidavit).
Mr Stamenkovic asserts that: “The practical effect of this was that [he] was unable to bring the witness [he] had organised and did not have enough time to find another witness” (see at [138] and Annexure “KS28” of Mr Stamenkovic’s affidavit of 17 January 2018). Mr Morgan’s position was that he was following the “Disciplinary Policy – AP Eagers” policy (at [58] and Annexure “Z” of his affidavit of 15 February 2018).
On 25 November 2016, the day of the termination of employment, Mr Stamenkovic attended the meeting at the Smeaton Grange Dealership. In attendance was Mr Morgan, Mr Mann, and Mr Brett Stinson (the latter being there at the request of Mr Stamenkovic, according to Mr Morgan – see at [59] of Mr Morgan’s affidavit of 15 February 2018).
Mr Stamenkovic asserts that the meeting began with him being given a letter titled “Letter of Termination”, and it advised him that his employment was terminated with “immediate effect” (at [140] and Annexure “KS29” of Mr Stamenkovic’s affidavit of 17 January 2018). The letter cited that investigations following Mr Stamenkovic’s suspension confirmed “ongoing issues with communication and time management” including “issues with staff, AH7338, Speedtel, trade in paperwork and Mascot Steel” (see at [142] and Annexure “KS29” of Mr Stamenkovic’s affidavit of 17 January 2018).
There is some disagreement about the conversation that occurred between the parties (see at [140] of Mr Stamenkovic’s affidavit of 17 January 2018 and at [59] (in part) and [60] of Mr Morgan’s affidavit of 15 February 2018). During this meeting, Mr Stamenkovic claims that he had a conversation with Mr Morgan in words to the following effect (at [140] of Mr Stamenkovic’s affidavit of 17 January 2018):
“Morgan:          After further investigation we’ve decided that you will be terminated effective immediately.
Stamenkovic:     What further investigation?
Morgan:       We’ve seen an abusive text message you’ve sent to other staff.
Stamenkovic:         What is this text message? Who’s it to? I don’t know anything about it. I want to see evidence.
Morgan:            I don’t need to tell you. I don’t need to give you proof.
Stamenkovic:     You can’t just terminate me over something I have no idea about. I need to have a chance to respond.
Morgan:            I don’t have to give you anything.”

The text message Mr Morgan was referring to was a text message from Mr Stamenkovic, directed to his colleague, Mr Sam Cash, at 5:31pm on the day Mr Stamenkovic received his suspension letter (8 November 2016). The exchange was as follows (see Annexure “AA” and at [59] of the affidavit of Mr Morgan of 15 February 2018):
“[Mr Stamenkovic]: You guys are dogs…thabks for the support mate
[Mr Cash]: Jeff ordered us to leave!!!
[Mr Stamenkovic]: I seen how you all were with him today and then this shit haha whatever man you are all his best friends again”

[Errors in the Original.]

Mr Morgan asserts that when Mr Cash showed him the text message: “…he sought assurance that [Mr Morgan] would not inform the applicant that he had showed [Mr Morgan]”, as he asserts that Mr Cash told him that: “…he was intimidated by the applicant and that the applicant had $1000 worth of Sam’s tools at his house and…was concerned he would not get them back” (at [59] of the affidavit of Mr Morgan of 15 February 2018).
During cross examination, while Mr Stamenkovic admitted that the use of the word “dogs” “could be” an “extremely offensive insult”, he did not believe it was disrespectful in the circumstance, as Mr Cash “was a very close friend [of the applicant’s]”.
Mr Morgan asserts that Mr Stamenkovic would not listen, and constantly interrupted the attempt at explaining reasons for termination. (See at [60] of his 15 February 2018 affidavit. See also at [5] of the affidavit of Mr Mann of 15 February 2018).
Mr Morgan also asserts that at the end of the meeting, Mr Stamenkovic said as he stood up to leave: “I will see you around little man” (at [60] of Mr Morgan’s affidavit of 15 February 2018 and at [5] of the affidavit of Mr Mann dated 15 February 2018). Mr Morgan took this: “…as a direct threat” (at [60] of Mr Morgan’s affidavit of 15 February 2018). Again, during cross-examination Mr Stamenkovic conceded that he could: “…understand that it would be received as a threat”, but that he regretted “saying it” and that he “shouldn’t have said it”.

Alleged Unpaid Commission

Mr Stamenkovic alleges that at the time of termination of his employment, he had a minimum of $4623 in unpaid commission owing to him (at [144] of Mr Stamenkovic’s affidavit of 17 January 2018). This amount is in dispute (see at [61] of Mr Morgan’s affidavit of 15 February 2018). (See further at [180] below).

The Various Documents Referred to Above

The First Warning Letter (dated 30 June 2016) is in the following terms:
“ FIRST WARNING LETTER
30^th June 2016
Mr Kristian Stamenkovic
This letter is to record and confirm the details of the discussion we had at the Mascot dealership at 3.00pm of Wednesday 29^th June 2016 during which you were formally requested to leave the premises due to your behaviour. As of 3.50pm I was advised you were still on the premises and in your office.
This follows previous verbal discussions held both one on one and with witnesses advising your behaviour is both unacceptable and requesting that you speak to me regarding any issues prior to losing your temper, to ensure every opportunity is given to resolve any issues before getting out of hand.
Over approximately the last 12 months, we have had numerous conversations regarding swearing, time management and improving your overall attitude, as it has been explained previously, you are considered a senior sales person with potential. I have explained the effects this has on other staff on each occasion and you have been advised on each occasion it is not acceptable.
During your time, starting from 11^th June 2011 of employment at Adtrans Hino all relevant training as been supplied including numerous courses relating in time management, which is an ongoing issue. As per the attached copy of your enquiry log, it shows 14 enquiries for the month as of 29^th June 2016 and separately 7 deliveries as of 29^th June 2016. Ongoing and further training will be offered to assist in overcoming these short comings.
I acknowledge there have been a few occasions where you have approached me regarding you needing more support and with numerous changes, this has been supplied and currently further support is being organised.
I confirm that you are advised that for the next 3 months I will be monitoring your attitude.
We have agreed to meet again at the end of this time to review the situation. Which is the 30^th September 2016.
As explained, this is your first formal written warning. If there are no major improvements in regards to the above issues then this will lead to a further written warning and may potentially result in the termination of your employment.
Yours faithfully
Jeff Morgan
Dealer Principal”

[Errors in the Original.]

[See affidavit of Mr Morgan dated 15 February 2018 at Annexure “F”, and see Mr Stamenkovic’s 17 January 2018 affidavit at Annexure “KS9”.]

The Short Minutes of the meeting of 5 September 2016 are as follows:
“Monday 5^th September 2016
Discussion regarding the Kristian Stamenkovic emailed allegations about Jeff Morgan.
Attendees: Jenny Seal, Kristian Stamenkovic, Jeff Morgan
Chair: Jenny Seal

JS
I asked Kristian what was the agreement to work in Gosford, Is this a written agreement?
KS
I asked Jeff a couple of months ago if I could go to Gosford on a Monday each Fortnight as I could see good sales opportunities there as it is normally as Service and Parts site only.
I puts the dates in Jeff and other staff’s outlook so they know when I am at Gosford and not in the dealership.
JS
Did you have an agreement that you need to travel up the night before?
KS
No, I wanted to do this to make the drive easier.
JS
Is it because your Mum lives there and you wanted to see her?
KS
Yes.
JS
So we can all agree, that it is not a requirement of your agreement to drive up the night before?
KS, JM
Agreed.
JS
You mentioned that Jeff calls the Gosford dealership to check if you are there on time. Jeff can you comment?
JM
I have never called the Gosford dealership to check on Kristian except for the day he was due at Mascot.
KS
Well I have been told that you called.
JS
By whom?
Karen and Rick
JS
Perhaps Jeff you could ask Karen and Rick why they would say this?
JM
[First word in sentence cut off from scanned copy] ...will as like I said I have never checked the arrival time of Kristian.
JS
Can we go over the events leading up to the phone call.
JM
A couple of months ago Kristian asked if he could go to Gosford once a fortnight which I thought was a really good idea. He did put the dates in our outlook calendar. Two weeks ago a sales manager had gone on 2 months leave and as a result I had to change the floor day roster. (The floor day is a day that the staff take in turns to open up the dealership and they need to be on site for the day.) As a result I emailed all the staff a new floor day roster. Kristian received this email. Kristian knew that his floor day was at Mascot on the Monday as on the Friday he swapped days with Sam (other sales person) for the Tuesday. (He did not inform me of this swap). On Monday morning Kristian and I received a joint text from Sam advising that he is sick and will not be coming into work. As I had no idea they had swapped days and knew that Kristian would be at Mascot to open the site.
At 9:30am when I arrived at Mascot, I did not have any sales staff. Another member from the site opened.
I called Gosford to find out if Kristian was there.
KS
I sent out an email 2 months ago advising the days I was going to be in Gosford. You did know about it Jeff.
JS
Kristian, he also sent out an email 2 weeks ago advising of the change in roster.
KS
(getting very upset) You knew that I was going to be Gosford because it was in your diary.
JM
No, I changed the roster, you knew that I had which is why you swapped days with Sam.
KS
I should have a witness here if you are going to discipline me.
JS
Kristian, this is not a disciplinary meeting, you have made allegations of bullying which we take very seriously. I have a duty of care to look into this. It is best if we can nut this out together.
KS
I know you are only doing your job, I don’t want to go over this. You don’t understand I wrote this when I was feeling anxious and I don’t feel like that now.
JS
I still need to investigate this. We are only going over the things that you have put in writing.
KS
I know, you have to do this, I understand. It just that Jeff knew I was to be in Gosford and yelled at me and told me to shut up. You don’t understand how that made me feel.
JM
I never yelled at you and I never told you to shut up. I did tell you that you need to listen.
KS
Well you hang up on me.
JM
I never hang up on you.
KS
You indicated that I was going to lose my job.
JS
How did he indicate that Kristian?
KS
He was telling me to drive back to Mascot when I knew that I was suppose to be in Gosford.
JM
It looks like we are not going to agree on this.
JS
Can we move onto the next allegation?
KS
I think I should leave, (getting upset)
JS
We need to get through this, not much more.
KS
Ok, ok, can I tape this conversation?
JS
No, that would be illegal. Can we move on?
KS
Ok, ok I know that you are just doing your job. You don’t understand how I felt that day, I have never felt like that before, I did not know what was happening to me which is why I went to the doctor. Tell me what should I have done differently.

JS
You need to look after your health and if you are not well it is important that you get medical help. We are not saying that what you did is wrong. We are looking into the written allegations of bullying and circumstances leading into it.
KS
You say that you understand but you really do not know what I went through, this feeling scared me and I did not know what was happening.
JS
Can we talk about the commission payments. How has Jeff taken your commission payments.
KS
I am not sure, he just did and did not tell me.
JM
That is not true. We have it written at the back of the folder, that you can be fined $50 per deal (incorrect paperwork)
Everyone has the same rule. I do not worry if it is a once off, but you did it 3 times. We discussed this a couple of months ago and I said if you need copies you need to contact admin who will provide it to you. Have you contacted admin?
KS
No, I didn’t know that it was written at the back of the folder.
JM
We have discussed this before and I have told you. Not sure why you are bringing it up when you haven’t contacted admin? Call Irene and she will give you the copies of the deals.
KS
We do not need to go through everything, I just want this to be over and go back to work. Why can’t I just go back to work.
JS
Like we said we need to look into this.
KS
Well it is all good now.
JS
Can we discuss our expectations moving forward. How we ensure we keep the communication lines open to prevent this happening again?
JM
A to do list daily that we can sit down with and catch up as required.
JS
Can we set a weekly catch up meeting?
JM
No it will depend on what is going on.
JS
Ok so we can agree that Kristian will do a daily ‘to do list’ and sit with check as required to go through it.
JM/KS
Yes
JS
Is there any training we can offer you Kristian that may help?
KS
I’ll do anything you think I need to do. I love my job and my customers love me. I work really hard and give it 100% and I have not done anything wrong.
JS
Jeff is there anymore training that you think will be of benefit?
JM
He has done 4 sessions on time management however we still need to work on this. Maybe some training on the sales process.
JS
What about CSI (customer service indicator)?
JM
We have not discussed the CSI results but he does have copies and he is aware that some customers did not rate his service. This is something we need to sit down and go through.
KS
What are you talking about, my customers love me. I have not had any bad CSI?
JM
You have copies of the customer feedback, we can go through it.
JS
Back to training. Can we look at a strengths finder training to focus on strengths etc.
KS
Whatever you think I need, I will do whatever.
JS
Good, I will put down some action notes so we can agree on a plan.
To summarise – Written agreement on when in Gosford and under what conditions, a to do list to sit with Jeff as required, strengths finder survey.
JM
It may change from time to time as this business we need to flexible, however if we keep the communication lines open we can work through it.
JS
Can we talk about how you are currently feeling and moving forward how you feel about receiving constructive criticism.
KS
I welcome feedback, I have no problem with this. Why what are you saying? What are you trying to tell me?
JS
I am just trying to establish a relationship where it is reasonable for Jeff as your Manager to discuss things with you. I need to you to be able to take feedback from him without getting upset. Today and previously when we have raised things with you, you dismiss it or get upset.
How can we help you, what tools can we give you so you have a positive relationship with Jeff.
KS
It is not me, it was Jeff that made me feel like this. You don’t understand, you say you understand but you don’t know how I felt that day.
JM
You are right Kristian we may not understand but we can appreciate that you were feeling anxious.
KS
(angry) You do not know how I felt, it is ok for you to sit there and say that.
JM
I know..
KS
(conversation and temper getting heated) what are you talking about Jeff, I was suppose to be in Gosford and sent meeting requests and you made me feel like this..
JS
If I could just stop the meeting. Jeff if it is ok with you, can I speak with Kristian on his own.
JM
Yes, I agree. I will be going back to the dealership.

JM
Kristian, are you ok?
KS
Yes (repeating conversation on liking his job and how he felt that day.
JS
Will you be coming back to work tomorrow?
KS
Yes I would, I like my job etc……..
JS
Great, leave it with me while I type up the conversation and send out the action points for us all to agree.
Further discussion with Jeff in summary
Jeff does not think it is a good idea for Kristian to come back to work. Jeff feels that whenever Jeff tries to talk with Kristian he gets upset and aggressive. We agreed moving forward that it is best for Jeff to have a witness present. The Service Manager would be ideal but he not back until the following week.
Jenny – I advised Jeff that I do not believe that Kristian is ready to come back to work and I feel that he may just walk out again if it is too soon. I have a duty of care to ensure that he fit to return. I agreed with Jeff that I will discuss this with Kristian and ask for him to go to his appointment on Thursday and we can discuss a return for next week.
Jenny – tried to contact Kristian, phone and 2 text messages – no reply.
I started to get worried that he would arrive at work the next day when I had not completed my notes, action points and I agreed with Jeff that he should not return until after his next counselling appointment.
Kristian replied to my text message in a panic as he wanted to come the next day. I explained after his counselling session to call me. As it was Monday night he could also call me in the morning which he did not.
I received a message on the Wednesday asking me what it going on. I replied that he should call me after his next counselling session and if all is good to return on Monday.”

[Errors in the Original.]

[See affidavit of Mr Morgan dated 15 February 2018 at Annexure “I” and see Mr Stamenkovic’s 17 January 2018 affidavit at Annexure “KS16”.]

Mr Stamenkovic’s statement made in relation to his “WorkCover” Claim, dated 20 September 2016 is in the following terms (at Annexure “KS20” of his 17 January 2018 affidavit):
“STATEMENT in the Matter of:   WC Claim of Kristian Stamenkovic
PLACE  :   253 – 259 Coward Street, Mascot NSW 2020
DATE  :   Tuesday 20 September 2016
NAME  : Kristian Stamenkovic
ADDRESS              :   [redacted]
TEL NO              :   [redacted]
OCCUPATION         :   New Truck Salesman
STATES: -
1. This statement is made freely by me and accurately sets out the evidence that I would be prepared, if necessary, to give in Court as a witness. This statement is true to the best of my knowledge and belief, and I make it knowing that, if it is tendered in evidence, I may be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.
2. My name is Kristian Stamenkovic, I am 32 years old and my date of birth is 21 April 1984.
3. I reside at [redacted] with my partner I have no children.
4. I am employed as a New Truck Salesman with Adtrans Hino Pty Ltd at their Mascot Dealership located at 253 – 259 Coward Street Mascot NSW 2020.
5. I am making this statement in regard to mental health issues I have recently experienced during the course of my employment with Adtrans Hino.
6. I do not have any additional secondary employment and have not had any throughout my employment with Adtrans Hino.
7. I first started working at the Mascot Dealership of Adtrans Hino in June 2011 and I have always worked at this dealership throughout my employment here except in recent months when I would periodically work at Adtrans Hino’s Gosford Dealership every 2^nd Monday.
8. When I first started working here I was employed in the same role as a truck salesman.
9. In my role as a new truck salesman my responsibilities and duties have been managing accounts, selling trucks, paperwork, spending time in the yard tidying etc, making various phone calls for various purposes and sometimes visiting customers.
10. My overall boss at the Mascot Dealership is the Dealer Principal Jeff Morgan. We used to have a sales manager however he ceased that role about 4 months ago.
11. I work Monday to Friday from 8.00am to 5.30pm. I also work around every 2^nd or 3^rd Saturday.
12. My base wage is $45,000.00 per annum with a car allowance of around $11,000.00 and I also receive commissions for trucks that I sell. My total average annual income is currently around $90,000.00 including the base wage and not the car allowance.
13. During my employment here at Adtrans Hino I have enjoyed my job very much and I feel like I have progressed well in my position and have achieved a very good level of sales. I have at times been in the top 5 of the National Hino sales and I believe I am currently in the top 10.
14. During my employment at Adtrans Hino I have experienced some average stress that is normal and just comes with the job, but otherwise I have enjoyed my job very much.
15. Overall my working relationship with the other staff here over the years has been good. There was one occasion a couple of years ago when I had an issue and an argument with one of the staff in the pre-delivery section, but despite that we get on well now.
16. My working relationship with Jeff Morgan was initially good but in the last year or two it has felt like our relationship has been a bit strained. There have been times when we have had different points of views with a number of things.
17. I feel that in the last year or two Jeff Morgan has been treating me differently and he has not been as friendly to me.
18. On 29 June 2016 there was an issue between myself and Jeff when one day at work I wanted to have a break as I was a bit stressed about a roster issue between me and Jeff, but Jeff wanted to see me in his office. I told Jeff no I’m going to have some lunch as I need a break but Jeff was insistent.
19. I went in to his office and he said to shut the door and I don’t care about your lunch. That’s when I was a bit smart and said “I can tell”, and then Jeff became irritated and told me to go home. I didn’t want to go home as I had customers to deal with which I told him but he didn’t care and he ordered me to go home.
20. I then called HR for advice and they said they would send me a grievance form if I wanted to lodge a complaint.
21. Jeff left soon after that and as I was about to go I received a call from a customer who pleaded with me to do the paperwork on two trucks, I initially said no I couldn’t but then I gave in and stayed and did it for him, so that was 2 truck sales. I also sold another two trucks that day.
22. The next day on 30 June 2016 I was in trouble with Jeff as I did not obey him and in the morning he gave me a written warning for not going home when he told me to the previous day. I note that on this day Jeff mentioned to me that he knew I had called HR and might make a complaint, which I thought was strange that he would know that.
23. I also note that at the end of this day Jeff approached me and shook my hand as he congratulated me for having the most sales for the month. It was weird to be warned in the morning and then congratulated in the afternoon.
24. When I received the written warning from Jeff I accepted it and I did not react badly to it and I just tried to move on from it from there. Getting the warning did annoy me (and more so because I had good sales figures) and it didn’t do my relationship with Jeff any favours.
25. I think me and Jeff Morgan have a bit of a communication problem and I find that I don’t really relate to Jeff all that well as we are just different personalities. I find that Jeff can be quite abrasive and harsh in the way that he speaks with me at times and with other staff. But I also have noticed that Jeff does not seem to like conflict or arguments.
26. Regarding myself I don’t like to be controlled and I will speak my mind if I disagree with someone on something that is important to me. Importantly, I have always felt that my results and hard work should speak for themselves and though I am not a kiss arse type of person I have always put my best foot forward for Adtrans Hino.
27. In approximately early July 2016 an agreement was made between myself and Jeff Morgan for me to work every second Monday at the Gosford Dealership due to try and boost the sales at that dealership.
28. I instigated this and volunteered to attend Gosford. Initially I was thinking once a month but we agreed to once a fortnight every second Monday.
29. My main motivation in working at Gosford once a fortnight was to help the business and to boost my sales and service my customers. I also have family on the central coast and it worked out that I could stay at my Grandmothers place at Budgewoi on a Sunday evening.
30. Most of the Administration and Sales staff at Mascot and Gosford were aware of this arrangement as were all current and potential customers of the Gosford Dealership. On 8 July 2016 I sent an email to all of our staff advising that I would be attending Gosford every second Monday as of and including Monday 18 July 2016.
31. I also configured it so that outlook notifications would be issued to all staff (including Jeff) on the Friday before the Monday that I work at Gosford. So these notifications pop on our phones and computers on each Friday before every 2^nd Monday that I attend Gosford and on the Monday morning itself.
32. The first time I went to Gosford I just drove up on the Monday morning, the second time, I went to my Grandmother’s house the night before on Sunday and stayed the night to travel to Gosford on the Monday morning. From that time I decided I would always travel up and stay at my Grandmother’s house the night before working at Gosford on a Monday when possible.
33. I missed the third time at Gosford as I was on holiday leave when that Monday came around. I don’t receive allowance for travelling to Gosford. Jeff did not know I decided to travel up the day before in Sunday.
34. At the beginning of each month we get the rosters (which Jeff prepares) and at the beginning of August 2016 Jeff had me rostered to work a floor day at Mascot on Monday 29 August 2016 which was the day I was scheduled to work at Gosford.
35. So early in August 2016 when we got the rosters I yelled out to Jeff who wasn’t far away (his desk is about 10 metres from my desk) and I said to the effect “hey Jeff that Monday on the 29^th is my floor day at Gosford” and before I finished saying that Sam who was nearby said “don’t worry we can swap shifts as I won’t be in the office on that Tuesday”.
36. I presumed that Jeff would have heard Sam say what he said about swapping shifts but I don’t know if he did or did not.
37. So in early August 2016 me and Sam arranged to swap our shifts for that Monday 29 August 2016, for him to cover the floor at Mascot so that I could attend Gosford for a floor day there.
38. There was no formal notification about me and Sam swapping our shifts that day; it was just verbal between him and me. I did not advise Jeff that we had swapped shifts as I didn’t think it would be necessary.
39. On Sunday 28 August 2016 I departed Sydney at around 6pm and I travelled to my Grandmother’s house at Budgewoi where I stayed the night. I note that on that night at around 9pm I received a call from Sam just confirming that we were swapping our shifts for the next day.
40. On the morning of Monday 29 August 2016 I departed Budgewoi at around 7.45am and drove to work at the Gosford Dealership.
41. Along the way to Gosford I saw an email message which said that Sam Cash and the Sales Coordinator Sheree had both called in sick.
42. I arrived at the Gosford Dealership at around 8.25am at which time I was feeling good with a positive attitude.
43. At approximately 9:30am I received a telephone call from Jeff Morgan on my mobile and at that time I was in the sales office which I use as my office when I work there. The reception desk is just a short distance from that office.
44. When I took the call from Jeff the door of my office was open and I spoke to him on my phone normally with the phone up against my ear and not on speaker.
45. At the beginning of the call I said something like “hey Jeff how are you going” and the first thing he said without a hello or anything was “where are you”. He sounded stern and stressed and I said “I’m at Gosford where I should be”.
46. Jeff then said didn’t you see the message about Sam and Sheree, and I said yes I have, and then Jeff said well it’s your floor day today at Mascot, what are you going to do about it.
47. To be honest my memory of the exact conversation is a little vague but I recall Jeff saying a couple of times “so what are you going to do about it” and I just said well I’m up here what am I supposed to do” and then he would again say “what are you going to do about it”.
48. Jeff was very serious and he sounded very frustrated, annoyed and sarcastic. I think at one point I may have said “well I’m not the manager and I don’t control the staff”.
49. After I first took the call from Jeff I could tell that something was wrong and I began to feel stressed and nervous.
50. It seemed like Jeff was very annoyed that I was at Gosford and his attitude was like I was there for fun and I was just doing whatever I wanted to.
51. Jeff was also saying why aren’t you at Mascot and I kept on referring to my initial email advising when I would be attending Gosford and that today was scheduled.
52. I was very shocked by the tone and demeanour of Jeff as I considered I had been doing the dealership and Jeff a favour by making the effort and sacrifice to work at Gosford each fortnight.
53. As the phone call progressed and while trying to explain my situation and that I had only done what I was told to do, Jeff became even more frustrated with me and started getting aggressive, disrespecting and yelling at me. He told me a few times to just “shut up” and that “I wasn’t listening” even though I was only trying to defend and explain myself.
54. Jeff first said shut up, then he said shut up a second time, then he said you’re not listening and then a third time he said just shut up. When he said this he was yelling and was very aggressive. I had never heard Jeff speak so aggressively before and I said to him what do you want from me. Jeff was silent and didn’t answer and then I said what, do you want me to drop everything and drive to Mascot and that’s when he said yep get you’re arse back to Mascot now and then he hung up the phone. The phone call only went for a minute and a half before Jeff ended the call.
55. At the end of the call I felt as though I could be in danger of being fired if I didn’t drive back to Sydney. I felt bullied during that phone call.
56. I was really shaken up by this phone call and during the call I started feeling very nervous and anxious which increased after the call. I also felt frustrated in being treated the way I was by Jeff while I was just trying to do the right thing and help the business by working at the Gosford Dealership.
57. I also felt that Jeff was blaming me for the short staffing issue that occurred at Mascot that day which was totally beyond my control and nothing to do with me.
58. I felt that Jeff had no right to have a go at me over this situation and I feared for the job I have worked in for over 5 years and have put my heart and soul into.
59. After the phone call ended I was feeling very nervous and anxious, I felt edgy and had some tingling on the back of my neck & head. I felt very weird, it was awful and I have never felt that way before and it scared me.
60. After a short while I contacted the HR Department to discuss what I should do as I was feeling very overwhelmed and nervous about what had just happened and I was told to go for a walk, grab a coffee for half an hour then drive back to Sydney as requested by Jeff.
61. At that point I was still feeling very stressed and requested if there was someone I could talk to as I had no direct Manager I could speak to. It was then suggested that I go and see my Doctor at home but I did not feel fit to drive that far from Gosford.
62. I then left the dealership and parked near the water, then after trying to relax without any luck for over an hour, during that time my mother phoned me by coincidence and she could tell that I didn’t sound right.
63. She asked what was wrong and I told her very briefly what had happened and she suggested that I call Safe Work NSW. So I did that and I called Safe Work NSW and spoke with Amanda, who said I needed to see a doctor ASAP and that I should not drive anywhere due to my current symptoms I am experiencing including anxiousness, tingling Back and neck, shaking and feeling very stressed.
64. I then found a local medical centre in Gosford where I booked myself in and saw the doctor. I can provide the name of this Doctor if needed but I don’t have her details with me at the moment.
65. After my consultation and assessment the Doctor decided that I needed to stay off the road for a few days and he gave me a medical certificate certifying me unfit to work until Friday.
66. As I have never experienced symptoms or a situation like this before I told the doctor that I wasn’t sure how long something like this would last and she recommended that I see a doctor back in Sydney tomorrow to see where we go from here.
67. At that time I was told not to go back to work until Wednesday unless otherwise specified by my Doctor in Sydney.
68. After seeing the Doctor I went back to the dealership to pick up some things I had there. Also while I was there I wrote and sent a detailed email to the General Manager of Adtrans Hino Mr David Reid advising of the incident with Jeff on the phone and reporting how stressed and uncomfortable I was feeling.
69. It was quite a detailed email and apart from fully explaining what happened I also stated as follows; “I love what I do and would do it forever but can no longer cope with the pressure and stress that is placed upon me from the General Manager due to lack of staff and overall attitude within the business. As you would be aware we have had staff satisfaction issues at the Mascot dealership for a long time as well as staff shortage issues and I have also done my best to bottle up any stress and move forward with my job even though we currently have no support or back up in our role. For all the good times and results, I am starting to feel useless, stressed and unable to handle it anymore.”
70. I recall that in August 2016 I wasn’t feeling very good at work that month as I was feeling that nothing is ever good enough and with the short staffing issues (less salesman) it’s like Adtrans Hino is trying to squeeze everything they can from me.
71. After I sent the email to Mr Reid I left the dealership and drove to my Grandmother’s house. During that time I felt very flat and I felt anxious and scared about the email I had sent to David Reid and the possible repercussions.
72. I had a very bad night’s sleep that night and the next morning I drove home and saw my GP that day and it was arranged for me to see a psychologist on the Thursday of that week. That Tuesday was a pretty tough day, I was feeling very flat and worried about the whole situation and I felt quite weird and spaced out and this continued for the rest of the week up to Friday. That night I had thoughts of self harm which I have never had before.
73. I saw the psychologist that Thursday and following that I felt a little better but I still wasn’t feeling anywhere near my normal self.
74. On Friday I spoke with Jenny Seal and it was agreed that I would have a mediation meeting with her and Jeff Morgan on Monday 5 September 2016 at 12pm at The Naked Duck restaurant next door to the Mascot Dealership. When I spoke to Jenny I advised that I was eager to return to work ASAP.
75. On Saturday 3 September 2016 I went away for the weekend with my girlfriend and stayed at my Aunties farm at Ourimbah. I did this to get away and to try and unwind and I did feel a lot better by the Sunday afternoon after having a couple of bushwalks and relaxing etc.
76. However when I got home on the Sunday night all of the stress and anxiety came back and I was feeling anxious about the meeting on Monday.
77. I attended the meeting at the Naked Duck at 12pm and Jeff and Jenny arrived at 12.15pm. At the meeting we discussed the phone call on 29 August 2016 very briefly and all that came from that was that me and Jeff did not agree on how the call went and what was said and Jeff totally denied telling me to shut up at anytime.
78. A short time into the meeting all talk about the phone call ceased and then the meeting turned into what seemed like a performance review which I did not understand.
79. I also wish to advise that during the meeting I was asked by Jenny if I would like to consider not following through with my claim which surprised me. At this meeting it was resolved that I would be returning to work the next day and I should call Jenny first thing. I wasn’t very happy with that meeting but I wanted to return to work ASAP.
80. That night on Monday 5 September 2016 I received a strange message from Jenny which was addressed to Jeff and talked about me. It said she “hoped I didn’t show up to work tomorrow” and when I saw that I was confused and became quite anxious. I thought why doesn’t she want me to show up to work and I started becoming worried about my job.
81. I was in touch with Jenny after that by text and it turned out that they didn’t want me back to work that week and I returned on Monday 12 September 2016.
82. I then had a return to work meeting with Jeff on Wednesday 14 September 2016 and our service manager Greg Mann was present. It was a brief meeting which just covered my role at Gosford and my customer surveys and there was not discussion of the incident on 29 August 2016.
83. Since my return to work I have been feeling better and more “normal” but I still don’t feel my normal bright and bubbly self.
84. I have always been quite a confident person and I can be a little bit hot tempered at times when I am a bit stressed.
85. I have not suffered from anxiety and depression in the past and this year in 2016 I have not had any serious issues or problems in my life which have caused any stress or upset.
86. In fact I have been very happy in my personal life this year up to when this all happened.
87. I am feeling better being at work but I am feeling fairly uncertain about my future here and in relation to this matter I do not believe that the conversation we had on the 29^th of August has been addressed and resolved in anyway.
88. As requested I have read this statement, the contents of which are to the best of my knowledge true and correct.”

[Signed by Kristian Stamenkovic and Paul Cox (witness) 20 September 2016].

[Emphasis Added.]

[Errors in the Original.]

The Second & Final Warning Letter is in the following terms:
“ SECOND & FINAL WARNING LETTER
26^th October 2016
Mr Kristian Stamenkovic
This second and final warning letter is to record and confirm the following ongoing concerns
·13/9/16 – AH7792 AMSS – This was handed in as completed. The deal was handed back to you as the SPA was missing, however you had signed the checklist stating it was done.
·13/9/16 – Speedtel P/L – you left this deal on Cheree’s desk to be signed off. The process is, it is to be handed or emailed to me for sign off (approval) then given to Cheree.
·14/9/16 – 1.40pm – you were on the phone (mobile), speaking loudly and swearing using the word “fuck” at least twice. I have previously been spoken to you about this, as customers and staff should not be exposed to this.
·27/9/16 – Michael from Eastern suburbs installation (AH7779). He met me at Mascot to discuss his complaints of you not answering his calls, issues with his body, and not wanting to deal with you any further. After looking into it, I discovered you had not supplied the “Honeycomb” Pantech as per the contract. The customer ended up with colour bond. Also there was no signed body spec sheet in the folder. The approx. following costs will now be incurred, providing the customer doesn’t demand the actual body stated on the contract, otherwise it’s likely going to be approx. $15,950.00 plus. As from 24/10/16 the customer is demanding a complete body replacement as per the contract.
oKennard’s rental truck for 4 days - $1200
oTransporting the truck to & from the body builder - $200
o$800 of goodwill due to the bad experience – $800
oApprox. total $16,700.00 including GST
·27/9/16 – I put AH7770 on your desk with a note stating “see me re: trades, Jeff”. A week later on the 27/9/16 you walk into my office with the deal, asking about it. I advised it was a week ago I left this on your desk.
·27/9/16 at 1.12pm Judi in accounts emailed you regarding AH7770, asking about unaccountable deposits, as of 29/9/16 at 11.40am you had not responded & I was still unable to close the deal off, although the truck was delivered 5/9/16.
·29/9/16 – An email from Karen Howard at 11am on 29/9/16, advising the enquiry from John Maloney had not been contacted from yesterday at 3.40pm.
·10/10/16 – Arrived to the monthly sales meeting 10 minutes late, everyone else was on time.
·19/10/16 – Your customer Dan, had issues with his truck. I had to sort it out with Dan’s wife. Total cost to the dealership was approx. $1250 (full refund of margin & floor mats). This could have been overcome if Dan was shown the truck from the beginning, as the main issue Dan had was it was plated 1/16 with 1025kms and considered it a “demo”. Once I explained the situation to both Dan and his wife, they agreed to take delivery of the truck.
·13/10/16 – You handed in 3 deals on 13/10/16 for ADI, I sat with you to show what needed to be corrected e.g. order req sheets dates, locations/logistics etc. This should have been corrected & brought back to me for approval the same day, however they were brought back 18/10/16 (3 days lost) & they were still wrong e.g. dates & suppliers. I emailed you regarding the first one & didn’t have time to email you the issues with the others.
·20/10/16 – I emailed you 20/10/16 requesting you bring the 5 deals to me the next day. I was very concerned that the time wasted leaving them on your desk unapproved. You brought them to me at approx. 11.30am 21/10/16 advising they were all fixed up etc. The first one I open which was for Wideline windows needed the order req sheet completed updated / changed. Following are some of the changes
oAll start & finish dates
oI contacted G&O & Palfinger to confirm dates
oThe logistics
Cont.
·21/10/16 I spent approx. 45mins to an hour going through the one deal. I then approved it. I then asked you before we open the next one is it correct? and you said yes. I opened it and the first thing I looked at was the order req sheet & it was wrong. You took the 4 remaining deals back to be corrected. I advised you that I have a meeting with your customer Michael from Eastern Suburbs installation regarding the issue with the incorrect body fitted at 2pm & I require the 4 deals back to me before that so they can be approved, you agreed, however I didn’t receive them until 3.30pm
·21/10/16 I rang you at 5.22pm, to advise your customer Michael from Eastern Suburbs installation just rang me and wanting a solution regarding his truck body, otherwise he will look at his legal options. You told me that you didn’t remember any details that are relevant to the customers concerns, however will go through all your emails, text messages & notes on Saturday (as it was your rostered day) and email me. As of Monday 24/10/16 at 3.53pm I have heard nothing from you. This leaves me in a very difficult situation with the customer. The customer told me on the phone he will come down & confront you about the issue. I have talked him out of it for now.
·25/10/16 – I received an email from you regarding the above issue. This put me in an impossible position with your customer. I have also received an email from the bodybuilder M&M on 25/10/16, which shows you emailing the unsigned body specification sheet directly to Mick Baker, which states colour bond. This is bypassing the process of the co ordinator supplying it with the purchase order.
·26/10/16 – Claiming 14% commission on AH7993, however you have been shown & acknowledged the truck was ordered 4 working days later. As per the commission structure this is a 7.5% commission deal. It is noted.
It is noted that if certain above points were isolated events, it would require a verbal warning only, however when combined with everything it clearly indicates a serious pattern of issues that require a written warning.
This letter follows your first warning letter from 30^th June 2016. In which, time management was highlighted as one of the issues. The above issues clearly indicate no improvement in this area and appears the basic fundamentals of communication are lacking.
Over approximately the last 12 months, we have had numerous conversations regarding swearing and time management, as it has been explained previously, you are considered a senior sales person with potential. I have explained the effects this has on other staff previously, not to mention customers over hearing.
I confirm that you are advised that for the next 3 months I will be monitoring your time management and communication.
We have agreed to meet again at the end of this time to review the situation. Which is the 25^th January 2017.
As explained, this is your second and final formal written warning. If there are no improvements in regards to the above issues, then this will lead instant termination of your employment.
Yours faithfully
Jeff Morgan
Dealer Principal”

[Errors in the Original.]

[See affidavit of Mr Stamenkovic dated 17 January 2018 at Annexure “KS21”].

The email (letter) of 7 November 2016 referred to by Mr Stamenkovic (see [56] – [57] of this judgment) is in the following terms:
“Jeff,
In response to your “Second & Final Warning Letter” dated 26^thOctober 2016 and following on from my initial response email dated 28^th October 2016.
As stated I do not agree to or accept all of the 15 points listed on your warning and have listed my response to each below.
1. 13/9/16 – AH7792 AMSS – My second day back to work after 2 weeks of stress leave. I am not sure exactly why the SPA paperwork was not included in the deal file that I handed in, as this is a repeat deal with multiple orders I may have just missed it. I would consider this a minor case of human error, and I am not known for an ongoing pattern of failure in this area. I can agree this may have occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident. I also believe I am not the only Sales staff member to have done this previously.
2. 13/9/16 – Speedtel P/L – Without direct knowledge of your movements or location on those dates and with no Sale Manager on site at Mascot I do not know how or why the deal ended up on Cheree’s desk. I can agree this may have occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident.
3. 14/9/16 – 1:40pm – As I cannot recall the exact phone call, context or person I was speaking with I can agree this may have occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident. Swearing is also something that is very frequent throughout the dealership in all departments without disciplinary action. Until and unless the dealership culture is changed to extent that swearing is deemed a warnable offence across the board, I do not this it is reasonable that I should be singled out for this.
4. 27/9/16 – AH7779 – This point is as discussed in your office. I know that a few body supplier changes were made during the sales process due to extended supplier lead times and customer requirements. As these changes were made I cannot recall how this error occurred specifically. I do agree that there has been an issue with this customer although not all on my behalf. I have gone out of my way for Michael to help him get his truck as quickly as we could, even delivering the truck to his house outside of business hours. Michael has made complaints about Management or lack of previously as well and seems to say whatever he needs to say to get what he wants. I do not think this incident on its own deserves to be included in a written warning.
5. 27/9/16 – AH7770 – I did not notice your note until a later time as I was not aware or looking for it. Placing a post it note on a desk among and under other paperwork that comes across my desk is not the appropriate communication channel for a message which you are deeming as important. I addressed it as I noticed the post it stuck to the back of some other paperwork. I also never received an email, phone call or face to face notification of your wishes on this deal, hence, I do not accept responsibility for not actioning something I was not aware of, and which you failed to appropriately communicate.
6. 27/9/16 – Due to an issue with the Trade in vehicles on this deal a payment was missed from both sides. I can agree this occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident.
7. 29/9/16 – I received this email and tried to contact the customer on the number provide on two separate occasions. Firstly on Wednesday 28/9/16 leaving a message on this occasion and a second time on Friday 30/9/16 although this time not leaving a message. This is not unusual for Gosford leads and other Sales staff can attest to this. I do not agree with this point and was never approached or asked about it prior to receiving the warning letter.
8. 10/10/16 – I agree this occurred. Travelling so far outside my regular daily work route I do not always get my timing right especially if there is heavy traffic on my route. I do not think it deserves to be included in a written warning.
9. 19/10/16 – I strongly disagree with this point and have a signed customer statement stating their version of events. I know Dan well and worked very hard for him on this deal as it is the second truck he has purchased off me and he has also sent customers my way. Dan had no issue with me or the way I handled his deal as when Dan signed for his new truck the Cab-Chassis that ended up being allocated (not by myself) to Dan’s deal already had a body on it. It was Management that decided to take the existing body off the Cab-Chassis and use it for Dan deal. I was never consulted or notified verbally or in writing of this decision and only found out when it was brought to my attention that $1500 had been taken off my margin to pay for the body swap. This in turn affected my potential commission and yearly gross figures. Dan and his wife are very disappointed in the way Management handle this situation as they were never offered any compensation in any form for the use of the old chassis in his deal until he raised a complaint. Although they took delivery on the advice of myself and other staff members they are still not happy with everything that happened. I would like to also note that the compensation amount that ended up being paid to Dan was the remainder of my margin in the deal mean I will affected my potential commission and yearly gross figures again.
10. 13/10/16 – Although I do not recall the exact time I can agree this may have occurred although do not think it deserves to be included in a written warning on its own merit. There are usually many distractions when at my desk so may have been side-tracked beyond my control and there was also a lot of confusion on these deals as they need to be registered in Victoria and I had to change which Hino Dealership where helping register the deals as per your suggestion taking time.
11. 20/10/16 – I can agree this may have occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident.
12. 21/10/16 – There are usually many distractions when at my desk so may have been side-tracked beyond my control which prevented me from getting back to you. I can agree this may have occurred although do not think it deserves to be included in a written warning without being notified or trained at the time of the incident.
13. 21/10/16 – Refer to point 4 and 12 above. This is the 3^rd point in your warning letter referencing the same customer and situation. I welcome the customer to “come down & confront me about the issue” as per your warning letter. As I would be more than happy to try to work this out with him.
14. 25/10/16 – Sorry, this is a 4^th point about the same customer and situation. Again I do not think this issue deserves to be included in a written warning without being trained in regards to it.
15. Although I can agree this may have occurred there are a minimum of 4 other staff members who also have access to these cost sheet and have made changes without my knowledge at all. I did not tick that box as YES and you have no proof to the contrary. I also do not think an incident like this deserves to be included in a written warning as it was a very minor and is also double checked vigorously.
As per your letter I to agree that these individual concerns do not merit an official warning letter of any kind either on their own or even when all grouped together over a month and a half time fame. I would also like to state that at no stage during this time frame was I approached to be assisted or trained on these listed issues. If each offence actually warranted a verbal warning then one should have been given at each instance. I feel like there was no assistance or support at all for me as there was no Sales Manager for me to approach at the time and it is clear now that you were trying to gather negative information rather than guide and support me.
You also referenced my first warning letter which was not for poor time management or swearing but in fact for not listening to a Manager when I was told to go home early afternoon on the second last day of the month during the busiest month on the year. I stayed back to deliver on promises to my customers and my obligations to the dealership and was issued a warning when all I was trying to do was a good job. I note, most employers would be happy to see staff dedicated to their role and clients and putting in work, however this was clearly not the case. This was after a small confrontation we had over floor days and me wanting to take my lunch. This incident was very different from any listed on the Second and Final Warning. This is my only previous warning in over 5 years of employment.
I would like to arrange a meeting to address this Second & Final Warning letter now that I have had time to look at each point and respond. I would also like to arrange a time when I can have a witness attend on myself as per my right. Please indicate what day and time you have available so I can arrange my witness to attend. I would like to suggest a meeting for around 4pm on the afternoon of Thursday 10/11/2016 when my witness will be available to attend. Please let me know if that will work for you.
I assure you that I have always loved my job at Adtrans Hino Mascot and want to continue working on if I can be assured a safe, supportive and non-discriminating workplace. I have put in a few years now and many hours becoming a consistent performer in the industry, even with the minimal and inconsistent Management and support we have had over the years at the Mascot Dealership. However I must state at this time that I do not feel I am not being given a fair chance since my return to work after my recent stress leave (returning to work 12/9/16 one day before your first point) which was caused by an overly aggressive and degrading phone call you made to me on Monday 29^thAugust 2016. This not only caused me to have an anxiety attack on the day leading to me needing 2 week off on stress leave but also means I have been left dealing with depression and anxiety for which I am still seeking regular medical treatment.
I will wait for your reply in regards to arranging a meeting to finalise this situation.
Regards,
Kristian Stamenkovic
Sales Account Manager – Adtrans Hino Mascot
[Signed 7.11.2016]”
[Errors in the Original.]
[See affidavit of Mr Stamenkovic dated 17 January 2018 at Annexure “KS25”].
The letter of suspension of employment is in the following terms (see Annexure “KS27” of Mr Stamenkovic’s 17 January 2018 affidavit):
“ NOTICE OF SUSPENSION LETTER
7^th November 2016
Mr Kristian Stamenkovic
This suspension letter is to record and confirm the following ongoing issues, which brings the company into disrepute and is causing staff issues.
·2/11/16 – Sales staff spent approx. 4.hrs sorting out your three trade-ins which have been sitting in the yard for an unacceptable amount of time. The JAC (U2474) since approx. 12/10/16, DAF (U2468) since approx. 27/10/16 and the Hino 717 (U2462) since approx. 20/10/16.
·4/11/16 – I was contacted by Brendan from the Department of Fair Trading regarding an ongoing issue with AH7338. This is a truck that has been sitting in our yard since approx. 16/9/16 (almost 2 months) ready for delivery. The first I heard there was any issue with this deal was on 2/11/16 where I was given a message that I had to return a call to the Department of Fair Trading regarding this truck. This is in addition to the other case I have currently going through the Department of Fair Trading regarding Eastern Suburbs Installations. Which I am also trying to sort out.
·3/11/16 – I received a CSI Incident report from HMSA regarding “Scott Lewis Landscape Construction” (AH7993) stating “They were too hard to get hold of. I almost cancelled the order and went elsewhere. I could not get hold of the salesman, there was a lack of communication. The truck is fine, the bottom line is people have to return messages”. This is a continuation of my concerns stated in both your first & second letter of warning, regarding communication issues.
This letter follows your 2^nd and final warning letter from 26^th October 2016. In which, time management and communication were highlighted as issues. The above issues clearly indicate no improvement in this area and appears the basic fundamentals of time management and communication continue to be a major problem.
The ongoing time, I and other staff are required to invest to rectify these issues is both disrupting the day to day business and is bringing the company into disrepute. The potential damage to the Adtrans Hino name through social media and other avenues of communication cannot continue. Adtrans Hino operates in a service related industry and it is absolutely critical these types of issues do not continue.
To ensure I am able to get on top of these and any other issues, which I may not yet be aware of yet, I am of the opinion it is best that you discontinue selling anymore trucks in the short term.
Over approximately the last 12 months, we have had numerous conversations regarding time management and communication.
I confirm that you are advised that effective immediately you are suspended from work with full pay, until further notice.
I will contact you again about returning to work to discuss the above issues and any other issues which may arise during our investigations. I will contact you by mobile phone when we are ready for you to come into the office for further meetings.
Yours faithfully
Jeff Morgan
Dealer Principal”

Mr Stamenkovic’s evidence is that he was “shocked” by this because he had not been given an opportunity to respond to any (of what he says in his affidavit were) “purported” issues in the suspension notice.
The suspension notice made clear that the three instances of Mr Stamenkovic’s performance raised in the notice were considered by Mr Morgan to indicate “no improvement” in “time management and communication”, which were “highlighted” in the Second & Final Warning Letter of 26 October 2016.
Mr Stamenkovic’s affidavit evidence (the undated affidavit filed on 17 January 2018, the affidavit of 22 March 2018 and the affidavit of 17 October 2018) was that he had not been given any opportunity to respond to the issues raised in the letter of suspension. In his second affidavit (of 22 March 2018) Mr Stamenkovic made an attempt to address the subject matter of the suspension notice. In essence, this was to dispute some of the assertions made in the Notice of Suspension of employment letter.
One of the items raised in the suspension notice was a complaint received by Adtrans from the NSW Department of Fair Trading involving Mr Stamenkovic, which Mr Morgan stated he was: “…trying to sort out”.
In cross examination, Mr Stamenkovic agreed that this issue was the subject of an item in Adtrans’ Customer Satisfaction Index.
He further accepted that the complaints were made, including by a customer with whom he had been dealing, but gave evidence that this occurred “through a time” when he was on leave. What remained unexplained was that in the suspension notice, the truck which was the subject of the complaint in question was said to have been: “…sitting in our yard since approx.16/9/16 (almost 2 months) ready for delivery”.
In cross examination it was put to Mr Morgan that Mr Stamenkovic had been on sick leave from “31 August to 7 November” 2016. [In context, 29 August to 12 September 2016, and from 1 November to 7 November 2016]. The proposition flowing from this was that Mr Stamenkovic could not attend to customer inquiries while he was on sick leave, and further, that Mr Morgan had removed his access to his phone and emails.
What was put to Mr Morgan in this context was the effect of the “diversion” of the phone and emails, which was said to have been done to: “…create more customer issues”.
Mr Morgan rejected this. On the evidence, the items raised in the suspension letter make reference to dates on 12, 20, and 27 October 2016 (the first dot point), all dates when Mr Stamenkovic was not on sick leave. The matter of the truck which was the subject of the Fair Trading complaint, related to a truck: “…sitting in our yard since approx. 16/9/16” (the second dot point). Again, when Mr Stamenkovic was not on sick leave. While the third dot point related to a complaint received by Mr Morgan on 3 November 2016 (when Mr Stamenkovic was on sick leave), it related to events that predated that date.
In any event, for current purposes, what is relevant to the question as to the reasons for termination of employment, was that customer complaints had been made (not disputed by Mr Stamenkovic in his evidence), and that this related to some of the concerns raised in the First Warning Letter concerning “time management”, which was described at that time as an “ongoing issue”.
Both Mr Stamenkovic and Mr Morgan agreed that on 25 November 2016 a meeting was held at the Smeaton Grange Dealership of Adtrans. Present at the meeting were Mr Stamenkovic, Mr Morgan, Mr Mann (Service Manager at Adtrans), and Mr Stinson (who, on Mr Morgan’s evidence, was the then Sales Manager of Adtrans).
Mr Stamenkovic gave evidence that he received the request to attend the meeting by email from Mr Morgan on 23 November 2016. He sought that the meeting be held at the Mascot dealership. This was refused.
In his affidavit evidence Mr Stamenkovic also stated that he asked to be able to bring a “witness” to the meeting. He was ultimately told (by email) that the witness had to be a current employee of Adtrans. His evidence was that (at [138] of his affidavit):
“…The practical effect of this was that I was unable to bring the witness I had organised and did not have enough time to find another witness”.
Mr Morgan’s evidence at [59] of his 15 February 2018 affidavit asserts that Mr Stinson witnessed this meeting, along with Mr Mann. Mr Stamenkovic’s evidence at [39] – [40] of his 22 March 2018 affidavit does not dispute this. However it is unclear whether Mr Stinson was present as Mr Stamenkovic’s witness.
At the meeting, Mr Morgan gave Mr Stamenkovic the Letter of Termination of employment. The terms of that letter are in evidence before the Court (see Annexure “KS29” of Mr Stamenkovic’s affidavit of 17 January 2018, and see [81] above).
In its terms, the letter made reference to the suspension letter (which in turn referred to the Second & Final Warning Letter, which in turn referred to the First Warning Letter). It gave as the reason for termination of employment ongoing issues with communication and time management, including issues with staff, and certain customers of Adtrans.
The parties dispute what was said at this meeting. Mr Stamenkovic’s evidence is set out in his affidavit of 17 January 2018 at [140] – [141]:
“140. On 25 November 2016 I attended the meeting at the Smeaton Grange Dealership, as directed. This meeting was with Mr Morgan, Mr Mann and Brett Stinson. The meeting began with Mr Morgan sliding a letter across the table to me. I picked the letter up and read it. The letter was entitled “Letter of Termination” and it advised me that my employment was terminated with immediate effect. After I read the letter we had a conversation in words to the following effect:
Morgan:After further investigation we’ve decided that you will be terminated effective immediately.
Stamenkovic:         What further investigation?
Morgan:We’ve seen an abusive text message you’ve sent to other staff.
Stamenkovic:         What is this text message? Who’s it to? I don’t know anything about it. I want to see evidence.
Morgan: I don’t need to tell you. I don’t need to give you proof.
Stamenkovic:         You can’t just terminate me over something I have no idea about. I need to have a chance to respond.
Morgan:I don’t have to give you anything.
141. After this exchange Mr Morgan advised he needed to go and check something with HR. He left the room and returned around five minutes later. Upon his return he said words to the following effect:
Morgan:I’ve spoken to HR, they’ve agreed, your employment is terminated.”

Mr Morgan’s evidence (at [60] of his 15 February 2018 affidavit) is that he attempted to explain the reasons to Mr Stamenkovic, but that Mr Stamenkovic would not listen.
Mr Stamenkovic was cross-examined on his evidence. He denied talking over Mr Morgan, but given his claimed anxiety and stress at the time said: “…there might have been an instance or two” of talking over Mr Morgan, and that he may have interrupted Mr Morgan on occasion.
Mr Morgan’s evidence was that the reasons for termination were the matters as discussed at the meeting of 25 November 2016. That is, after the date of the Notice of Suspension Letter.
In his evidence Mr Morgan made reference to text messages sent by Mr Stamenkovic to Mr Cash on that same day following the meeting. (See Annexure “AA” of the 15 February 2018 affidavit of Mr Morgan). Mr Morgan’s evidence is that the time these messages were sent was at 5:31pm on 8 November 2016 (at [59] of his affidavit of 15 February 2018). The messages state:
“ Wednesday…
[Mr Stamenkovic] You guys are dogs…thabks for the support mate.
[Mr Cash] Jeff ordered us to leave!!!
[Mr Stamenkovic] I seen how you all were with him today and then this shit haha whatever man you are all his best friends again”

[Errors in the Original.]

Mr Stamenkovic was cross-examined on this. Mr Stamenkovic’s initial evidence was that he was not aware of the message: “…until we recovered it in discovery documents”.
It could not be that what he was seeking to say was that he did not know about the message at all, given that he otherwise agreed that he had sent this message to Mr Cash.
Mr Stamenkovic’s evidence was also that he: “…was not aware that this was the message we were talking about”. In his account of the meeting, Mr Stamenkovic recounts a reference by Mr Morgan to a “text message”. What can be taken from this, then, is that Mr Stamenkovic was seeking to say that although the matter of a text message was raised at the meeting of 25 November 2016, he did not know at that time that it was this particular text message.
In any event, Mr Stamenkovic’s evidence in this regard is linked to the general submission he made before the Court that he was not given particulars of what was relied upon for the termination of his employment, and was denied an opportunity to be able to respond.
This, as set out elsewhere in this judgment, is not relevant to the question as to the reasons for termination of employment. As set out above, this is not an unfair dismissal case.
What remains, therefore, is that what was clearly in Mr Morgan’s mind at the time of the termination of Mr Stamenkovic’s employment, was that Mr Stamenkovic had sent an abusive text message to a colleague at Adtrans.
That Mr Stamenkovic gave evidence that Mr Cash was a good friend of his, does not detract from the point that the reference to Mr Cash, and other employees (“you guys are dogs”), was abusive.
In the current context, therefore, what was in Mr Morgan’s mind, given the reference to the text at the meeting, was that Mr Stamenkovic, even after all the warning letters and suspension notice, continued to display an unacceptable “attitude” to his work colleagues. A matter raised by Mr Morgan, at least on the evidence, at the occasion of the First Warning Letter of 30 June 2016.
Mr Mann’s evidence was that at the end of the meeting of 25 November 2016 (see [5] of his 15 February 2018 affidavit), Mr Stamenkovic: “…stood up and said goodbye to myself and Brett [Mr Stinson] and said quietly to Jeff [Mr Morgan] words to the effect of “I will see you around little man””.
Mr Morgan gave similar evidence and added that he: “…took this as a direct threat”. (See at [60] of his 15 February 2018 affidavit).
Mr Stamenkovic gave evidence that he did say these words. His affidavit evidence (of 22 March 2018) was that he regretted doing so, but he was “extremely distressed” at what had occurred, and because of his fear and anxiety (following his return to work) arising: “…when the change in Mr Morgan’s attitude occurred and the warning and suspension process occurred” (at [41] of his 22 March 2018 affidavit).
It is not clear what return to work Mr Stamenkovic referred to here. If he meant his return to work following sick leave on 7 November 2016, then the “First” and “Second & Final” warning letters pre-dated that date. [First Warning Letter dated 30 June 2016. Mr Stamenkovic took sick leave on 29 August 2016 and 1 November 2016. His “return to work” was on 12 September 2016 and 7 November 2016. The Second & Final Warning Letter is dated 26 October 2016].
Mr Morgan’s evidence is that he took this to be a threat. In the circumstances, that is not an unreasonable view given the actual words uttered, including that they were uttered following termination of Mr Stamenkovic’s employment.
For current purposes, what can be said is that the comment postdates the decision to terminate, and therefore cannot be said to be a part of the reason for it.
What it does illustrate, however, is the very point that Mr Morgan repeatedly sought to make clear to Mr Stamenkovic following on from the incident of 29 June 2016. That is, Mr Stamenkovic’s attitude generally in the workplace, and his attitude to him as a senior manager.
What emerges from the evidence is that Mr Stamenkovic had a particular “attitude” problem which exhibited itself in various ways. (Swearing, contemptuous of management, aggressive in the pursuit of what he felt to be his rights and own interests, and his dealings with other staff and customers).
While there was no formal action (other than in one instance taken by his managers prior to June 2016), following the incident on 29 June 2016 Mr Morgan had had enough. He plainly decided (as evidenced by the First Warning Letter) that Mr Stamenkovic’s attitude had to change, or his employment would be put at risk.
Mr Stamenkovic believed in the righteousness of his own conduct, and that his strong performance in sales would protect him from any consequences flowing from Mr Morgan’s warning.
The Gosford incident reveals Mr Stamenkovic did not understand the depth of Mr Morgan’s concern, or perhaps, was unable, or unwilling, to understand it. His immediate and subsequent conduct (email to Mr Reid) was an attempt to go on the offensive against Mr Morgan.
Mr Stamenkovic submitted before the Court that he should succeed in his application because there is no evidence from Mr Morgan as to his reasons for terminating Mr Stamenkovic’s employment (the adverse action).
I have, in part, addressed this above at [102] – [103]. Mr Stamenkovic also relies on Katzmann J at [101] of Shizas v Commissioner of Police [2017] FCA 61, at [31] of his submissions:
“[31] That being the case, Mr Stamenkovic must succeed on liability. There is simply no admissible evidence from Mr Morgan of his reasons for dismissal. As Katzmann J explained:
The second principle relates to the onus of proof borne by the employer. It is that to discharge the onus, the employer must generally lead evidence to show that the reasons of the decision-maker (or, where the decision is made by a committee, the decision-makers: Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 at [37]) did not include the proscribed reason: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 612 (Gibbs J), 617 (Mason J). As Gray J said in NTEU:
What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

That is why it is “extremely difficult” for an employer to discharge the onus under s 361 without leading direct evidence from the decision-maker or makers, as the case may be. In Bowling, for example, the two directors responsible for the ultimate decision to dismiss Mr Bowling were not called to give evidence. In holding that General Motors had not discharged its onus, Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, observed that its unexplained failure to call the two Melbourne directors “left uncontroverted the possibility that [Mr Bowling’s] position as a shop steward was an influential, perhaps even decisive consideration in their minds” (at 619). As Reeves J observed in Clermont Coal, this led to the High Court’s conclusion that General Motors had not discharged its onus under an earlier provision equivalent to s 361. As his Honour also observed, Bowling was cited with approval in each of the three separate judgments given in Barclay: French CJ and Crennan J at [45], [50], [53] and [56]; Gummow and Hayne JJ at [126]; and Heydon J at [149].”

It must be said that Mr Stamenkovic’s submission appears to see these authorities as providing for some formulaic approach to this issue. That is, there is no affidavit evidence from Mr Morgan where he says explicitly what was in his mind at the relevant time, and therefore Adtrans has failed to establish what was in his mind, so as to show that the reasons for the termination did not include any of the exercises of workplace rights by Mr Stamenkovic.
In my respectful view, the part of the judgment relied on by Mr Stamenkovic, and the authorities referred to there, set out a far more nuanced approach to this question.
I do not, respectfully, understand the authorities to require that to establish on the balance of probabilities that the “alleged improper reason” (or in this case, reasons) for the termination of employment confines Adtrans to only relying on affidavit evidence from Mr Morgan, with an explicit expression of the reasons for termination. In any event, subsequently in final oral submissions in reply before the Court, Mr Stamenkovic’s position appeared to be that it would be “extremely difficult” (but not impossible) for Adtrans to make out its case without “direct” affidavit evidence from Mr Morgan.
Nor do the authorities say that the absence of such evidence makes it impossible for Adtrans to succeed in the task imposed by the FWA. As Katzmann J, with respect, made clear, it is a matter of the degree of difficulty (“extremely difficult”), not impossibility.
In short, applying the principle stated by Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 (“NTEU”) (see above at [293]), what remains is to apply it to the circumstances and evidence provided by the respondent (in this case Adtrans), and as understood in light of the evidence provided also by Mr Stamenkovic.
What is critical is establishing what was in Mr Morgan’s mind, as at the relevant time, and as the relevant decision-maker. That state of mind can also be assessed in light of, or considered from, other evidence which is before the Court.
The various documents authored by Mr Morgan (the warning, suspension, and termination letters), and the context within which they were drafted, as that context arises from other evidence before the Court, and as set out above, can still, and does, provide evidence as to his state of mind.
Critical to understanding the events of June – November 2016, and relevantly, what was in Mr Morgan’s mind, and what explains the subsequent warning letters, suspension letter, and termination letter, is the phrase: “I’m done with this attitude”.
It is Mr Stamenkovic’s own evidence that Mr Morgan said this to him on 29 June 2016 after the incident with Mr Cash. (See [127] above). There is no reason not to accept Mr Stamenkovic’s evidence that this is what Mr Morgan said to him.
I note for the sake of completeness that Mr Stamenkovic gave this evidence in his 17 January 2018 affidavit at [25]. In his 15 February 2018 affidavit evidence at [19], Mr Morgan says he denies the conversation attributed to him by Mr Stamenkovic at [23] of Mr Stamenkovic’s affidavit of 17 January 2018. There is no conversation reported at that paragraph in that affidavit.
There are two conversations reported by Mr Stamenkovic (at [24] – [25] of his affidavit of 17 January 2018). In context, it appears that Mr Morgan was referring to the conversation reported at [24] of Mr Stamenkovic’s affidavit. The statement at [19] of Mr Morgan’s 15 February 2018 affidavit that he did not hear any comment made to Mr Cash by Mr Stamenkovic appears to be directed at [24] of Mr Stamenkovic’s 17 January 2018 affidavit, where his evidence is that Mr Morgan overheard a comment he made to Mr Cash.
In any event, the concern about “attitude”, as set out above, is a recurring theme in the First Warning Letter, and subsequent letters, and on the evidence certainly features, including in Mr Morgan’s mind, in the Gosford incident, and subsequent conduct (as set out above) by Mr Stamenkovic.
As Mr Morgan made clear in the First Warning Letter: “I confirm that you are advised that for the next 3 months I will be monitoring your attitude.” [Emphasis Added]. That monitoring subsequently also included Mr Stamenkovic’s dealings and relationship with customers of Adtrans.

In cross examination, as set out above, Mr Stamenkovic agreed that in the workplace he could be passionate and would stick up for his rights. This can be seen also in context of, for example, Mr Stamenkovic’s statement in his “WorkCover” statement (see above at [225] of this judgment for, in particular, [26] of that statement).
In cross examination it was put to Mr Stamenkovic, variously, but to refer to one example, the Gosford incident, that his response to Mr Morgan on the telephone (see above at [147]) would be “aggravating” for a person, such as Mr Morgan, who took his management responsibility seriously. Mr Stamenkovic agreed. Mr Morgan’s own evidence before the Court made that clear.
Mr Stamenkovic disagreed that his response to Mr Morgan in the Gosford incident (“I’m not the sales manager”) was “a bit smart”. However, to use one example, Mr Stamenkovic’s “little man” comment to Mr Morgan (see [73] and [281] above) can only be understood, amongst other things, as a “smart” comment by Mr Stamenkovic. Mr Stamenkovic’s disagreement in cross-examination that this was a “smart” comment cannot, given what is set out above, be accepted.
In short, what, on the evidence, motivated Mr Morgan in his subsequent conduct towards Mr Stamenkovic, was his concern about “attitude”, and the challenge, sometimes delivered in a “smart” fashion, to his managerial status and responsibilities.
As set out above in his submissions before the Court, Mr Stamenkovic emphasised that the matters raised by Mr Morgan in the warning, suspension, and termination letters, were a contrivance, in great part because there was no record of any such concerns (other than in one instance) expressed in the previous five years of Mr Stamenkovic’s employment up to June – August 2016. [Mr Stamenkovic’s written submissions at [6] refer to: “Between 2011 and July 2016 Mr Stamenkovic had an excellent work record”. In oral submissions he said: “…perfect record until June 2016”].
Mr Morgan’s evidence was that there had been concerns, and that these had been raised verbally, but there was no record of any such action (other than in the one instance).
The absence of any records, however, does not necessarily lead to the proposition that Mr Morgan “contrived” the matters raised, in writing, subsequently in the various letters.
What the June 2016 incident, and then the Gosford incident, relevantly reveal is that Mr Morgan had, to put it bluntly, had enough.
Nor does the juxtaposition or coincidence in timing between warning letters, and suspension letter, and the timing of the complaint, or more properly, the enquiry to HR in June 2016, support the argument that the warning letters and the like were a response to the complaint or inquiry, and subsequent sick leave, and “WorkCover” claim.
The First Warning Letter clearly arose, and was initiated by, the incident of 29 June 2016.
Mr Stamenkovic’s evidence that Mr Morgan knew of the approach to HR at that time is disputed by Mr Morgan. But in any event, even if it were to be accepted, does not detract from Adtrans’ argument that the termination was not for reason, even in part, of Mr Stamenkovic’s exercise of workplace rights. .
Mr Stamenkovic’s evidence was that Mr Morgan told him to go ahead and make his complaint about him to HR (this was around 9:30am on 30 June 2016. See [31] – [32] of Mr Stamenkovic’s affidavit of 17 January 2018. Mr Morgan denies this at [22] of his 15 February 2018 affidavit). Even if this were to be accepted (noting that Mr Morgan denies it), then it reveals that Mr Morgan was unconcerned about any such complaint by Mr Stamenkovic. Noting again that the incident of 29 June 2016 predated any such inquiry or complaint.
Nor can Mr Stamenkovic’s submission that the matters raised by Mr Morgan in the Suspension Letter, in particular concerning relationships with customers and sales, be said to be a fabrication. As set out above, Mr Stamenkovic agreed that a majority of the matters raised “may” have occurred. The documentary evidence before the Court, for example, the Fair Trading complaint, supports the proposition that it did.
Given the above, I find that Adtrans has discharged the burden imposed on it in this case by s.361 of the FWA. Mr Stamenkovic’s employment was not terminated, even in part, for reason of his exercise of his workplace rights. His employment was terminated because Mr Morgan, the senior manager acting on behalf of Adtrans, had had enough of Mr Stamenkovic’s attitude, which subsequently caused him to closely monitor Mr Stamenkovic’s conduct and performance. That conduct and performance was found to be unacceptable. That was the sole reason for the termination of employment.

Conclusion

It is appropriate that the application to the Court be dismissed. I will make that order.

I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 22 August 2019

[2019] FCCA 2307

22 August 2019

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Breach

Causation

Duty of Care