s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Application for the FWC to deal with a dismissal dispute - arbitration by consent - whether Applicant dismissed for exercising workplace right - rebuttal of presumption - found that dismissal for misconduct - no contravention of s. 340 - application dismissed

• [1] Mr Arkadiy Batikyan (the Applicant) made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) that the Commission deal with a general protections dispute involving his dismissal from Expo Centric Pty Ltd (Expo). That application was brought out of time (albeit by one day) but an extension of time was granted by Deputy President Saunders.[1] The matter then proceeded to conciliation before the Deputy President on 2 June 2025 but did not resolve. A Certificate pursuant to s 368 of the Act was issued later that day.

• [2] On 13 June 2025 an application was filed pursuant to s 369(1)(b) of the Act requesting the Commission arbitrate the dispute. This decision is that arbitration.

• [3] A hearing was conducted on 18 August 2025. The Applicant appeared on his own behalf and Mr Kruss for the Respondent. The Applicant along with Mr Kruss Expo's Chief Executive Officer and Mr Ruffat Expo's Chief Operating Officer gave evidence. Each was cross-examined at length.

• [4] The Applicant's case is that he was dismissed because he was entitled to commission payments which amounted to workplace rights. Expo contend that the reason for dismissal was serious misconduct. The bulk of the written material filed and a substantial portion of the hearing was devoted to disputing that the Applicant engaged in misconduct at all. I am satisfied that the reason for the dismissal was the Applicant's conduct which may not have amounted to serious misconduct but was the motivating factor for the dismissal.

• [5] Consequently, for the reasons that follow the application is dismissed. Whilst the Applicant's treatment by Expo may have been in certain respects unsatisfactory, the question for resolution here is a narrow one. It is whether Expo contravened s 340 of the Act by dismissing the Applicant because he exercised a workplace right.

• [6] Expo operates in the exhibition and events industry, specialising in the design and installation of exhibition stands and retail displays for trade shows. ​ The company provides services such as stand building, business development at shows, and client engagement. The Applicant was first employed by Expo on 15 April 2024. He was employed in the role of part-time office manager working 3 days per week. While working as the office manager he reorganised office systems including the introduction of an IT registry. After poor performance reviews and counselling for poor performance in July and August 2024, and a failure to improve the Applicant was dismissed from the office manager role in December 2024.

• [7] Rather than let the Applicant go, Expo offered him a role as a Business Development Manager. This was described by Expo as a career opportunity for the Applicant. The Business Development Manager role was initially offered on a trial and commission only basis. The Applicant began in the role on 13 January 2025. He was not paid a salary during this period but received a $300 weekly allowance. The trial period ended on 28 February 2025.

• [8] Following the trial there were negotiations towards making the Applicant permanent. He was initially offered full-time work on a salary of $57,500 per annum (inclusive of superannuation), with a target of achieving 12 briefs for March, and payment of $1,000 per brief (inclusive of superannuation) for five briefs collected in February if those briefs proceeded to sales. The Applicant raised concerns about the contract terms, including the definition of "warm leads," criteria for briefs worth less than $30,000, and the requirement for briefs to be fully in the pitching stage by 30 March. He proposed adjustments, such as counting smaller briefs as half-briefs and clarifying the definition of warm leads. Mr Kruss negotiated the contract for the company rejecting most of the proposed changes. The company wanted to focus on larger briefs (above $30,000) and insisted that briefs would only count if they reached the pitching stage.

• [9] The Applicant requested that the contract be for a short term applying only for March 2025, leaving future employment terms to be discussed at the end of the month. Expo agreed to this request and issued a revised contract for a fixed term covering March 2025 only. The final contract included a salary of $57,500 per annum (inclusive of superannuation), a target of 12 briefs for March 2025, $1,000 per brief paid once a minimum of six briefs was achieved, and additional conditions, such as a minimum value for briefs of $30,000, and briefs being fully in the pitching stage by 30 March. It also included a meal allowance of $100 per day for interstate travel and capped airport transfer costs. The Applicant signed the revised contract on 10 March 2025, and the fixed-term employment commenced on that date.

• [10] The Applicant was required to travel to Melbourne in the last week of March 2025. The usual practice was for Expo to make travel arrangements. The Applicant however insisted on making his own arrangements. On the evening of 18 March 2025 the Applicant had a WhatsApp exchange with Mr Kruss regarding travel to Melbourne. The exchange was in the following terms:

[18/3/2025, 8:21:02 pm] Ark: I'll send you the final price confirmations

[18/3/2025, 8:21:58 pm] Stan Kruss: Okay you need to fly into Melbourne on the first flight on the 22nd and fly out 27th at 2.55pm

[18/3/2025, 8:24:08 pm] Ark: Done! Will send you the details shortly

[18/3/2025, 8:24:36 pm] Ark: Would you like for me to have a car hire? Or just uber?

[18/3/2025, 8:25:08 pm] Stan Kruss: Just Uber, Ronnie will take you to and from Avalon each day

[18/3/2025, 8:25:24 pm] Stan Kruss: I told Rob you will be onsite on the 27th till 1pm

[18/3/2025, 8:25:52 pm] Stan Kruss: Jess will sort your accommodation tomorrow.

[18/3/2025, 8:35:24 pm] Ark: Great! Thank you for that Stan.

• [11] Mr Kruss explained that he was concerned about the exchange because he felt the Applicant was 'up to something', by which he meant that he felt the Applicant was not being honest with him in his plans for the work trip. Mr Batikyan did have other commitments, he said he had made prior arrangements with is partner and for that reason wanted to return to Sydney on Thursday 27 March 2025 rather than Friday 28 March 2025. Mr Kruss was concerned that a shorter trip was not in the best interests of Expo.

• [12] On 19 March 2025 at 8:47 am Mr Kruss sent a voice message to the Applicant regarding the trip telling him that "you should not think about it as a holiday" and "I expect you to do your calls and research after you attend the shows... you need to work every waking hour on this trip."

• [13] At 9:44 am the Applicant and Mr Kruss spoke regarding the trip and how the Applicant had booked the flights himself rather than in line with Expo's travel policy. In the course of that discussion the Applicant asserts that Mr Kruss said words to the effect of "all the leadership team complain that you don't follow instructions" and "you do not follow any instructions properly, are a misery to work with and make a mess out of everything". In the course of that conversation Mr Kruss informed the Applicant that he would no longer be required to travel to Melbourne.

• [14] At 9:51 am the Applicant forwarded to Mr Kruss the itinerary he had booked. At 9:58 am Mr Kruss sent the Applicant an email stating:

Thank you, as discussed you are no longer requires to go to Melbourne and you are expected to be in the office every day

• [15] Prior to the disagreement about the Melbourne trip, on the afternoon of Monday 17 March, Mr Kruss contacted Ms Esma, the company's IT coordinator, regarding the laptop of another employee who had recently left the company, Ms Narayan. Ms Esma responded on the morning of Wednesday 19 March 2025 informing Mr Kruss that the laptop was being used by the Applicant. At 11:07am Mr Kruss responded asking who had approved the Applicant to use the laptop. Ms Esma said that another staff member had told her the Applicant was using the laptop.

• [16] At 11:13 am Mr Kruss sent a message to Ms Esma in these terms:

"So speak with Karla and get Ark issued with a performance warning and make sure everyone is clear on the computer allocation process, did you allocate Ark Matt's laptop"

• [17] From 11:06 am the following text message exchange took place between the Applicant and Mr Kruss:

Applicant: I am getting myself early lunch to power through calls nonstop

Kruss: Yes I want to know approved you to touch Irene's laptop

I have never heard of a sales guy taking lunch at 11am this is prime calling time

I have told Danny to take both laptops and hook them up for Leandro, don't go near them till I approve it

Applicant: Are you just trying to intimidate and be rude to me? You're acting like I took your card, wen on a shopping spree, and as if it wasn't going to be spending my weekend time to go to for the work that you wanted me to do. I didn't ask for this. It was your idea. After my agreement to it with absolutely no security, you have decided to blast.... connected to the network. Matt's wasn't ready, so I took Irene's.

You don't even understand the problems you have caused by not following processes.

Applicant: I haven't done anything except booking the flights yesterday, the exact flights and airline you had asked me to book. Please enlist in detail what problems I have caused and I am more than happy to discuss them one by one either on text or email.

Applicant: Please enlist in detail what problems I have caused and and I am more than happy to discuss them one by one either on text or email.

• [18] Upon his return to the office the Applicant was taken to the boardroom where Mr Kruss was present by telephone. Mr Kruss dismissed the Applicant over the phone and he was escorted from the premises.

• [19] In the course of the Applicant's cross-examination Mr Kruss played a voice message that he explained was sent to the Expo leadership team composing six persons at 2:00 PM on 19 March 2025. It was in the following terms:

Hey guys just letting you know I've just fired Arck, effective immediately. Ark's done a lot of stupid things that I have tolerated, but I've just discovered that when we game him this job in terms of the BDM role, I let him...said he can have a laptop and he said I want Matt's because it's the best one. I said yeah, that's all good just get IT to back it up take a copy and set it up for you and then you can use it and and. So what I discovered in the last hour is he accessed Matt's laptop himself and did everything himself. And that's, you know, access to a huge amount of confidential information.

And then on top of that, he decided he wanted a better laptop than Matt's, so he's then taken Irene's laptop with no permission. Wiped that without any you know any proper you know any you know again IT not being involved. And then migrating himself to to that laptop. So that's that's one step too far. Well, it's probably 5 steps too far, so he's been terminated effective immediately. Thanks guys.

• [20] On the evening of 19 March 2025 Mr Kruss emailed the Applicant a letter of termination. The termination letter was in the following terms:

Subject: Termination of Employment

Dear Arkadiy,

It is with regret that due to serious breaches of policy, Expo Centric has made the decision to end your employment immediately, being 19th March 2025. It came to our attention and have subsequently conducted an investigation that identified, among other things, the following significant breaches were made:

• As stipulated in Employee handbook, Article 12.2 IT and Computer policy item II Unauthorised access to computing facilities will result in disciplinary action up to and including termination.

• Failure to comply with any reasonable instruction or direction, including any failure to comply with your obligations under any of the Expo Centric rules, policies, and/or procedures and any directions given by management.

• Accessed and continued to use the laptop of two senior staff without authorisation or following the IT protocol. All laptops issued to staff should be coursed through the IT team, and approval should be provided prior to the setup and device issuance and usage.

• You have taken company computers containing confidential and sensitive information out of the office without authorisation, posing a significant security risk.

• You also chose not to follow reasonable direction and take important calls from the CEO, which based on your role, was a significant breach considering the commercial position you held.

• We consider that due to your knowledge, training, and prior responsibility were aware of the requirements and importance of following these processes and ensuring the protection and integrity of our assets including its data.

• We also believe that due to the severity of this breach, Expo Centric had no option but an immediate dismissal, as warning may have allowed further exposure.

We wish to extend you the opportunity to respond to these findings, and your responses will be considered.

• [21] The following day the Applicant sent a lengthy response to Expo. In the response the said Applicant said the following:

a) That he used the laptop under the Mr Kruss' instructions for work purposes, denied accessing sensitive data or breaching IT protocols, and claimed his use of the laptop did not pose a security risk. > > b) He refuted allegations of failing to follow reasonable instructions, citing compliance with directions, including preparing for a work trip, and explained the reasons for missing calls from the Mr Kruss, and that he returned the calls promptly. > > c) He disputed claims of poor performance, highlighted his efforts to meet targets, and argued that his termination was timed to prevent him from achieving his goals and earning commissions. > > d) He questioned the validity of the investigation leading to his dismissal, claiming it lacked proper evidence and requested documentation related to it, including the Employee Handbook. > > e) Demanded payment for accrued leave, salary until the end of March, commissions for briefs brought in, and reimbursement for expenses, threatening legal action if these payments were not made.

• [22] Mr Ruffat reviewed the response and decided that as the Applicant failed to acknowledge that he had breached the computer policy and showed no accountability for his actions that reinstating the Applicant would risk exposing the business in the future.

• [23] The Applicant alleges that he was dismissed because he exercised a workplace right.

Part 3-1 of the Act provides protections from adverse treatment arising from the exercise of workplace rights. Section 340 relevantly provides:

(1) A person must not take adverse action against another person:

• [24] The Commission's role in a consent arbitration in which it is alleged that s.340 has been contravened was stated succinctly by the Full Bench in Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941:

[14] The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take 'adverse action' against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

• [25] Relevant to addressing these questions are the ancillary rules in ss. 360 and 361 which read:

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361 Reason for action to be presumed unless proved otherwise

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

• [26] The Full Federal Court in in Wong v National Australia Bank Ltd [2022] FCAFC 155 at [93] approved the following observations made at first instance in Wong v National Australia Bank Ltd [2021] FCA 671:

[81] Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: see Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31].

[82] Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act '... is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome': Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).

[83] In some circumstances, it might be possible to infer from evidence tending to show that a respondent's opinions were formed wrongly or unfairly - that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism - that those opinions either were not, in fact, formed or did not relevantly actuate the respondent's conduct (or both). Such circumstances might warrant the rejection of the respondent's evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

• [27] In Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 (Ermel), Bromberg J said at [48].

In a general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

• [28] Mr Batikyan relies on the negotiations surrounding his pay and conditions as constituting the exercise of a workplace right. He also contends that he was entitled to commissions if he worked until the end of March and the dismissal was to deny him those payments. Expo did not challenge that the Applicant had workplace rights, and I find that the Applicant had both exercised a workplace right in negotiating his contract and had workplace rights to commission payments. It is also common ground that the Applicant was dismissed on 19 March 2025 which constitutes adverse action.

• [29] The remaining question is whether Expo took adverse action against the Applicant for the prohibited reason that he exercised a workplace right, or for reasons which included those reasons.

• [30] Expo relied on the reasons given in the termination letter. Those reasons were that directed at the Applicant's unauthorised access to confidential company data by using two laptops previously used by senior managers, taking those laptops out of the office, failing to follow procedures, and failing to respond to communications from the CEO.

• [31] During the hearing Mr Kruss and Mr Ruffatt were cross examined by the Applicant. The Applicant was also cross examined. The focus of the cross examination was on the events of 18 and 19 March 2025. The Applicant's questioning went to justifying issuing himself the laptops, the lack of risk to the company by doing so and justifying his actions over the Melbourne trip. It was clear in that questioning that there was a strong animosity between the Applicant and the two managers. There was a need to interrupt the cross examination a number of times, as it descended into an argument. Similarly, when the Applicant was cross examined the parties proceeded to continue to argue. The argument was not about whether the dismissal was retaliation over the Applicant exercising or holing workplace rights, it was over the laptop issue and the issues surrounding the Melbourne trip.

• [32] Both Mr Kruss and Mr Ruffatt denied that the Applicant was dismissed because he exercised or had a workplace right. They were unmoved in their assertion that the reason for the dismissal was the breach of the IT policy regarding the laptops. That breach was considered by them to be a serious breach of policy that exposed the company to the loss of important confidential data. They both accepted that the booking of the flights, and the Applicant's attitude towards the Melbourne trip were also factors.

• [33] Mr Kruss was the decision maker. He is the CEO and sole shareholder of the company.

I accept his evidence as to the reason for the dismissal. I was not only convinced by his denials in the witness box. The documentary evidence indicated that as late as the night before the termination Mr Kruss was planning to fund the Applicant's travel to Melbourne. Whatever friction there had been up to that point, Mr Kruss said the Applicant's travel was an investment by Expo in his long term value to the company. The subject matter and tone of the communications between the Applicant and Mr Kruss on following day, the day of the dismissal is also telling. It was clearly hostile. The hostility arose due to Mr Kruss's displeasure at the Applicant's attitude.

• [34] At the hearing the Applicant conceded that he felt the felt the primary reason for the dismissal was the personal grievances between him and Mr Kruss. The concession was unavoidable given the way in which the hearing unfolded. The Applicant raised the unfair nature of his dismissal. He may have legitimate concerns about the manner in which he was dismissed. The dismissal may not have been procedurally or substantively fair. The conclusions reached by Expo about the Applicant's conduct on 18 and 19 March and the opinions it reached about him may well have been formed wrongly. It might be possible to infer from the evidence in the case that a Expo's opinions were formed wrongly or unfairly.

• [35] However, the inquiry here is not a broad inquiry as to whether the Applicant has been subjected to a procedurally or substantively unfair dismissal. It is whether he was dismissed because in February 2025 he exercised his workplace rights to complain about and renegotiate the terms of his contractor because in March 2025 he had an entitlement to commission payments. I find that he was not dismissed for these reasons. I find that he was dismissed for issuing himself with laptops that held confidential company data that he was not otherwise authorised to access.

• [36] Consequently, I find that the Applicant was not dismissed for exercising or having a workplace right and Expo has not contravened s. 340 of the FW Act.

• [37] For these reasons the application is dismissed.

[1] [2025] FWC 1451

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