Borgelt v 3E Zero Net Group Pty Ltd [2025] FedCFamC2G 1878

1. This is general protections claim where there has been agreement that the applicant had, and exercised, a workplace right as well as agreement that the employer committed adverse action by dismissing the applicant. The real issue in this matter is whether the first respondent has discharged its onus of proving to me that the adverse action was not taken for a prohibited reason.

1. The applicant, William Garth Borgelt, has had a professional career spanning over 50 years, 30 of which have been as a "C- level executive". In 2019, the applicant began an executive training business called "OurWorkplace" as a way to subsidise his income.
2. On 19 September 2022, the applicant started work as a business development manager for a company called Eco-save Australia. At that time, the general manager was a person by the name of Robin Archibald. The company was sold and became part of the Palisade group of companies. Eco-save Australia became the first respondent, 3E Net Zero Group Pty Ltd.
3. The applicant remained employed by the first respondent under the same contract of employment. However, his immediate supervisor soon changed to a person by the name of Emma Lucia. Mr Archibald stepped away from his position as managing director and slowly relinquished his role within the company, though he remained a board member and a member of the executive leadership team (ELT).
4. The new chair of the board (and executive chair) was the second respondent, Paul Graham Evans.
5. What became clear, during the course of the evidence in this case, is that the company was in dire financial straits and was trying to do what it could to turn the business around. As an aside, in April 2024 (which post-dates the events that concern this litigation), the first respondent went into voluntary administration. In July 2024, the company was able to come out of voluntary administration so that it is now a going concern and this matter has been able to be properly litigated.

The work relationship of the Applicant and Ms Lucia

1. For the applicant, his relationship with Ms Lucia did not go well. In his affidavit, at paragraph 13, he said:

[13] I found working for Ms Lucia difficult. Ms Lucia would micromanage me, provide me with confusing or conflicting directions and set deadlines for me which were impossible to meet and often times unnecessary. I found myself confused about what Ms Lucia expected of me and I had to ask Ms Lucia to clarify what her expectations were of my responsibilities on numerous occasions. Despite repeated request, Ms Lucia did not provide me with the clarification I was seeking from her as my manager. I felt stressed and anxious as a result of Ms Lucia's treatment of me. I was concerned that if her poor management was not addressed, it would ultimately interfere with me doing my job.

1. From the point of view of Ms Lucia, there were concerns with the performance of the applicant. One particular example epitomises the relationship between the two. The applicant had been working on a presentation which would be going to a potential client who would be investing $15 million into a project. Ms Lucia expressed concern and took a hands-on approach with this project.
2. Ms Lucia then sent the applicant some slides. The email that the applicant sent back is reproduced at annexure EL-1 of the affidavit of Ms Lucia (and reproduced at CB 398) and reads as follows:

Guys

Please find the template located here

Hollywood EnergyAuditPresentation June2023.pptx

There are far too many slides in this pack at present, and I am struggling with the presentation template 'feel' you are wanting Emma.

But I have copied the St John of God template slides across to be modified with the data by Byron

Emma, there are several slides for you to update based on our discussions.

Once you have both had a go at this, I can have another look at making compact and exec style

Please let me know after you have completed what you can do.

Kind regards,

Garth Borgelt

1. This email is one of many examples of the communication, between the applicant and Ms Lucia, being less than optimal. It is not the task of this Court to decide whether the applicant was in the right or whether Ms Lucia was in the right. Suffice it to say that Ms Lucia did not think much of the skills of the applicant or his ability to ensure that there was "growth" of the company, and the applicant did not think very much of the management skills of Ms Lucia.

1. There were other concerns about the applicant that are contained in the material before the Court, but which, it would seem, were never the subject of any discussions with the applicant.
2. On 10 July 2023, Ms Lucia had decided to send a letter to the applicant outlining her concerns. She sent a draft of this letter to the external HR consultant, Ms Davenport, and asked her for feedback on the letter. Ms Davenport did reply, though it would seem that Ms Lucia was somewhat frustrated by this reply. Ms Lucia sent an email to the second respondent which copied him in on the correspondence between herself and the applicant.
3. The main areas that Ms Lucia pointed out were:-
   • the company's expectations were not properly set out by previous managers causing the applicant to act in a way that is not compatible with what the company now needed to achieve
   • the applicant's ways of working were not aligned with the team that was being led by Ms Lucia
   • there were capability gaps in the skill set of the applicant
   • a concern that the applicant was still running his own business which caused Ms Lucia to suspect that the first respondent was not "getting one hundred percent of his time".
4. In the end, Ms Lucia sent the applicant an email on 13 July 2023, which did not raise issues with the performance of the applicant but did tell him what the company now expect him to do. The letter set out a number of key performance indicators (KPIs) upon which the company would be measuring the performance of the applicant.
5. It would seem that the applicant complained about this email to another manager, Byron Lynn, who then sent an email to Ms Lucia on 17 July 2023, which recounted the conversation that Mr Lynn had with the applicant.
6. The applicant himself sent an email to Ms Lucia on 18 July 2023. In that email, the applicant expressed that Ms Lucia had still failed to give him any clarity as to his role. The email, which is reproduced at CB 168, reads as follows:

I am confident in my ability to achieve growth targets, including my portion of the budget and more, and expect a commission structure to support this effort.

I simply want to get on with doing that, and without the feeling of being stifled, micro-managed and being controlled on administrative tasks.

However I cannot do this, and achieve your KPI's/ tasks as outlined below in 6 weeks. There is far too much work involved in the timeframe, although I will keep plugging away at it and make progress.

So after some navel gazing I ask myself what is it that I am doing or not doing that you feel the need for this level of management on someone who you acknowledge has vast experience?

I don't know the answer to this, because you have given me positive feedback and endorsement on the initiatives I have taken.

If this question clarifies things for you, please let me know.

Regardless, as communication is often a root cause of such symptoms, I am going to focus on communicating effectively and keeping you informed on material issues, in case I have not met your expectations in this area.

I will use another example, of which you are already aware of my position, to better explain some of my frustrations. You have stated that I am the health industry sector lead. I have marketed myself to this sector as such which has given me credibility.

Then for Hollywood hospital (in the presentation), you insisted on being presented as the client relationship manager. As leader you have the right to do this. If you think this project is of such importance to the business, that you need to transfer that role to yourself, I may be disappointed because it does infer that you do not have the faith or trust in me to fulfill such a role, but that is a leaders call, and I respect that.

However, after transfer of my credibility to yourself, you insist that I still manage the customer relationship. This is what I find untenable. If this role is of such importance that you must take over the customer relationship management, then you must manage the relationship with the customer. When you transfer the role (and credibility) away from me, but still get me to manage the relationship, you are denigrating my position to a Business Development Administration role. I did not sign up for that. I can live with either decision on who holds the customer relationship management role, but I can't live with being "half pregnant". You are still my leader if/when I am the customer relationship manager, and therefore you are positioned at a higher level of authority and credibility, which can be used to our advantage.

If you were to complete the training program/ mentoring outlined below, you would better appreciate why your current approach is untenable and leads to all sorts of organisational issues.

On another associated matter, you like many other executives, have a misguided understanding of 'purpose'. That is OK, because you like the many others don't yet know what you don't know in this area.

I have been fortunate, and as you are aware, prior to joining 3E group, I led an organisation of global organisational and leadership specialists in this area, and some of those specialists have guided me previously with great success in achieving growth when I led organisations far bigger than 3E Group.

It is a common mistake to think an organisation's purpose is to generate revenue or make money. Of course doing so is a vital necessity, but it is an outcome; It is not the purpose of 3E Group, the Growth department or even my role.

You are aware that I jointly own a company that delivers a training program in this and other associated organisational areas, but I am no longer active in this role since joining 3E Group. Additionally, I am at the tail end of my career, while you are young, smart, and with a career opportunity in front of you.

Given my access to these specialists, and my knowledge and experience in this area, I offer to mentor you in this narrow but important area.

To give you a taste, the link below is to just one video in our series on role clarity. I have published this on the website specifically for you and offer it free of charge or obligation, but will take it down again on COB Wednesday 26 July.

I am happy to help you directly in this area, for your own personal development which will support you throughout your career, as well as making 3E Group strong and resilient.

I ask that you watch this 7½ minute video, before our next catchup to further discuss the KP l's. (On the next 1:1 Teams meeting with Emma on 19 July, Emma admitted she had not watched this video, but it had only been a day)

The link is https://ourworkplace.co/emma Note that this is just one of nine videos in the series about role clarity. Earlier ones talk about vision; later ones about metrics; all associated with a role, whether it be the CEO or the cleaner.

At our 5 July meeting, you agreed for me to write my own PD based on my knowledge of the methodology used by these global specialists, as an example of what is needed to create role clarity.

There are many, many things you know that I do not yet know, particularly in the technical area of sustainability.

It just happens that in this organisational area, I know things that you do not yet know. I am not trying to usurp your control as my leader, but simply seeking that you rely on someone with more knowledge and experience in a particular subject matter.

I will willingly help you in this narrow but vital field. To help you personally and to help make 3E Group strong.

So in summary, with my experience in business development, I don't expect to be told in minute detail specific tasks on how to do things (unless of course I am making mistakes, in which case address those mistakes)

What I need is clarity on what you expect me to achieve, (or as you will discover, my EP's) and the areas or clients to focus on, and then let me focus on achieving that with the responsibility and matching authority.

Thankyou

Garth

1. On 24 July 2023, there was a discussion between Mr Archibald, Ms Lucia and the second respondent. In this conversation the three of them discussed the applicant's unwillingness to follow directions of Ms Lucia and the potential for this to interfere with negotiations with the Mount Isa City Council. The discussion contemplated dismissing the applicant if the poor behaviour and performance continued.

1. On 1 August 2023, the second respondent had a discussion with the applicant. The applicant sent the second respondent an email on 3 August 2023. This email is reproduced at CB 244 and reads as follows:

Hello Paul

Thank you for your time taken to listen to some feedback.

As promised, here is a link to a series of very short videos from Ourworkplace that better explain what Role Clarity really means, rather than a more superficial view.

https://ourworkplace.co/roleclarityseriestemp

This is temporarily published here for a short time; else you would have to go through the payment structure.

This video series forms part of a membership package but is provided specifically for you free of charge and without obligation.

I only ask that you stream the videos by clicking on each video in turn and not download them. And please do not share these, as the content is part of the intellectual property of Ourworkplace.

When we met on Teams, you made the point that a smaller organisation needs to be flexible, and individuals need to perform multiple roles. I agree with this absolutely, and multiple roles is a common requirement. But the role is not built around the person. As you will see in the videos, each of those roles will have a different purpose, different responsibilities and different outputs. When one person has to perform multiple roles, this is an expected requirement in smaller organisations, but they are effectively "changing hats" when doing so (each role having its own purpose)

This may make better sense after watching the videos.

I would appreciate your feedback on the value of the role clarity series, as the guys have just repackaged the conventional program into this short style video format.

PS. I still have not received my reimbursement.

Kind regards

Garth Borgelt

1. The second respondent testified (at paragraphs 33 and 34 of his affidavit) that:

[33] I shared these concerns as Mr Borgelt had emailed me on 3 August 2023 (after a discussion to similar effect on I August 2023) and appeared, to me, to be evangelising about this business. I considered our discussion and the email to be very strange and atypical. I thought he was, essentially, telling Ms Lucia and I how to run the business on the basis of principles developed by his wife's business, which I thought was both inappropriate and highly unusual.

[34] Having seen this response and no improvement in any areas which Ms Lucia and I were concerned about, I thought that he could no longer continue in his employment with 3E Net Zero and made the decision to terminate his employment.

1. The second respondent said that, even though the decision had been made, he still felt that it was prudent that he raise the matter with the ELT. The agenda for that meeting on 14 August 2023 is instructive. Under the heading "Garth", it reads (i), cover Mount Isa and work with MSA here: and (ii), cover ACES 2 here. The second respondent testified that "cover" was needed for Garth, in effect, because he was not going to be working for the company anymore.
2. The second respondent told the ELT, on 14 August 2023, that he intended to dismiss the applicant. There was agreement as to that course. This was corroborated by Mr Archibald.

Involvement of Ms Davenport and sick leave of the Applicant

1. The second respondent wanted some advice as to how to carry out the dismissal and so asked Ms Lucia to set up a meeting with Ms Davenport, the external HR manager. Ms Lucia contacted Ms Davenport on 15 August 2023 and, it seems, a meeting was set for the afternoon of 22 August 2023.
2. There is no evidence that the applicant was aware of these events. However, with regard to the concern that the applicant may be focusing on his own business to the detriment of the business of the first respondent, Ms Lucia sent out an email to her whole team on 16 August 2023. The email, which is reproduced at CB 462, reads as follows:

Hi Team,

Part of managing good governance for 3E Group is ensuring we have appropriate declarations of employees activities that could be perceived as a conflict of interest with existing work duties.

With the refresh in the ELT and the board we're taking the opportunity to ensure we're capturing this for our HR records.

For example, I sit on an advisory board with Citipower/Powercor/United Energy which is part of my disclosure.

If there is something you'd like to disclose, please advise the following.

• Role

• Organisation

• Time involvement

• Nature of the conflict (perceived or actual)

Can you each please email me individually and outline any paid or unpaid roles that you hold outside of 3E Group that could be an actual or perceived conflict.

This guide from the AICD can be a useful resource if you'd like to know more about what to disclose. If you're unsure happy to chat at our next 1:1.

Emma Lucia

1. The reply of the applicant is at CB 253, and the response of Ms Lucia is also at CB 253. These reads as follows:

Emma

While I am a Director of some privately owned companies, I have no conflict of interest with 3E Group to declare.

Kind regards,

Garth Borgelt

...

Hi Garth,

Thanks for that update however as I'm sure you're aware the with your multiple director hats on, disclosure needs to be much more extensive than the two lines you've provided below.

As requested, can you please provide the details of your directorships in line with the following:

• Role

• Organisation

• Time involvement

• Nature of the conflict (perceived or actual)

Many thanks

Emma Lucia

1. That reply was sent to the applicant at 8:47 AM on 17 August 2023.
2. The applicant testified that he became "increasingly unwell due to stress and anxiety". On that day, he said he went to see his GP and his doctor gave him a medical certificate which certified him unfit for work between 17 August 2023 and 23 August 2023. The medical certificate does not indicate what ailment was causing the need for absence from work and the applicant did not expand on this when he presented the medical certificate, by email, to Ms Lucia.
3. If the meeting amongst Ms Lucia, Ms Davenport and the second respondent did occur on 22 August 2023, it would seem that Ms Davenport wanted information regarding position descriptions and policies. On 24 August 2023, Ms Lucia sent that information to Ms Davenport. About three hours later, Ms Davenport replied. That reply is reproduced at CB 520 - 522.
4. It is instructive that Ms Davenport advised that the first respondent should ensure that the applicant was "no longer deemed to be unfit for work by his medical practitioner as we do not want to engage in any discuss (sic) around termination due to ill health". A draft letter of termination was also attached (reproduced at CB 528) which is almost a word for word copy of the actual termination letter (which is reproduced at CB 339).
5. The second respondent testified that, in any event, he did not feel that it was appropriate to dismiss the applicant while he was on sick leave and therefore decided to wait until the applicant returned to work to inform him that he was to be dismissed.
6. On 23 August 2023, the applicant took a further period of sick leave until 28 August 2023, also with a medical certificate. Again, the certificate did not identify the reason for the absence from work and again the applicant did not disclose to the first respondent what actual ailment prevented his attendance at work.
7. On the applicant's own evidence, Ms Lucia treated him compassionately and wished him well. She certainly did not pry into what it was that was ailing the applicant but respected his privacy.

1. The applicant submitted a claim to WorkCover on 24 August 2023, with a certificate signed by his general practitioner claiming that there was a diagnosis of work-related stress and bullying at work. This was sent to the first respondent on 25 August 2023.

1. On 30 August 2023, the applicant submitted a written complaint to the second respondent. That letter is reproduced at CB 317 and reads as follows:

Dear Paul

RE: Workplace Bullying

As you are aware, my doctor has initiated a WorkCover claim to cover medical expenses associated with treatment of workplace stress caused by bullying behaviour from my Leader (Emma Lucia).

I have also sought legal advice with a recommendation to initiate formal action through the Fair Work Commission to "stop the bullying".

I am aware of the potential damage such formal processes and claims of bullying may have on the reputation of 3E Group, so I have temporarily deferred lodging an application with the Fair Work Commission to stop the bullying. This was also due to the concern shown by you in your email of 25 August and initiating HR Intervention. I have not had any contact with this HR agency yet, but that may be because I am still on sick leave.

Since you will most probably not be aware of the bullying behaviours demonstrated by Emma towards me, I have documented below some examples, using the respective applicable criteria that the Fair Work Commission has defined as bullying behaviour.

In short, the Workplace bullying is evident under the following 4 definitional criteria

• giving employees impossible jobs;

• unreasonable demands, unnecessary pressure and impossible deadlines

• undermining a person's work performance, recognition or position

• inappropriate surveillance or monitoring

I have given Emma direct feedback on her behaviours (and that fall under these criteria), and which are about micromanagement, passive aggressive communications, diluting my credibility with clients, disengagement and jumping to inappropriate conclusions without investigation.

Attached to this letter is:

• Appendix 1 - Summarised examples of behaviour matched to the criteria the Fair Work Commission defines as bullying.

• Appendix 2 - Detailed notes of an early meeting with Emma where I detailed examples of her inappropriate behaviour.

• Appendix 3 - Copy of my actual email response to Emma on 18 July which again documents examples of behaviours and what I need from my leader.

• Appendix 4 - Some background and understanding at the time of my employment with 3E Group

I must stress that I have only experienced bullying behaviour from Emma, and have good relationships with all other staff in 3E Group. I also understand that while I may not personally agree with her strategies at times, she is the leader and entitled to give reasonable management directions which I will follow. Her competence or otherwise in this is quite a separate matter from her behaviours. I have nothing personal against Emma, just in her inappropriate behaviour towards me.

I have spoken directly and confidentially with Byron on 17 July 2023 seeking advice in managing my relationship with Emma. His advice was to ensure/ keep open communication, and if I can't get the clarity I am seeking, to feel free to escalate the matter to you.

You will recall that I spoke to you briefly on Friday 28 July and again on Monday 31 July 2023, which among other things, spoke of organisational issues happening in your company that you were probably not aware of. I discussed my issues of not receiving role clarity and a summary of some problems in this with Emma. I stated that I didn't think Emma even understood what role clarity even means. I offered you an opportunity to review a role clarity series of videos that my associated other business had produced, which you welcomed. (Note that I am not the only one in 3E Group seeking clarity with their role)

While this letter appears quite detailed, it only covers a few examples of many other cases of inappropriate and bullying behaviour by Emma towards me at work. These are all supported in writing in the main by email and/or Microsoft Teams chat with some diarised notes.

I seek 3 things from you: -

• I want the bullying behaviour to stop. In spite of me tackling this behaviour directly with Emma as per the company grievance procedure, she has made no acknowledgement of or change to her behaviour to date.

• I want to return to work as soon as possible, but I ask for it to be psychologically safe to do so.

• I want my role clearly defined with responsibilities, authorities and expectations. (not motherhood statements which are outside my direct control)

I am now on the road to recovery, with an expectation of being fit for work again on Friday 1 September,2023 at the expiration of my current sick leave certificate. I am contactable on my personal mobile (0439 073 900) prior to that date should you wish to do so.

I look forward to hearing from you and will be pleased to discuss with you the best way forward.

Regards

Garth Borgelt

1. On 31 August 2023, the second respondent met with the directors of the first respondent to discuss the complaint made by the applicant as well as the decision to dismiss the applicant. The second respondent raised the fact that the applicant made a bullying complaint against Ms Lucia.
2. The second respondent testified that the reason he had this meeting was that he wanted to make an offer to the applicant to smooth the dismissal, but such an offer would mean that there would be an expenditure over and above what would normally be expected. Given the precarious financial position of the first respondent, the second respondent thought it prudent to ensure that he had the approval of all other directors before making such an offer.
3. The second respondent testified that he only mentioned the complaint and not the workers compensation claim to the board. He said that he did not mention this latter aspect because he was of the view that the insurer would take over that process and handle it like any other claim.

1. As previously noted, Mr Archibald was, at the relevant time, an executive director of the first respondent having previously been the managing director before the business was sold. He transitioned to being a non-executive director in December 2023 until he left the company in May 2024. He has no on-going role with the first respondent.
2. He was a member of the ELT at the relevant time. His testimony was that he was aware of the issues relating to the applicant through briefings he perceived as a member of the ELT. He said that his recollection was that there were attempts to manage the applicant's performance and behaviour, but they were not having any success.
3. He said that this led to discussion about the potential to terminate the employment of the applicant.
4. He said that the 18 July 2023 response of the applicant to the email from Ms Lucia raised significant concerns about the applicant's ability to meet the team's expectations for the role. Mr Archibald had a conversation with Ms Lucia and the second respondent on 24 July 2023. He recalled that the second respondent said that he may need to dismiss the applicant. Mr Archibald said that he would support the second respondent if he chose that option.
5. Mr Archibald was also present when the ELT met on 14 August 2023. He said that the second respondent said that he was looking to terminate the employment of the applicant and that no one voiced any opposition to this course of action.
6. Mr Archibald said that he was told that the applicant went on sick leave before the second respondent could speak to him and that the second respondent did not want to terminate the applicant's employment while it was on sick leave. Mr Archibald said that he agreed with that course.
7. Mr Archibald was also present on 31 August 2023 when the directors met to discuss the complaint of bullying that the applicant had made against Ms Lucia. In that meeting, the intention to terminate the applicant's employment was discussed as well as how best to progress that termination considering the bullying complaint that had just been made. Mr Archibald said that there was discussion about obtaining advice from the HR professional about the bullying complaint.
8. Mr Archibald said that the bullying complaint did not make any difference to the decision that had been made to terminate the employment of the applicant. He said that complaint was unrelated, and the decision had already been made.
9. Mr Archibald said that he also agreed with the proposal of the second respondent to make the applicant an offer for additional money above the standard termination terms if the applicant were to resign.

1. The applicant returned to work on 1 September 2023. He said he received a telephone call from the second respondent around 8:30 AM. He said the second respondent told him that he had read the bullying complaint sent to him on 30 August 2023, but he had not shared this with Ms Lucia. He said that he considered the relationship between the applicant Ms Lucia to be "broken and difficult to fix".
2. The applicant said the second respondent presented him with two options for terminating his employment.
3. The first option was a "mutual termination" which would involve payment of salary of one month as the notice period, an additional payment of salary of one month and a discretionary bonus of $10,000 if the Mount Isa project had a contract executed before Christmas. A mutual release would be entered into which required the applicant to drop the WorkCover claim and to work with the company in handing over client files.
4. The second option was an effective immediate termination.
5. The applicant said that he told the second respondent that he didn't agree that those were the only two options, but the second respondent told him that he needed to consider those options and choose which one he wanted before the end of the day.
6. The applicant said that he was making notes of the discussion during that time. He said that he had no intention of leaving his job and he was concerned that the second respondent would follow through with his ultimatum and dismiss him.
7. He said that at 4:04 PM that afternoon, he sent an email to the second respondent in response to the ultimatum that he had been given earlier that day. That email is reproduced at CB 177 and reads as follows:

Hi Paul,

I have taken some time to think about your "no commitment and no prejudice offer" to me on the phone this morning, which was:

1. we agree a mutual termination and you offer me:
2. 1 months payment of wages as notice, effective from today
3. 1 months additional payment of wages
4. Plus $10,000 discretionary bonus IF Mt Isa contract is executed before Xmas.
5. The mutual release which will require an obligation on me to

   1. Drop the workcover claim (for Bullying at work)

   2. Work with the company in handing over client work (files)

I note you indicated to me that the alternate to this is instant termination, effective today. I don't accept that these are the only options for me and I would like to return to work and continue in my employment. My intention in writing to you was to resolve my bullying complaint and to have a positive working relationship with my manager moving forward as I believe I have with all the team.

I appreciate that you haven't shared a copy of my letter of 30 August 2023 with my manager. I would be grateful for guidance from you and/HR on how to approach resolving these issues.

Regards

Garth Borgelt

1. The applicant said that the second respondent phoned him at about 4:15 PM but he missed the phone call. The second respondent left a voice message which, in effect, said:-

Hi Garth, it's Paul Evans here responding to your email. From my perspective, as I said this morning, I believe that the relationship between yourself and Emma has irretrievably broken down. And on that basis, my two alternative offers for you remain. From the sounds of your email today, you are rejecting the "without prejudice" proposal I made to you. I'd be grateful if you could call me to confirm that please. And if I don't hear back from you, then you know we will move to the second alternative a raised on the call as well and as discussed with your email. Call me anytime Garth, I am at the rugby league this evening, but I should be able to speak to you either before or after the game. Cheers, bye

1. Later that night, at 9:25 PM, the second respondent sent the applicant a letter via email advising him that his employment was terminated. That letter, reproduced at CB 179 reads as follows:

1 September 2023

Mr Garth Borgelt

Dear Garth,

Termination of employment and Notice Period

The purpose of this letter is to confirm the termination of your employment with 3E Group as Business Development Manager pursuant to Clause 6 of the Standard Terms and Conditions of the Employment Offer dated 12 September 2022. Your one month's notice is to be taken as Gardening Leave as defined below.

Your last day of employment with 3E Group will therefore be the end of the Gardening Leave: 1 October 2023.

We confirm that you will be on notice as "Gardening Leave" effective from Saturday 2 September 2023 to Sunday 1 October 2023. To clarify, "Gardening Leave" means that you will be paid during the notice period, and we note the following conditions during the period of Gardening Leave:

• You are not required to perform your normal duties during this period; however, you must be available or contactable throughout the entire period via the business mobile phone,

• You are instructed not to contact or communicate verbally or in writing with clients, suppliers, customers, agents or employees of 3E Group without the written permission of 3E Group,

• Your manager will contact you to complete a handover of your duties,

• You will continue to be paid your normal salary,

• Your leave entitlements will continue to accrue during this period, and

• You are still legally employed by the business and are unable to commence a job with a new employer.

We advise that payment of any outstanding salary, and accrued but untaken annual leave entitlements will be paid by direct deposit into your usual nominated bank account within 7 days of your final date with 3E Group.

3E Group reminds you that despite your contract with 3E Group being terminated as of 1 October 2023, you remain under a contractual obligation to refrain from disclosing to any person or entity, or from otherwise using, Confidential information gained during your employment with 3E Group, pursuant to Clause 8 of the Standard Terms and Conditions of the Employment Offer dated 12 September 2022. We also remind you that despite your contract with 3E Group being terminated as of 1 October 2023, you remain bound by your contractual obligations with respect to Restrictive Covenants pursuant to Clause 12 of the Standard Terms and Conditions of the Employment Offer dated 12 September 2022.

Please ensure that you return all Company property in your possession or control to the Clayton office by close of business on or prior to Friday 29 September 2023 to James Brooke, CFO.

We thank you for your service with the company.

Yours sincerely

3E Net Zero Group Pty Ltd

Paul Evans Executive Chair

1. The applicant did not return to work and his employment ended as at 1 October 2023.

1 September 2023 - version of the Second Respondent

1. The second respondent gave very similar evidence, except for one important matter.
2. The difference is that the second respondent claims that he did not say that the mutual releases would involve the applicant dropping his WorkCover claim. The second respondent testified that he said that the mutual releases would involve a cessation of any claims against the first respondent and that the applicant would confirm that he had been paid all he was owed.
3. The second respondent testified that the applicant told him that his offer was "manifestly inadequate" and that at his age, it was hard to get work. He said that the applicant told him that he still has much to offer the first respondent. He said that the applicant told him that he believed that he had been treated badly and had a strong claim for compensation. The applicant told him that his daughter and her husband were lawyers and that he believed that he had a very strong claim. The applicant said that his role was to lead customer interaction and that Ms Lucia had prevented him from doing that. The applicant said he thought that this action was "bullying".
4. The second respondent said that he asked the applicant if he were rejecting the offer and the second respondent explained that the alternative was that the applicant would be dismissed that day on the standard terms with no additional compensation or bonus. The second respondent said that the applicant told him that he was not rejecting the offer, but in order for him to accept it, it would need to be much larger.
5. The second respondent said that he asked again whether the applicant was rejecting the offer and the applicant said that he would reflect on it. The second respondent told the applicant that the matter needed to be wrapped up today and the applicant told the second respondent he would get back to him that day.
6. The second respondent immediately sent an email to Ms Davenport and the other relevant members of the ELT which covered his version of the conversation.
7. The second respondent said that he received the applicant's email later that day. The second respondent testified that although the applicant had incorrectly recorded that the second respondent required him to drop the workers compensation claim, he did not see any value in correcting the applicant as it seemed clear that the applicant was not going to accept any offer but, instead, wanted to return to work. The second respondent said that he thought that the terms of the offer then became irrelevant at that point.
8. The second respondent said that he rang the applicant and left a voice message just to confirm that the applicant was rejecting the offer. The second respondent accepted that the version of the voice message given by the applicant was accurate.
9. Because he did not hear back from the applicant, the second respondent sent the applicant the termination letter later that night.

1. There is no doubt that the applicant had the following workplace rights:
   • to take sick leave
   • to make an application for workers compensation
   • to apply to the fair work commission for an order to prevent him from being bullied at work
   • to make a complaint in relation to his employment
   • to lodge a grievance (under his employment contract)
2. There is no doubt that he exercised the right to take sick leave, make an application for workers compensation and to make a complaint in relation to his employment.
3. There is also no doubt that the applicant was subjected to adverse action in that he was dismissed from his employment.
4. The applicant claims that the first respondent threatened to dismiss the applicant from his employment because he exercised those rights, thus contravening s 340 of the FW Act.
5. The applicant further claims that the first respondent actually dismissed the applicant from his employment because he exercised those rights thus contravening s 340 of the FW Act.
6. The applicant further claims that the first respondent threatened and/or actually dismissed the applicant to prevent him from exercising his right to apply to the fair work commission or to lodge a grievance under his employment contract, thus contravening s 340 of the FW Act.
7. The applicant further claims that the first respondent threatened to take action that coerced the applicant not to exercise his workplace right to bring a WorkCover claim, or to stop proceeding with that WorkCover claim, thus contravening s 343 of the FW Act.
8. The applicant must prove that he was threatened with adverse action. It has been admitted that adverse action was actually committed, but it has not been admitted that there was any threat of adverse action.
9. Because of the provisions of s 361 of the FW Act, it is for the first respondent to prove that the dismissal was not taken for a prohibited reason.

1. The applicant has argued that the first respondent had threatened to dismiss the applicant. He claims that by threatening to dismiss the applicant, respondent has contravened s 340 of the FW Act.
2. There is a fundamental problem with this claim. The word "threat" has a dictionary meaning of being "a declaration of an intention, or determination, to inflict punishment or injury in retaliation for, or conditionally upon, some action or course". To prove a "threat" in Queensland criminal law, there must be proof that a person has stated an intention to cause detriment to another person with intent to prevent or hinder that other person from doing any act which that person is lawfully entitled to do, or with intent to compel that other person to do any act which the other person is lawfully entitled to abstain from doing.
3. In this case, the actions which are said to constitute a "threat", are the words used by the second respondent when he spoke to the applicant at 8:30 AM on 1 September 2023.
4. There was nothing in that conversation that constituted a "threat". The applicant was not asked to do, or not do, anything to avoid an inflection of punishment. The detriment was going to occur regardless of what the applicant did or did not do.
5. In other words, the applicant was always going to be dismissed; the question was whether he would be dismissed with some bonus payments or whether he would be dismissed with standard entitlements. This cannot be characterised as a threat. I agree with the contentions of the respondents that what the second respondent put to the applicant should be categorised as an "offer".
6. This means that any claim made by the applicant that there was a contravention of a section of the FW Act, constituted by a threat, cannot be made out. But, even if he could be made out that such words amounted to a "threat", the following reasons illustrate why the claim would still fail.

1. Pursuant to s 343 of the FW Act, a person must not threaten any action against another person with intent to coerce the other person to exercise or not exercise a workplace right. In this manner, the applicant alleges that the second respondent threatened him to drop the WorkCover claim.
2. There is a significant factual difference between what the applicant testified was said and what the second respondent testified it was said about the issue of the WorkCover claim. For the present analysis as to whether s 343 is enlivened, I am proceeding upon the premise that the applicant's version is correct.
3. For the reasons previously espoused, it seems to me that there was no threat. The applicant argues that the second respondent threatened dismissal if the applicant did not drop the WorkCover claim. There is simply no evidence of this. The dismissal was going to occur whether the applicant dropped the WorkCover claim or not. The applicant knew that there were only two options. This is why he was doing his utmost to try and convince the second respondent that there could be a third option, but the second respondent did not resile from the two options.
4. At best for the applicant, it may be seen as a "bribe" in that if the applicant dropped the WorkCover claim, he would be financially rewarded. This is reinforced by the applicant's own reaction when he told the second respondent that his offer was "manifestly inadequate". But a bribe is not coercion under the FW Act.
5. Even taking the matter at its highest, the claim of coercion cannot be made out.

1. As has been noted, there is only one area in which the parties disagree as to what was said during that conversation. They point of difference is whether the second respondent said that the mutual releases would mean that the applicant would drop the WorkCover claim or whether the second respondent said that the mutual releases would mean that the applicant would drop any claims regarding underpayments.
2. It makes little sense, and it seems quite illogical, for the second respondent to have any concern about the WorkCover claim. The WorkCover claim does not affect the first respondent in any material way. Any claim is assessed by the insurer and there is minimal, if any, input into the resolution of such a claim, by an employer.
3. It is therefore a legitimate query to ponder why it would be that the second respondent would say such a thing, however, it must always be borne in mind that the applicant does not have to prove why the second respondent might have said this, though he does have to prove that the second applicant did, in fact, say this.
4. The applicant points to the fact that the second respondent did not attempt to correct the summary of the applicant in the email of 1 September 2023 when the applicant wrote that the second respondent wanted the applicant to "drop the WorkCover claim for bullying at work". The applicant submits that the silence of the second respondent leads to the inference that he was confirming the accuracy of the summary of the applicant.
5. As has been previously noted, the second respondent said that he did not bother to correct this aspect because the applicant was going to reject any offer as he wanted the second respondent to offer a third option which allowed him to remain working for the first respondent.
6. Given that the second respondent was attempting to obtain a deed of release from the applicant, it is strange that (on the version of the applicant) the second respondent would not attempt to ensure that there were no other claims made against the first respondent. This would have to include any form of claim regarding the complaint made by the applicant on 30 August 2023.
7. The applicant, in his evidence before me, did not seem to draw any distinction between the WorkCover claim (made on 24 August 2023 and provided to the first respondent on 25 August 2023) and the complaint of bullying (made on 30 August 2023). These are two quite separate actions regardless of the fact that the origin of the claim may be the same as the origin of the complaint.
8. The distinction was well and truly noted by the second respondent because it was the complaint that caused him to meet with the directors on 31 August 2023 and why the WorkCover claim was not even mentioned at that meeting.
9. It seems to me then, that the most likely conversation to have occurred was that the second respondent wanted the deed of release to put an end to any form of action against the first respondent.
10. The fact is that the applicant had not commenced any form of action regarding the bullying complaint and had not given any indication that this was in his contemplation. He did not give any evidence that he was thinking of going to the fair work commission to ask for a "stop bullying" order or that he was thinking of any other form of action regarding the complaint of bullying.
11. I am of the view that the second respondent did not mention anything about the WorkCover claim in that conversation. I do not think that the applicant was dishonest in his recollection of the conversation, but I am of the view that he has been confused about the two quite separate matters and has believed that any mention of the complaint made on 30 August 2023 was also a reference to the WorkCover claim made six days previous to that complaint.

1. This means that any claim that the applicant has made that the first respondent dismissed him so as to prevent him from exercising his workplace right (to continue to press a WorkCover claim that he had made) cannot succeed. This is because the claim is based upon a conversation that, I have now found, did not occur.
2. Because the applicant did not give any evidence that he was going to lodge a grievance under clause 7 of his employment contract, any claim that the first respondent dismissed the applicant to prevent him from exercising that right (to lodge a grievance) cannot succeed.

1. The only claims remaining for the court to determine are these:
   • Whether the first respondent dismissed the applicant because he took sick leave from 17 August to 31 August; or
   • Whether the first respondent dismissed the applicant because he made a complaint of bullying on 30 August 2023; or
   • Whether the first respondent dismissed the applicant because he made a WorkCover claim on 24 August 2023.
   • Whether the first respondent dismissed the applicant to prevent him from applying to the fair work commission for a "stop bullying" order.
2. It seems that the applicant is really only "putting the respondents to proof" regarding these matters. As I noted at the beginning of these reasons, the onus is on the first respondent to prove to me that the dismissal of the applicant was not for a prohibited reason.
3. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, the High Court (French CJ and Crennan J) said:

[42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).

[43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the Respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.

[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity."

1. In this case, the first respondent relies upon the evidence of the second respondent and Mr Archibald.
2. The second respondent gave evidence that he had made the decision that the applicant could not continue in his employment around 3 August 2023. Even though he had the power to make such a decision, given the position of the company financially and otherwise, the second respondent said that it was more prudent to ensure that he had the backing of the ELT in making such a decision.
3. This means that the decision to terminate the employment of the applicant was made by 14 August 2023. This is the clear evidence of both the second respondent and Mr Archibald.
4. The applicant contends that the Court would not accept that evidence because there was no action taken on 14 August 2023 to dismiss the applicant. The applicant points to Ms Lucia sending out the email, regarding conflict of interest, on 16 August 2023. The applicant has rhetorically asked why such an email needed to be sent when the decision to terminate had apparently already been made.
5. The applicant took leave from 17 August 2023 to 31 August 2023. No action was taken against him during this time.
6. The applicant made a WorkCover claim on 24 August 2023 and made a complaint about pulling on 30 August 2023. It was not until he returned to work on 1 September 2023 that he was actually dismissed. And even then, he was not dismissed until it was that he rejected the offer of the second respondent.
7. The applicant submits that, upon this timeline, and these facts, the court would not be satisfied that the first respondent has discharged its onus.

1. I accept the evidence of the second respondent. It makes logical sense and has the golden thread of truth running throughout his testimony. In looking at all of the interactions between the applicant and Ms Lucia, and even the email sent by the applicant to the second respondent on 3 August 2025, it is clear to see why the second respondent came to the view that the applicant's ongoing employment was simply not sustainable.
2. That does not mean that the applicant was necessarily wrong in what he was saying, or that he was wrong in the views that he had as to either how the business was being run or how Ms Lucia was managing her staff. But the conflict between the direction that the company wanted to go and the attitude of the applicant was never going to allow smooth sailing for the company.
3. Given the precarious standing of the company, both financially and in the marketplace, it was prudent of the second respondent to ensure that he had support for the decision that he wanted to take. That decision was ratified on 14 August 2023 and it took into account more information than was known on 3 August 2023 (the information regarding the LinkedIn profile of the applicant).
4. The second respondent, again being prudent, wanted HR input as to how to properly effect the implementation of that decision to terminate the employment of the applicant. That HR advice did not get to the second respondent until 24 August 2023, and by that time the applicant was on sick leave.
5. It was the advice of the HR consultant that any termination should not occur while the applicant was on sick leave, but in any event, the second respondent did not believe that it was "proper" for such action to occur whilst the applicant was on sick leave.
6. The only conclusion that can be sensibly made is that the dismissal was not made because the applicant was on sick leave. In reality, the applicant was benefiting from being on sick leave, though he certainly could not have known that, at the time.
7. The first respondent becomes aware, on 25 August 2023, that the applicant has made a WorkCover claim. This has no discernible impact on the first respondent as the matter is to be handled under the statutory scheme by the insurers.
8. The applicant made a bullying complaint on 30 August 2023. The second respondent did not think that there was any merit to this complaint. He said that he did not affect the decision that had already been made.
9. In that complaint, the applicant said that he had taken some legal advice as to whether he might go to the fair work commission to ask for a "stop bullying" order. This was not something that was mentioned by the second respondent in here affidavit nor was he cross-examined about the matter by the Counsel for the applicant. I infer that this specific aspect was attuned under the whole complaint made on 30 August 2023.
10. The applicant returned to work on 1 September 2023 and was dismissed.
11. The second respondent did offer some "walk away" incentives to the applicant but the applicant refused those incentives. The applicant was put on "gardening leave" for the whole of his notice and the applicant ceased employment on 1 October 2023.
12. To my mind, there is nothing in any part of the evidence that has put in this version of events in any doubt.
13. When it was put to Mr Archibald that he was only now saying what he was testifying (that the bullying complaint made no difference to the decision to dismiss the applicant) because that was important to the first respondent, Mr Archibald gave the reply "I don't know whether it's important. I'm just here to tell you what I know and what I heard. It's up to others to decide whether that's important or not".
14. This is one of the most honest replies that one might hear in a court, because the witness has done exactly what a witness needs to do; that is, answer the question truthfully regardless of what impact the witness may, or may not, think the answer will have upon the ultimate decision.
15. Even counsel for the applicant conceded that if I were to accept the evidence of Mr Archibald, the applicant could not succeed. This is because Mr Archibald's evidence corroborates the evidence of the second respondent who has testified that the decision to terminate the applicant was made before the applicant took leave, made a WorkCover claim and made a bullying complaint or mentioned that he had taken legal advice about going to the fair work commission.
16. I conclude that the first respondent has discharged its onus improving to me that the dismissal of the applicant was not because he took sick leave; nor was it because he made a WorkCover claim; nor was it because he made a bullying complaint; nor was it because the first respondent wanted to prevent the applicant from going to the fair work commission.

1. I order that the application filed on 27 November 2023 be dismissed.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.