Estonina v Woolworths [2026] FedCFamC2G 611

1. Mr Estonina, who is not legally represented, has filed many documents in the 307 Proceeding, the 1025 Proceeding, and the 1399 Proceeding; and on many occasions he did so without reference to orders I made for the filing of documents.[1] Moreover, the documents Mr Estonina filed are difficult to understand. The difficulty arises from: Mr Estonina's manner of expression; Mr Estonina's not annexing to his affidavits documents in their entirety but instead annexing extracts from such documents; Mr Estonina's adding submissions and commentary to the extracts of documents he annexes to his affidavits; and the number of documents Mr Estonina has filed, which makes it difficult to piece together the facts or alleged facts on which Mr Estonina relies.
2. These difficulties impose a significant burden on anyone who seeks to understand the material on which Mr Estonina relies, and the cases Mr Estonina seeks to advance on the basis of that material; and in many cases, particularly in the 1399 Proceeding, the difficulties render it near impossible to understand the allegations Mr Estonina makes, and the claims he intends to make on the basis of those allegations. The only means by which I can attempt to make sense of the material on which Mr Estonina relies, and the oral submissions Mr Estonina has made, will be first to set out, in a chronological order, the events recorded in the documents Mr Estonina has annexed to the affidavits and other documents he has filed, and allegations of fact Mr Estonina makes in those affidavits and the other documents he has filed. I will then separately attempt to identify the claims Mr Estonina makes in each of the 1025 Proceeding and the 1399 Proceeding, and consider whether he has no reasonable prospects of succeeding on those claims.

1. Mr Estonina alleges that from 2019 to 5 February 2024 his employment with Woolworths was covered by an enterprise agreement known as the Woolworths Supermarkets Agreement 2018 (EA). Mr Estonina relies on cl 2.4 and cl 2.6, which provide:

2.4 Behaviours such as harassment (including sexual harassment), workplace bullying, violence and unlawful discrimination are unacceptable and will not be tolerated at Woolworths. Any instances of inappropriate workplace behaviour should be reported to Woolworths - team members are encouraged to speak up if something is not right. Woolworths will take complaints seriously and handle them in accordance with our policies and procedures. This may include an investigation and the taking of disciplinary action.

. . . .

2.6 Team members should always feel free to ask questions, provide feedback and to speak up when they feel that something isn't right. Team members can speak to their manager, contact Woolworths People Advisory or consult the Code of Conduct for more reporting options.

1. Mr Estonina also relies on Part 22 of the EA, which is headed "Resolving Disputes". It covers disputes between a team member or members and Woolworths, including a dispute in relation to a matter arising under the EA or the National Employment Standards. Clause 22.1 provides:

1. A dispute between a team member (or team members) and Woolworths, including a dispute in relation to

1. a matter arising under the Agreement; or 2. the NES;

should be discussed in first instance at the workplace level between the team member (or members) and their relevant supervisors or management.

1. At any stage, Woolworths and a team member or team members may appoint another person to accompany and/or represent them for the purposes of this clause, including a trade union listed in clause 1.3.
2. If the dispute remains unresolved, the dispute may be referred to Woolworths People Advisory for it to be escalated to an appropriate representative of Woolworths to assist in resolving the dispute, which may be a more senior member of management or a representative from the Woolworths Culture & People team.
3. If, following escalation under clause 22.1.c, the dispute remains unresolved then the matter may be referred to a senior representative of Woolworths (such as the relevant Employee Relations Manager, Head of Workplace Relations or General Manager) for further discussions.

1. Paragraph (a) of cl 22.2 provides that, if the dispute still remains unresolved, either party to the dispute may refer the dispute to the Fair Work Commission (FWC) for resolution.
2. Additionally, Mr Estonina relies on a section of Woolworths's Code of Conduct, which includes the following:

Our Code of Conduct

Identifying Inappropriate Behaviour

3. Sexual Harassment

Sexual harassment of team members, customers, suppliers or others is not acceptable. Sexual harassment is any uninvited, unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct, or unreciprocated behaviour of a sexual nature that a reasonable person would anticipate may humiliate, offend, embarrass or intimidate another person.

This includes (but is not limited to) the following conduct, which may occur during or outside of work hours:

Requesting, sending or showing sexual or offensive pictures or messages (including by phone or on social media)

1. Mr Estonina further relies on a document titled "Safety, Health and Wellbeing Policy" Mr Banducci signed on 29 August 2023 as "CEO Woolworths Group". That document provides as follows:[2]

We care about the physical and psychological safety and health of our customers, team and business. We are committed to creating a safe work environment, where people arrive home from work and shopping free from injuries and illness.

We believe

• Being proactive is better than being reactive

• Nothing is so important that you cannot take the time to do it safely

• It is okay not to feel okay, and it is absolutely okay to ask for help

• We are all accountable for a safe work environment.

We will

• Set measurable objectives and targets to achieve higher standards through continuous improvement

• Effectively consult, co-operate and co-ordinate activities to create a safe work environment

• Provide resources and apply risk management processes with an emphasis on elimination controls

• Provide relevant information, training, instruction or supervision

• Comply with relevant laws, external requirements and our processes.

There will never be an acceptable reason to not comply with work safety and health legal obligations or our safety and health standards, policies, procedures and processes.

We all want to go home safely every day, our families and friends depend on it.

Please let's make this commitment a reality

1. On 29 June 2022 Mr Estonina reported to his direct manager that he had COVID-19, and also reported to his direct manager the available balance of Mr Estonina's leave. Mr Estonina says he "was unpaid unjustly on the week pay run", and although his direct manager said he would fix it, that did not occur.[3] On 23 September 2022 Ms Hampson from "People Advisory" sent the following email to a Woolworths email address:[4]

I have spoken to Leela Warren today in regards to personal/annual leave not being paid to Marc Anthony Estonina 124611 while he was isolating due to Covid.

I can see in Kronos that unpaid leave was used for 3 shifts. the Covid Leave QRC on the Wow People Portal it states the following -

I have tested positive for Coronavirus and I am currently seeking treatment and isolating, how am I paid?

Team members should use personal/carers leave.

If a team member has no personal/carer's leave available, they will need to take annual leave. long service leave or unpaid leave.

Please complete a Wage Calculation Form to correct the unpaid leave to personal/annual leave for the following shifts -

29.06.2022 - 4:00

30.06.2022 - 4:00

02.07.2022 - 7:00

Please attach the completed form to your reply to this email. once received I can then raise to the payroll team to have the correction completed.

The case number for today is 3048218

If you do have any other queries or need further assistance, please call us on 1800 008 584 option 5

1. According to an extract from a letter apparently dated 29 June 2023 from Woolworths's lawyers, Woolworths had already acknowledged it had incorrectly paid Mr Estonina for the period when he contracted COVID-19; and that his pay and leave entitlements were adjusted in September 2022 and January 2023. The extract also records that on 11 January 2023 Ms Quirk apologised to Mr Estonina for Woolworths's clerical errors, and confirmed that he would be paid for seven hours (as requested by Mr Estonina) without reduction from his personal leave balances. In his affidavit of 2 July 2024 Mr Estonina said that:[5]

In fact, if the "Leaders" under the regime of the CEO, just followed the 23rd Sept 2022 [as marked and annexed on "AMAE10"]official communication from "PeopleAdvisory", the explicit term in Workplace Policy HRMS-0564, Code of Conduct, then, this matter should have been fixed, but because of the alleged continued "Victimisation" against me, it was ignored.

September 2022 - Woolworths investigates Mr Estonina's conduct

1. Later in these reasons I refer to a letter dated 30 March 2023 that Mr Spiteri handed to Mr Estonina at a meeting he and Mr Estonina held on that day (Spiteri Letter).[6] At that time Mr Spiteri held the position of "General Manager - Operations NSW/ACT Woolworths Supermarkets". The Spiteri Letter referred to "the investigation into your own conduct in and around September 2022 which resulted in a final warning being issued". That appears to be an investigation in relation to a complaint that a Ms L Warren made. On 1 November 2022 Woolworths found the allegation had been substantiated.[7]

13 September 2022 - Mr Estonina reports sexual harassment that occurred in March 2019

1. According to a document Mr Estonina prepared headed "Timeline (Sexual Harassment)" (Timeline),[8] a "Sexual Harassment Incident" occurred. That is a reference to text messages a coworker sent to Mr Estonina on 9, 10, 16, and 17 March 2019, one of which contained a photograph of a male without any clothing above his waist. At 5.50 pm on 17 March 2019 Mr Estonina sent a text stating: "thank you but I'm not interested. I am straight. Please don't send me anymore photos". The coworker responded with "what r u talking about".[9]
2. On 13 September 2022 Mr Estonina sent to Mr David Wood, the store manager, a screenshot of the photograph Mr Estonina received from the coworker in March 2019, stating that "this is the harassment at that time". In a subsequent text he sent to Mr Wood, Mr Estonina said: [10]

i was scared bec store mgs was gay the official text is on my phone i decided at that time not to pursue because it will fall on deaf ears.... And i don't was to have someone lose their job imagine...if i send a half naked body of myself to a woolworth's employee... it would mean immediate termination of me". Mr Wood responded by stating they "can organise a time and discuss your matter when im back at work.

10 January 2023 - Mr Estonina had a face to face meeting with Ms Quirk and Ms Sirijovska

1. According to the Timeline, on 10 January 2023 the following occurred:[11]

Face to Face Meeting with HR/Employee Relations Mgr of Woolworths Grp Ltd "Grievance raise" "HR Manager told Employee 124611 "You had a "Shit Experience" (Foul/offensive Language was used) No apology was given at all

1. At 5.14 pm on 11 January 2023 Ms Quirk sent a message to Mr Estonina thanking him for his time in "last night's meeting", and requesting that, "as discussed", Mr Estonina provide the screenshots he showed Ms Quirk and Ms Juliana Sirijovska "of the correspondence between Bakery team member [J] for me to pursue further". Ms Quirk also requested Mr Estonina provide "the screenshots you showed me of correspondence between yourself and David Wood, notifying him of the correspondence between yourself and bakery team member [J]".[12]

11 January 2023 - Mr Estonina makes a complaint about the face to face meeting

1. On 11 January 2023 Mr Estonina submitted the following complaint through a Woolworths online portal (emphasis in original): [13]

Case number: 00319980

Subject: Minutes of Meeting 10 Jan: Intimidation and Foul/Offensive Language from Alexandra Quirk during the meeting

a. As per employee 124611 email to Ms Quirk on 6 Jan, Employee 124611 reiterated to be given a chance to voice out concerns but there are instances when Mrs Quirk suddenly interrupted and told Employee 124611 not to continue to voice it out.

Employee 124611 has reiterated to the 2 Woolworths representatives that this is the "first time for a face to face meeting after the many grievances" Woolworths reached out to give Employee 124611 (exclude the [SR/MU] meeting last 1 Nov as it was not a meeting but was more a "declaration/outcome result to Employee 124611" and was not given a chance to say other grievance.

1. It appears that the following document formed part of the complaint:[14]

e. Alexandra Quirk has told "face to face" Employee 124611 that "You are in a "SHIT" experience" The Word "Shit" is a foul and offensive language and should not be used whilst representing Woolworths on formal meetings. It is a breach of Woolworths Group Code of Conduct . Employee 124611 was shocked to hear it from a top official of Woolworths Group.

Even Employee 124611 reiterated this to Mrs Quirk after that incident of foul/offensive language but Employee 124611 only "spelled" it out to not make offense and even said "with courtesy, Alex that word. _ _ _"

. . . .

i. Employee 124611 has revealed another "incriminating evidence" against a "Leader of Woolworths" (breach of Woolworths Code of Conduct ....... are breaches and non-compliance by Leaders of the Organization/Employer and may lead to legal case against them or the Employer.)

Upon seeing the "incriminating evidence", Employee 124611 was shocked that Mrs Quirk gave Employee 124611 a "directive" to only "send this to her email address and no one else ( not even group compliance or people services)

Mrs Quirk did not ask if Employee 124611 was now OK , the question Mrs Quirk asked is if Employee 124611 followed it up to the said "Leader of Woolworths"

I'm quite shocked about this sort of inquiry from her, as Employee 124611 was the "victim"

In fact, the "Respectful Workplace Policy from Woolworths , HRMS-0660, effective date 09 Dec 2019 decrees or commands "as Team members above, Team Leaders, Managers, Supervisors are required to Treat all complaints seriously and with care, including taking action to deal with any conduct which is inconsistent with this policy in a timely and reasonable manner·"

I have reported to the said "Leader of Woolworths" and the message was he was going to get back to Employee 124611

But, this was not done by the said "Leader of Woolworths".

Employee 124611 tried to argue that it is best to include and report this to Group Compliance/People Services to be transparent and comply with Speak Up Policy of Woolworths

there was intimidation to SILENCE Employee 124611 by Mrs Quirk

j. The meeting ended up in session

12 January 2023 -Mr Estonina lodges a request for services with SafeWork

1. On 12 January 2023 Mr Estonina lodged a request for service with SafeWork NSW regarding an alleged psychological hazard at his workplace. By letter dated 16 January 2023 SafeWork NSW informed Mr Estonina that it had raised the particulars of Mr Estonina's request for service with Woolworths.[15] On the same day, Mr Estonina applied for leave of absence of a week due to "receiving the letter from SafeWork NSW" dated 6 January 2023.[16]

30 January 2023 - Ms Fajardo requests Mr Estonina to provide information

1. On 30 January 2023 Ms Sara Fajardo, who held the position of ER Capability Lead, sent to Mr Estonina an email in which she referred to an email she sent to Mr Estonina on 23 January 2023 by which (she said) she had sought to understand Mr Estonina's intentions with regards to concerns he had raised in emails he had sent earlier in the month.[17] Ms Fajardo continued:

Whilst I note you have not responded to my last email, we have since received correspondence from SafeWork NSW (ref 1-459267) in relation to a Psychosocial hazard you have raised with them. This particularly relates to "poor support from supervisors and managers and sexual harassment/sexual assault" you have stated you have unfortunately experienced in the workplace.

In the letter from SafeWork NSW. they have stated they will not be conducting an investigation of the issue raised but rather have suggested that Woolworths assess and respond accordingly.

Marc, we take concerns of this nature seriously and would like the opportunity to properly address them. I am aware that my colleague Alexandra Quirk has previously requested the relevant information to help facilitate an investigation. However. to date you have not provided the requested information. Unfortunately without a named respondent and a copy of the text messages, we will not be able to progress this matter further.

I now write kindly requesting that you provide any relevant information to me, including the name of the person who sent you the text messages and copies of the texts by 5pm on Friday 3 February 2023. Once we have this information, we will be able to investigate the incident further.

Lastly I would like the opportunity to remind you of the support that is available to you through Sander. Sander can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sander on 1800 234 561 or by downloading the Sander app on your device, from the Google Play or App Store.

Should you have any questions or wish to discuss this matter further, please do not hesitate to contact me.

1. Mr Estonina sent an email to Ms Fajardo on 30 January 2023. That is apparent from the following email Ms Fajardo sent to Mr Estonina on 8 February 2023:[18]

Whilst I appreciate your preference is for SafeWork NSW to investigate the matters raised . at this stage they have made their position dear that they will not be taking any action. As such, we will be undertaking a factual investigation into the alleged incident and we are investigating the delay that has occurred since you raised this matter with your previous store manager on or around September 2022. Marc, we are taking your concerns seriously and will be progressing the matter further. As previously advised, critical to the investigation into the alleged sexual harassment, we do require the name of the individual who sent you the text messages. Without this information, we will be unable to investigate that part of your complaint.

I kindly request that you provide the name of the individual who sent you the text message, the date you were sent the texts as well as providing copies of all messages you received. We ask that you provide this information by Monday 13 February 2023. If you would prefer to have a call or a meeting to provide this information, please contact me before Monday.

22 February 2023 - Mr Estonina meets with the Caringbah store manager, Anthony

1. It appears that on 22 February 2023 Mr Estonina had a conversation with Anthony, the Caringbah store manager, about a meeting Anthony said he was hoping to arrange at a suitable time at the Caringbah store, as Mr Estonina requested.[19] In an email sent to Mr Estonina, Anthony said:

I am now sharing in writing the purpose of this meeting and what will be covered.

• As you are aware. you have raised a number of matters to various Woolworths teams and individuals including in relation to an incident that occurred in 2019. I have been asked by the business to assist with this process and to provide you with an update.

• Sara Fajardo, ER Capability Lead will also be attending this meeting (virtually) to support the process. You too are at liberty to invite a support person should you wish. If you are intending on bringing someone please advise me in advance who that would be.

• In this meeting we will also work through the appropriate channels available to team members when raising any concerns and the best way to do this in order to achieve the most appropriate outcome.

I trust the above provides you with a guide on what we would like to go through today.

Marc, the intention is to have a respectful, professional and constructive discussion on how we are managing your concerns and I hope you will be open to attending the meeting· with all this in mind

It would [be] helpful from a planning perspective for you to confirm your attendance as soon as possible so we can arrange a mutually suitable time

1. Mr Estonina responded by email sent on 23 February 2023.[20] In the email Mr Estonina identified "6 [sic] points in reply" to Anthony's email:

(a) Woolworths has been selective in addressing issues; this "shows the Company's "double standards"" and "its direction in handling issues".

(b) Mr Estonina requested that Woolworths "specify the incident issue", noting that he knows "there is only one incident in 2019 but for formalities". Mr Estonina then asked whether that was "part of the Woolworths Employee Relations Procedural Fairness".

(c) Mr Estonina did not believe "in promoting /utilizing "Virtual Conference" from an attendee as meeting when matters to be discussed are very serious and grave".

(d) Mr Estonina requested a "formal letter on a company letterhead" from Woolworths "for the invite of the meeting but from someone who is higher up in the hierarchy". Mr Estonina requested two "Leaders", these being Ms Wedral, who held the position of Director (Team Experience), and Ms Todd, the People Director. Mr Estonina noted the following about the experiences he had with "Employee Relations/Team Experience":

Sammy Read meeting 1st Nov 2022 - abandoned and neglected Employee 124611 in relation to COVID payment, confusion about Team Experience and Employee Relations to handle LW case.

Alexandra Quirck meeting 11th Jan 2023 - Foul language used, suppressed Employee 124611's ability to raise issues etc. etc. etc.

Sara Fajardo - Employee Relations Manager who gave misleading information to Employee 124611 about SafeWork letter relation (check WOW Case # 03239540)

24 February 2023 - Mr Estonina forwards the complaint to Ms Fenske

1. According to the Spiteri Letter, Mr Estonina provided to Ms Fenske a letter dated 24 February 2023 in which Mr Estonina raised a number of complaints.[21] The Spiteri Letter described the complaints as follows:

(a) Safety concerns, these being the provision of safety cones or witches hats while staging meat pallets on the shop floor at the Woolworths Caringbah store; and the store's air conditioning unit, and concerns around plastics.

(b) SafeWork NSW Matters relating to psychological risks. That related to Mr Estonina having "raised two (2) matters relating to inappropriate behaviour by colleagues that caused a risk to [Mr Estonina's] psychological health", the first matter being in November 2022, and the other in January 2023.

(c) Outcome of investigation into Mr Estonina's conduct. That related to concerns Mr Estonina raised about the investigation Woolworths undertook in around September 2022 into Mr Estonina's conduct which resulted in a final warning being issued. Mr Estonina raised concerns about the investigation process, and whether procedural fairness was afforded to him.

(d) Personal leave when Mr Estonina had COVID. That related to concerns Mr Estonina raised in relation to leave he had not been provided when he had COVID.

(e) Ms Quirk using the word "shit". That related to Ms Quirk using the word "shit" on 10 January 2023.

(f) Written complaint from 2016. That related to a complaint letter made in 2016 concerning two individuals who previously worked at the Caringbah store.

30 March 2023 Mr Estonina meets with Mr Spiteri

1. On 30 March 2023 Mr Estonina met with Mr Spiteri and Ms Elaine Masrman, who held the position of "State People Lead". At the meeting Mr Spiteri handed to Mr Estonina the Spiteri Letter.[22] According to the letter dated 11 April 2023 to which I refer below, the following occurred:

At the Meeting, Matthew informed you that Woolworths had looked into various matters you had raised and taken steps to review or investigate them, as appropriate. You were advised that the matters had been addressed and were provided with an outcome for each of these.

Matthew also confirmed that as the matters had been addressed, no further action would be taken in relation to these.

Matthew also directed you to raise any future concerns you might have, with your line manager or Store Manager in the first instance, and to cease sending any correspondence about the matters discussed in the Meeting as they had been reviewed on more than one occasion and Woolworths considered them closed.

. . . .

Lastly you were advised that these directions were considered to be reasonable and lawful directions, and that failure to comply may result in disciplinary action being taken against you, up to and including termination of your employment.

1. The Spiteri Letter begins by referring to Mr Estonina's letter to Ms Fenske (which the Spiteri Letter identifies as the "Complaint") and that Ms Fenske had requested Mr Spiteri look into the concerns Mr Estonina raised in the Complaint. The Spiteri Letter stated that Mr Spiteri reviewed Mr Estonina's "previous correspondences", and he reviewed the concerns Mr Estonina raised specifically about [J], Mr Wood, and Ms Quirk, and has looked into "other items of concern" Mr Estonina had raised.
2. The Spiteri Letter then noted that at the meeting Mr Spiteri and Mr Estonina had "today", that is, 30 March 2023, "discussed the outcomes of various concerns [Mr Estonina] had raised since around September 2022 including in the Complaint". The Spiteri Letter then set out the outcomes that had been discussed at the meeting:

(a) As to the Safety Concerns, the Spiteri Letter stated that "[o]ur records support that both these matters were addressed by the Store and these safety concerns have been resolved".

(b) As to the SafeWork NSW Matters relating to psychological risks, the Spiteri Letter stated as follows:

2. SafeWork NSW Matters relating to Psychosocial Risks

Through SafeWork NSW you raised two (2) matters relating to inappropriate behaviour by colleagues that caused a risk to your psychosocial health. The first matter was in November 2022 (Ref 1-456015) and the other in January 2023 (Ref 1-459267).

As discussed in our meeting, both these matter have been investigated as follows:

1. SafeWork NSW was subsequently notified that steps had been taken to address your concerns and they corresponded with Woolworths confirming that they considered the matter closed.

2. With regard to the allegations of inappropriate behaviour by your colleague [J], towards you in 2019 and the concerns that David Wood had not taken steps to address the matter for 4 months, we confirm that a formal investigation into the allegations was undertaken. This was led by leaders within the business with support from Sara Fajardo, ER Capability Lead. The allegations were substantiated and disciplinary action was taken in relation to both individuals. Due to confidentiality obligations we cannot disclose outcomes but assure you the appropriate actions have been taken.

As such, we consider all Safework NSW matters to be closed and to date we have received no further correspondence from them.

(c) As to the Outcome of investigation into Mr Estonina's conduct, the Spiteri Letter stated:

A review of the investigation and process was undertaken by Alexandra Quirk. We also note that other leaders within the Employee Relations team have also reviewed the information. We are satisfied that a fair and thorough investigation process was undertaken and can confirm the outcome remains unchanged. Please understand that this matter will not be reviewed again.

(d) As to the Personal leave when Mr Estonina had COVID, the Spiteri Letter stated:

It was an unfortunate situation and we apologise for the inconvenience caused. We do note however that this was corrected and you were paid out of your own leave entitlements.

(e) As to Ms Quirk using the word "shit", the Spiteri Letter stated:

Ms Quirk did not say this word about you or towards you but was empathising

with the situation you had experienced and to demonstrate she understood things did not go to plan with your pay and leave last year. Notwithstanding, we do not consider this a breach of the Code of Conduct. In this modern day, it is a word that is not considered explicit.

(f) As to the Written complaint from 2016, the Spiteri Letter stated that the two individuals whom Mr Estonina alleged had acted inappropriately towards him no longer worked at Woolworths and, for that reason, no further action could be taken.

Reminder of Our Expectations

Separately, we would like to address the excessive number of emails you have been sending to several individuals and group inboxes. Whilst at Woolworths we do encourage a culture of speaking up and raising concerns, team members are required to do this in a respectful and professional manner. Since September 2022, you have sent approximately 90 emails to the People Advisory team as well as others. Many of these are repeated emails of the same issues and concerns.

The repeated and excessive volume of correspondence from you is not appropriate and could amount to harassing behaviour.

As discussed in our meeting today, you are being directed to raise any future concerns to your line manager or Store Manager in the first instance. If it is a matter they need support or guidance from another team such as Employee Relations or Safety, then your leaders will escalate this accordingly. You are also directed to cease sending any correspondence about the matters we discussed today and as outlined in this letter. Woolworths Group considers these matters closed and will not be taking any further steps in relation to these.

Please understand, the above directions are considered to be reasonable and lawful directions, and failure to comply with the directions may result in disciplinary action being taken against you, up to and including termination of your employment.

I trust the above confirms what is expected of you.

31 March 2023 - Mr Estonina sends email to Group Compliance

1. On 31 March 2023 Mr Estonina sent an email to Group Compliance in which he said he wished "to report twenty-three (23) "Key"" discussion points of the meeting he held with Mr Spiteri on 30 March 2023.[23]

11 April 2023 - Woolworths alleges Mr Estonina failed to comply with directions

1. On 11 April 2023 Mr Uydasoglu sent a letter to Mr Estonina in which it was identified what he claimed to be conduct Mr Estonina engaged in, contrary to a lawful and reasonable direction Mr Spiteri gave to Mr Estonina at Mr Estonina's meeting with Mr Spiteri and Ms Marman, State People Lead.[24] The letter referred to the directions Mr Spiteri gave to Mr Estonina at the meeting of 30 March 2023, and continued:

This direction was given to you in circumstances where, since September 2022, you have sent approximately 90 emails to the People Advisory team and other teams within the Group, many of which were repeat emails about the same issues and concerns. Matthew explained to you that the repeated and excessive volume of this correspondence was not appropriate and could amount to harassing behaviour. You remain entitled to raise matters of concern but were directed to first do so with your line manager or Store Manager.

1. The letter then identified what was alleged to be Mr Estonina's failure to comply with the directions Mr Spiteri gave him at the meeting of 30 March 2023, namely, on 31 March 2023 Mr Estonina's sending two emails to Group Compliance, Privacy and Mr Spiteri "in which you raised matters that had already been addressed with you". The letter invited Mr Estonina to provide a response by 17 April 2023, and to attend a meeting on 20 April 2023.
2. Mr Estonina sent an email on 11 April 2023 responding to Mr Uydasoglu's letter of 11 April 2023; Mr Estonina stated he would not attend the meeting.[25]

21 April 2023 - Woolworths sends letter confirming the finding of a failure to comply with lawful and reasonable directions

1. By letter dated 21 April 2023 Woolworths informed Mr Estonina that the allegation identified in the letter dated 11 April 2023 had been substantiated, and, under the heading "Outcome", stated:[26]

As a consequence of the findings of inappropriate conduct, this letter serves as a warning that if there are any further instances of any unacceptable behaviour, further disciplinary action may be taken against you, including termination of your employment.

Accordingly, you are directed to:

• raise any concerns to your line manager or Store Manager;

• refrain from sending any correspondence about the matters that have been addressed and closed out with you as per the letter issued to you on 30 March 2023, including to group inboxes;

• follow all reasonable and lawful management directions issued to you;

• ensure that your behaviour towards colleagues is at all times respectful and professional, regardless of your personal feelings;

• consider how everything you say and do might impact others; and

• behave in a manner which is consistent with the Woolworths Values.

As you are aware, all team members are, at all times, expected to comply with the Woolworths Code of Conduct, reasonable and lawful management directions and relevant Woolworths policies.

29 June 2023- Woolworths's lawyer responds to the letter of demand

1. It appears that on 19 June 2023 Mr Estonina, through a lawyer, sent a letter of demand to Woolworths. Mr Estonina did not annex that letter to any of his affidavits; but it is referred to in an extract from a letter apparently sent by Kingston Reid, the lawyers for Woolworths, dated 29 June 2023, which states:[27]

[I]n relation to the Sexual Harassment Complaint, your letter does not provide particulars. However, Woolworths has made enquiries, and we are instructed that this complaint likely relates to inappropriate behaviour towards your client by a staff member called [J]

1. According to a letter dated 22 September 2023 to which I refer in the following paragraph, Mr Estonina, at approximately at 7 pm on 30 August 2023 at the Caringbah Store, was involved in a verbal altercation with another Store Team Member and a Customer Service Team manager. According to a statement made by Mr Davinder Singh on 20 October 2023, he, as Night Duty manager, received a complaint from Mr Estonina in relation to a misunderstanding about the assignment of roles at the front end for staff; the proper way of following the correct leader/manager in the department, and there being "no proper introduction afforded by another staff from the Woolooware Store as being a Manager of Woolooware Store to Marc Estonina".[28]

22 September 2023 - Woolworths initiates investigation over incident on 30 August 2023

1. By letter dated 22 September 2023, Ms Wood, who occupied the position of "Product Owner - Team Matters", informed Mr Estonina that Woolworths had become aware of allegations regarding an incident that occurred on 30 August 2023 (30 August Allegations).[29] The letter identified the allegations as follows:
   1. You failed to treat Stephanie Rosevear and Melinda Mckenzie with dignity courtesy and respect when you spoke to them in a raised voice and aggressive tone;
   2. You stated words to the effect of "You shouldn't be here, you have a disability, you should be working at Civic" to Stephanie Rosevear;
   3. You continued to follow Stephanie Rosevear around the store in a threatening manner for around 15 minutes following the incident;
2. The letter stated that Mr Estonina was required to attend a meeting at 4.30 pm on 26 September 2023 to discuss the 30 August Allegations. That meeting occurred on 9 October 2023.
3. The letter also contained the following:

Confidentiality

It is important that you keep in mind that the Allegations and the investigation are confidential. You must not discuss this matter with any other person unless they are acting as your support person, particularly any other team members who may be involved in this investigation. Everyone involved in this process, including your support person is also required to keep the matter confidential.

Victimisation

I would like to remind you that it is unlawful for you to victimise or retaliate against any person involved in the investigation. To be clear, you are required to treat any person involved in the investigation with respect and courtesy at all times.

If you engage in any such conduct, or fail to keep this matter confidential, you may be subject to disciplinary action, up to and including termination of your employment.

1. Mr Estonina alleges that at the time he received the letter dated 22 September 2023, he contacted the store manager about the letter, but the store manager, being Mr Estonina's team leader, did not know anything about the letter.[30]

25 September 2023 - Mr Estonina's employment is suspended

1. In paragraph 14.a of the Applicant's Statement of Claim (ASC) filed on 4 December 2024 (to which I refer later), Mr Estonina purports to quote from the Form 8A Employer Response Woolworths lodged with the FWC in FWC matter C2024.757 the statement that "the suspension of the Applicant's [Mr Estonina's] employment commenced on 25 September 2024 [sic] and continued until termination of the Applicant's [Mr Estonina's] employment". Further, paragraph 14.a.7 of the ASC purports to quote another passage from the Form 8A, namely, that the "Applicant [sic] refutes the Applicant's allegation that he has been denied procedural fairness, and notes that the Applicant's employment was suspended in accordance with the Respondent's standard practices, and the suspension of the Applicant's employment was reasonable and lawful having regard to the circumstances".

1. At 12.57 pm on 27 September 2023 Mr Estonina's lawyer sent to Mr Estonina an email Woolworths's solicitor sent to Mr Estonina's lawyer at 12.33 pm on 27 September 2023 about an incident that occurred "last night", on 26 September 2023.[31] The email was as follows:

Further to our discussion, the details of the incident are:

• last night, an unknown man came into the Caringbah store and approached the nightfill manager and told her he was a 'mental health lawyer' and Woolworths 'needs to be nicer to Marc' and made some comments about suicide;

• the nightfill manager has had personal experience of suicide, with her son recently passing away due to this cause and was distressed and triggered;

• your client is aware of the nightfill manager's personal circumstances;

• our client has viewed the CCTV and observed that the man was observed speaking to Marc immediately before approaching the nightfill manager and that the man also touches the nightfill manager's tattoos during the interaction which has disturbed the nightfill manager further.

There is a clear implication that the man was known .to your client and was acting on his instructions which, if true, is clearly inappropriate.

Can you please ask your client to ensure that all communication comes through you?

1. On 4 October 2023 Mr Estonina sent an email to Woolworths in which he raised a number of complaints in relation to Woolworths's lawyer's email of 27 September 2023 in which he stated, among other things, the following:[32]

5. The details of the allegations/accusations communicated by Kingston Reid (representing Woolworths Group Limited) against an "Unknown Man" by Woolworths Group Limited has distressed Employee 124611 as it relates to Woolworths Group Limited accusations about inappropriate behaviour by an "Unknown Man" and relates to Woolworths Group Limited's influential assessment that Employee 124611 knew the Unknown Man which has prejudiced Employee 124611 to Kingston Reid Lawyers. Employee 124611 does not know the Unknown Man.

6. With 1 week passed (or about 8 days) without notification from a Store Level about the 26th Sept incident. Employee 124611 had no choice to report the matter to the NSW Police at involves a serious matter that needs to be investigated. The matter was reported to Miranda Police Station at about 7:30pm , 4th October. Constable T Williams. The gravity of the matter is that the "Unknown Man" is not at all identified by Woolworths Group Limited. The subsequent consideration also is the fact that there is an allegation by Woolworths Group Limited towards this "Unknown Man" of harassment towards a team member, which Employee 124611 does not condone.

7. I require a formal/official fetter signed from the Store Level (Woolworths Caringbah) within five (5) working days to provide elaborate reasons for these non-compliance of policies.

8. Escalation through the proper channels will follow should no acceptable communication explaining the non-compliance is not received from a store level after five (5) working days.

9 October 2023 - meeting with Mr Estonina to discuss allegations of misconduct

1. According to a letter dated 23 November 2023 from Woolworths to Mr Estonina (23.11.2023 Show Cause Letter), on 9 October 2023 Mr Estonina met with Ms Bidisha Wood, Product Owner - Team Manager, and Mr Chriss Devine, Employee Relations Case Specialist "acting as Company witness", to discuss the allegations of misconduct that had been made against Mr Estonina following an incident that occurred on 30 August 2023, and to provide Mr Estonina with an opportunity to respond.[33]
2. In an email sent to Group Compliance on 9 October 2023 Mr Estonina records what he claimed occurred at the meeting.[34] Mr Estonina made statements that included the following (errors in original):
   1. Mrs Wood has presented the introduction (e.g. purpose of this meeting, etc) and no outcome has been determined as yet;
   2. Mr Devine was present as a support person for Woolworths Group Limited but Mr Estonina (Employee 124611) did not bring a support person as the person was on holidays;

3. The said incident was on 30th Aug 2023 around 7pm,

1. Woolworths Group Limited has shown the CCTV of the incident;

2. On most of the video coverage, the line manager, Christopher Sergeant was in attendance during those discussions;

3. Employee 124611 has told Mrs Wood and Mr Devine, that Melinda McKenzie did not introduce herself properly or even the 1767 Store Caringbah Message Portal did not give notice about Melinda McKenzie to be in attendance at the store;

4. Employee 124611 believes that he was intentionally targeted to the responsibility of being a "Mentor" or "Buddy" by Stephanie Rosevear which she does not qualify to appoint as she is not a manager; Stephanie Rosevear has told Melinda McKenzie that Marc Estonina, (Employee 124611) should be the "Mentor", when there are more experienced Caringbah Staff Members who are working that night, Employee 124611 has just moved to Front End in the few months and has no qualifications or experience to fully be a Mentor / Budddy to new Staff.

Employee 124611 , on that night had to get the Adjustment Sheets to fill up as he requested permission from his line Manager to leave early (1 hr early).

Employee 124611, also mentioned that on that night he has welcomed and in courtesy the front end staff at Woolooware, but did not know of this Melinda McKenzie,

1. Employee 124611 has stated to both Mrs Wood and Mr Devine that there are multiple instances that Employee 124611 has said to "Please stop" to Melinda McKenzie;

2. A new Allegation was raised against Marc EStonina (Employee 124611) which was not on the 22nd Sept 2023 letter which has stunned Employee 124611 as it relates to a Facebook message Employee 114611 denies this allegatiions and is very....YP-Set about it .......

Therefore, Employee 124611 will be compelled to report to the NSW Police about th is as it is a serious breach and needs to be investigated as it shows that someone out there can manipulate facebook and make a defamation towards Emplloyee 124611

However, no evidence can be substantiated by Woolworths Group Limited, therefore, why did Woolworths Group Limited say this allegation if there is no substantiation?

Was it to offend Employee 124611???

1. Mrs Wood has strenuously stated that Employee 124611 is NOT ENTITLED to his own investigations on the meeting,

2. Employee 124611 has requested to seek an interview from the two (2) staff (Christopher Sergeant and Davinder Singh) who were the Line Manager and Duty Manager at that Incident;

3. It is incumbent on Woolworths Group Limited that Employee 124611 gets paid the minimum 3-hours for the meeting today 9th Oct 2023 as set out in EBA Agreement Signed by Caryn Katsikogianis (Chief People Officer) on 1st November 2018.

4. Due to allegations from Woolworths Group Limited that there is a breach of safety well-being against Stephanie Rosevear (Item #3 of the Allegation Letter), Employee 124611 will seek the assistance of NSW Police to compel Woolworths Group Limited to provide the CCTV on the night of to investigate if these allegations are true or not.

5. Violation of Section 2.1d and 2.6 as set out in EBA Agreement Signed by Caryn Katsikogianis (Chief People Officer) on 1st November 2018.

Employee 124611 will challenge the usage of "or'" by Woolworths Group Limited if Leaders of Woolworths are officially contravening these 2 sections of the EBA Agreement Signed by Caryn Katsikogianis (Chief People Officer) on 1st November 2018.

11 October 2023 - Mr Estonina sends "Vicarious Liability" document to Group Compliance

1. On 11 October 2023 Mr Estonina forwarded to the email addresses "groupcompliance@woolworths" and "peopleadvisory@woolworths" via the Wow Portal a document published by the Australian Human Rights Commission (AHRC) titled "Vicarious Liability". Mr Estonina deposed that no "external companies have contacted me nor any action from People Advisory which contradicts the Published "public reporting" and the fiduciary leadership duties and obligations of the Respondent".[35]

9- 20 October 2023 - Mr Estonina obtains statements from persons in relation to 30 August incident

1. Between 9 and 20 October 2023 Mr Estonina obtained statements from Mr Sergeant and Mr Davingder Singh in relation to the 30 August incident.[36]

25 October 2023 - Woolworths informs Mr Estonina of investigation of further allegations

1. According to the 23.11.2023 Show Cause Letter, on 25 October 2023 Woolworths notified Mr Estonina of its "investigation into further allegations of misconduct". Also according to the 23.11.2023 Show Cause Letter, after the meeting of 9 October 2023 Mr Estonina had sent the following correspondence:[37]
   • Email to Group Compliance cc People Advisory, Privacy Woolworths and Bidisha Wood dated 9 October 2023 at 3:53pm
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 9 October 2023 at 4:57pm
   • Email to Group Compliance cc People Advisory, Privacy Woolworths and Bidisha Wood dated 9 October 2023 at 10:40pm
   • Email to Group Compliance cc People Advisory, Privacy Woolworths and Bidisha Wood dated 10 October 2023 at 9:17am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Anthony Dalgleish and Bidisha Wood dated 11 October 2023 at 11:01am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Anthony Dalgleish and Bidisha Wood dated 11 October 2023 at 11:13am
   • Email to Group Compliance cc People Advisory and Privacy Woolworths dated 11 October 2023 at 12:16 am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 13 October 2023 at 10:04am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 13 October 2023 at 10:13am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 16 October 2023 at 4:20pm
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 18 October 2023 at 3:17pm
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 23 October 2023 at 9:32am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood and Anthony Dalgleish dated 23 October 2023 at 9:36am
   • Email to Group Compliance cc Murat Uydasoglu, People Advisory, Privacy Woolworths Bidisha Wood, Anthony Dalgleish and Chris Devine dated 23 October 2023 at 11:58am
   • Email to Group Compliance cc People Advisory, Privacy Woolworths, Bidisha Wood, Anthony Dalgleish and Chris Devine dated 23 October 2023 at 11:46am
   • Email to Bidisha Wood dated 30 October 2023 at 12:46am

23 November 2023 - Woolworths sends 23.11.2023 Show Cause Letter

1. On 23 November 2023 Ms Gray sent to Mr Estonina by email the 23.11.2023 Show Cause Letter.[38] That letter identified five allegations Woolworths investigated, and the outcome of its investigation.
2. The 23.11.2023 Show Cause Letter noted that three of the five allegations had been substantiated. One of the three allegations related to the incident that occurred on 30 August 2023. The 23.11.2023 Show Cause Letter stated:

Allegation 1

It is alleged that you failed to treat Stephanie Rosevear and Melinda Mckenzie with dignity, courtesy and respect when you spoke to them in a raised voice and aggressive tone;

During the Meeting, you denied this allegation and stated that Stephanie Rosevear should not have told Melinda McKenzie that you were the buddy to the team members undergoing training. You further stated that Melinda Mckenzie had not introduced herself and was not ( to your knowledge) within your management hierarchy and therefore did not have the right to give you orders.

After considering all of the information available, including your responses during the Meeting and in the Written Response along with CCTV footage, and witness statements, Allegation 1 was Substantiated

1. The second of the three allegations the 23.11.2023 Show Cause Letter stated had been substantiated was as follows:

Allegation 4

It is alleged that you have breached confidentiality, and failed to follow a lawful and reasonable direction to keep the Allegations and the investigation confidential by:

1. speaking to Christopher Sargent about the Allegations and/or the investigation;

2. preparing a statement for Christopher Sargent (Statement) and, on or around 20 October 2023, obtaining his signature on the Statement

3. speaking to Salma Zakaria and Christopher Sargent about matters pertaining to the Allegations and the investigation;

4. preparing a letter or affidavit regarding . . . matters pertaining to the Allegations and the investigation for Salma Zakaria and Christopher Sargent (Letter), and on or around 20 October 2023, obtaining signatures from Salma Zakaria and Christopher Sargent on the Letter;

5. On 23 October 2023 by email, providing a copy of the Statement to various teams and individuals within Woolworths Group, including Group Compliance, People Advisory, Privacy Woolworths and Anthony Dalgleish;

6. On 23 October 2023, by email, providing a copy of the Letter to Group Compliance, People Advisory, Privacy Woolworths and Anthony Dalgleish.

In your written response you indicated that you had not breached confidentiality by speaking with Christopher Sargent, as you believed him to already be involved in the incident. However we note that in our letter dated 22 October 2023, we specifically directed you that you were not to "discuss the matter with any other person unless they are acting as your support person, particularly any other team members who may be involved in this investigation". We further note that this was reiterated to you by Bidisha Wood in the meeting on 9 October 2023.

You further indicated that you had requested statements from Salma Zakaria and Chris Sargent, however, we note that in your email dated Monday 23 October 2023, you have stated that Mr Sargent agreed with the statement you had written.

After considering all of the information available, including your responses in the Written Response, and witness statements, Allegation 4 was Substantiated.

1. The third of the three allegations that was substantiated was as follows:

Allegation 5

It is alleged that you have failed to follow a lawful and reasonable direction to raise new issues with your Store Manager by:

1. escalating your email of 22 October 2023 to Anthony Dalgleish to Group Compliance, People Advisory and Privacy Woolworths;

2. Writing to Group Compliance, Murat Uydasoglu, People Advisory, Bidisha Wood and Chris Devine about your intention to raise issues with Jeanette Fenske.

We note that you did not provide a specific response to this allegation in your written response.

Accordingly, on the basis of the emails you have sent as outlined above, Allegation 5 is substantiated.

1. The 23.11.2023 Show Cause Letter further stated:

Unfortunately, this is not the first time you have engaged in inappropriate or unacceptable conduct during your employment. I also refer to the Final Warning that you received on 21 April 2023 (the Warning) due to similar conduct. In the Warning, you were reminded of our expectations that you raise any concerns to your line manager or store manager, follow all reasonable and lawful management directions, and ensure that your behaviour toward your colleagues is at all times respectful and professional, regardless of your personal feelings.

Furthermore, you were advised, in the Warning, that any further instances of inappropriate behaviour may result in further disciplinary action being taken, including the termination of your employment.

1. The 23.11.2023 Show Cause Letter then explained the outcome as follows:

Outcome - Show Cause

Marc, the substantiated conduct is serious and constitutes misconduct. Accordingly, the Woolworths Group has formed a preliminary view and is considering taking disciplinary action, including the termination of your employment. Prior to making a decision, we would like to invite you to provide any additional information or other factors you would like us to consider as part of the decision making process.

I ask you to provide a written response to Trudy Gray, who is the decision maker in relation to the outcome of this matter, at tgray2@woolworths.com.au by no later than 5pm on Monday 27 November 2023. If the Woolworths Group does not receive a response, a decision will be made on the information at hand.

When deciding the appropriate outcome, your written and verbal responses will be taken into account, as well as all of the information obtained as part of the investigation and your entire employment history with the Woolworths Group.

1. According to what I later described as the "Termination Letter", Mr Estonina did not respond to the 23.11.2023 Show Cause Letter until 2 January 2024; but even then, he only requested further information.

26 November 2023- Mr Estonina requests face to face meeting with CEO

1. On 26 November 2023 Mr Estonina sent the following email to "Group Compliance", "peopleadvisory@woolworths.com.au", and cmcnair@woolworthrs.com.au (errors in original):

It is with due diligence and great transparency as a staff member, employed by Woolworths for many many years that i engage/notify this email information to "groupcompliance@woolworths.com.au" as part of the "Team Member Speak Up and Protected Disclosure Policy" of Woolworths Limited.

On 11th October 2023, Employee 124611 has notified Woolworths Group Limited of 'Vicarious Liability" where Employers can be held legally responsible for acts of discrimination or harassment or breaches in workplace instruments or breaches in the law that occur in the workplace or in connection with a person's employment.

This is recorded on Wow Case # 03567693.

On the 16th Oct 2023, Employee 124611 has provided the Copy of the Stop Bullying Benchbook commissioned by the FWC to Leaders of Woolworths Group Limited as Notice that Employee 124611 is studying it.

. . .

I kindly seek for a formal face to face meeting with the CEO, Mr Brad Banducci for another opportunity for conciliation discussions in relation to FWC 2023.5354 as both parties did not reach any dispute settlement based on last Sept's FWC meeting. This is to exhaust all options before applying for Form 4.

As you can see imbedded images on the emails below, requests (escalation method via meeting or email) through sequential hierarchal levels have been applied by Employee 124611 and , unfortunately, were futile as there was no engagement at all by these Leaders of Woolworths Group Limited.

References of People Advisory Wow Case #s reflect receipt of notice, therefore , it is a job requirement for People Advisory Team to report this to the nominated Leader at that time, however, no engagement at all from these Leaders of Woolworths Group Limited

18 December 2023 - Mr Estonina sends letter to Mr Banducci

1. On 18 December 2023 Mr Estonina sent a letter to Mr Banducci in which Mr Estonina:[39]

(a) stated that on 26 November 2023 Mr Estonina had formally requested a meeting with the CEO "to be able to participate to "exhaust" all options towards a Conciliatory Conference activating Section . . . 2.2 [c](ii), or DRP (Dispute Resolution Procedure) of FWCA 7 Enterprise Agreement"; but Mr Estonina had not received an acknowledgement;

(b) stated that by the letter dated 18 December 2023 Mr Estonina was seeking to "get the CEO's consideration to participation towards a Conciliatory Conference to "exhaust" all options";

(c) identified the three matters that were before the FWC, noting that there would "further "new" matters" that were to be lodged;

(d) under the heading "Matters outside the FWC" referred to the following:

a. Safe Work 1-456015 (recorded on Wow case# 03059318);

b. Safe Work 1-459267 (recorded on Wow case# 03201387);

c. Safe Work 1-455758 (recorded on Wow case# 03048221);

d. Safe Work 1-455757 (recorded on Wow case# 03048217);

1. Safe Work 1-467498 (Alexandra Quirk of the PCBU received this from Safe Work);

2. Anti Discriminatory Body C2023-0360 (recorded on Wow case# 03328232, Marc Estonina has requested to close this matter due to the pre-requisite to Lodgement to FWC);

g. DEWR Submission 20 Apr 2023 (recorded on Wow case# 03329035);

1. Australian Cyber Security center CIRS-20231212-166 (Connor McNair of the PCBU received this on 13th Dec 2023);
2. Concerns Notice dated 16th Dec 2023 in relation to the "Unknown Man" Incident; (attached is the 4 page letter submitted to Connor McNair on the 1gth Dec 2023)
3. Initial submission to NSW Sutherland Police (re. "Stalking" crime, recorded on Wow Case# 03571382, however, Police is yet to receive lodgement by PCBU to formalize);

(e) under the heading "Escalation Process (Internal at PCBU) undertaken by Marc Estonina (Employee 124611)", set out the following (errors in original):

a. At the workplace levels (e.g. Direct Supervisor, Store Manager)

1. Requested via the People Advisory Team (requested multiple times but futile)
2. Requested via the Team Speak Up Policy, an External Company, independent of Woolworths Goup Limited that investigates disputes or any concerns, never existed);
3. Requested via Samantha Read, assigned HR Manager (requested multiple times but futile)
4. Requested via multiple Employee Relations/Team Managers (but to no avail)
5. Requested via Michael MacKenzie, General Manager of NSW (requested multiple times but futile) as per Section 22.1.d of the Enterprise Agreement AE501243 [Workplace Instrument HRMS-1611]
6. Requested via Natalie Davis, Managing Director (No Acknowledgement)
7. Requested via Jeanette Fenske, Director of Stores (No Acknowledgement from her);

(f) stated that "the "core" and "essence" of the formal letter to Mrs Jeanette Fenske . . . was focused on seeking a formal apology from Woolworths"; and

(g) stated that he sought the CEO's response by 27 December 2023.

22 December 2023 - Mr Estonina sends letter to CEO in relation to safety issues

1. On 22 December 2023 Mr Estonina sent another letter to Mr Banducci by which he sought:[40]

the following Occupational Health & Safety answers in relation to the decision of Woolworths Group Limited to commission the use of the "Single Handle" Milk Trolley by Rotacaster for use across all Woolworths Supermarkets for Milk Manual Handling. https://www.safetysolutions.net.au/content/materials-handling/case-study/rotatruckdelivers- a-milk-crate-solution-for-woolworths-36591902 Attached is a 3 page letter to Dorsa Vi.

1. This appears to be a reference to the "Safety concerns" to which the Spiteri Letter referred. That is apparent from the following passage of Mr Estonina's letter to Mr Banducci:

Escalation Method of Employee 124611 in raising the OH & S concern about the Milk Trolley

1. Through Direct Supervisor in 2020 ~ 2021;

2. Through the Store Manager in 2021 ~ 2022 ;

1. Item 16 of the Agenda during the Minutes of Meeting between Gen State Manager, Matthew Spiteri of Woolworths Group Limited, as recorded on Wow Case # 03307230 (dated 30th March 2023, Employee 124611 has raised the OH & S safety concern/injury about the current Milk Trolley design during the face to face meeting but no follow up or acknowledgement from the Woolworths Group Limited Leader and ignored the safety issue)

1. Mr Estonina requested Mr Banducci's response by 9 January 2024.

2 January 2024 - Mr Estonina responds to Show Cause Letter

1. As I noted above, according to what I identify later as the Termination Letter, Mr Estonina responded to the 23.11.2023 Show Cause Letter on 2 January 2024, in which he requested further information about the additional allegations of which the 23.11.2023 Show Cause Letter Mr Estonina was informed on 23 October 2023.

3 January 2024- Mr Estonina sends another letter to Mr Banducci

1. On 3 January 2024 Mr Estonina sent what Mr Estonina described as three official letters, these are being the following:[41]
   1. Reply about FSA (C2023-7199 Official Submission to the FWC by the Respondent) showing the Respondent's Intentional Suppression/Censorship of Information to the FWC (dated 3rd Jan 2024 given formally to Woolworths Group Limited); Annexure 1 (2 pages)
   2. Official Letter about the Respondent's False Testimonies to the FWC during the 29th Dec 2023 Official Conciliation Conference with the honourable Deputy President in attendance (dated 2nd Jan 2024 given formally to Woolworths Group Limited); Annexure 2 (2 pages)
   3. Reply about the 23rd Nov 2023 Official Respondent Letter (Invitation to Show Cause) (dated 2nd Jan 2024 given formally to Woolworths Group Limited); Annexure 3 (1 page)
2. Mr Estonina requested that Mr Banducci respond by 16 January 2024.

22 January 2024 - Woolworths sends letter to Mr Estonina

1. On 22 January 2024 Ms Gray responded to Mr Estonina's letter dated 2 January 2024 which he sent in response to the 23.11.2023 Show Cause Letter, and requested further information.[42] Ms Gray said that the information Mr Estonina requested related to additional allegations; but the information in relation to those allegations had been provided in the 23.11.2023 Show Cause Letter.

5 February 2024 - Woolworths terminates Mr Estonina's employment

1. By letter dated 5 February 2024 (Termination Letter) Woolworths terminated Mr Estonina's employment.[43] The Termination Letter, which was signed by Ms Gray, is as follows:

Further to our telephone conversation today, I am writing to confirm important information about your employment with Woolworths Group Limited. I attempted to discuss this matter with you by telephone today at 3.18 pm, however, you stated that you did not wish to continue the discussion.

Background

I refer to our letter to you dated 23 November 2023 (the Letter) detailing the findings of misconduct following our investigation into allegations made against you, and the opportunities provided to you to show cause why your employment should not be terminated.

As you may recall:

• We met with you on 9 October 2023 (the Meeting) to discuss allegations of misconduct made against you following an incident which occurred on 30 August 2023 (the Allegations) and provide you with an opportunity to respond.

• In a letter dated 25 October 2023, we advised you of a number of further concerns that had come to our attention, namely your failure to follow lawful and reasonable directions provided to you in letters dated 22 September 2023 and 30 March 2023 (the Further Allegations).

• You responded to the Allegations verbally at the meeting and were provided with an opportunity to do so in writing after the meeting. You were also afforded an opportunity to respond to the Further Allegations in writing.

• You provided us with further information by email in October 2023. This information is outlined in the Letter and was considered as a part of your response to the matter.

• In addition to outlining the findings of misconduct made against you, the Letter provided you with an opportunity to show cause why your employment should not be terminated.

• Woolworths paused the show cause process for a period of time in light of other matters raised by you in late 2023. You were provided a further, final opportunity to show cause why your employment should not be terminated by way of a letter dated 22 January 2024.

Opportunity to show cause

In the Letter, you were advised that, after considering your response to the Allegations during the Meeting, the Allegations that you had acted inappropriately, were substantiated. You were also advised that the Further Allegations with respect to your failure to follow lawful and reasonable directions provided to you by the Company, had been substantiated. Furthermore, you were advised that your behaviour was considered to be misconduct and was in breach of, including but not limited to, the Woolworths Group Code of Conduct. As you are aware, Woolworths Group team members are expected to comply with all policies at all times during their employment.

Given the serious nature of your misconduct, you were advised that the Woolworths Group was considering disciplinary action, including terminating your employment. You were invited to provide any further information you wanted us to consider in response to the Allegations, as well as any other information we should be aware of as part of the decision making process. This response was due by 5pm on Monday 27 November 2023.

I note that you did not provide a response to the Letter until 2 January 2024. In your response you requested further information with respect to the Further Allegations. We advised you in our letter dated 22 January 2024 that details of the Further Allegations were set out in our correspondence of 25 October 2023, and the findings in relation to these allegations were set out in our correspondence of 23 November 2023. We further advised you that findings had been made in relation to the Allegations and the Further Allegations, and accordingly no further information would be provided.

In our letter dated 22 January 2024, we offered you a further opportunity to tell us why we should not terminate your employment. You were asked to provide your response by 12pm on Wednesday 24 January 2024. You did not provide any response.

Outcome - Termination of Employment

Marc, the Woolworths Group has taken all relevant matters into account, including your responses to the Allegations during the Meeting, the findings of the investigation, your Response to the Letter, as well as your employment history and length of service.

In the circumstances, given the repeated nature of your behaviour despite having received a previous written warning, the Woolworths Group has decided to terminate your employment, effective immediately, as of 5 February 2024.

As set out in the Woolworths Supermarkets Enterprise Agreement 2018 your notice period is of 5 weeks' duration. You will not be required to work during your notice period, rather, we will pay you 5 weeks in lieu of notice. Accordingly, your last date of employment will be the date of this letter.

You are required to return all Company property that has been issued to you, by no later than Thursday 8 February 2024.

Please note, a certificate of service and your final three payslips will be emailed to you once your final pay is processed.

Please also remember that this investigation and the outcomes are confidential. You must not discuss it with any other employee (except someone who is acting as a support person for you).

24 February 2024 - Mr Estonina lodges request that SafeWork prosecute Woolworths

1. On 24 February 2024 Mr Estonina lodged with SafeWork NSW a Request for Prosecution against Woolworths.[44] Mr Estonina supported the request with a letter dated 24 February 2024 which, in turn, relied on a number of documents, including the Timeline.[45] Mr Estonina referred to "PsychoSocial Hazards/Issues" at his workplace; and he referenced four incidents. Mr Estonina said:

As stated on my original email to Safe Work NSW dated 25th Oct 2022, as a staff member, I have followed through the correct protocols in reporting these Psychosocial Hazards, and the response/action from my Employer have been inappropriate and misaligned from the Code of Conduct/Respectful Workplace Policies that the Employer have been and continuing to promulgate to a robust membership of over 200K personnel across Australia .

I believe that during these Sept 2023 onwards, the PCBU has "manufactured" claims to be able to penalize the Applicant and substantiate these to legally dismiss an employee. Thereby, weakening the focus on "Workplace Bullying and Occupational Health and Safety" Complaints by the Applicant as other matters are raised against him, thereby the realization of justice and Safety focus is quashed.

1. By letter dated 27 March 2024, SafeWork NSW informed Mr Estonina that it decided no further action was required.[46]

1. Mr Estonina has stated or purported to state his case in a number of documents.

1. I will begin with the Form 4 he filed on 24 March 2024, Part G of which is as follows:

As per Federal Circuit and Family Court Rules 30.06;

1. Applicant claims that the Respondent has contravened on Section 351 [Sexual Orientation and Age] of the Fair Work Act 2009 [FWC Matter C2024-444 D NSW C2023-0360]

2. Applicant claims that the Respondent, through Vicarious Liability, has acted on Section 343 [b] Coercion to exercise a Workplace Right in a particular way of the FW Act 2009;

3. Applicant claims that the Respondent has acted on Section 342 [1] [b], [c] and [d] Adverse Actions of the FW Act 2009;

4. Applicant claims that the Respondent has contravened on the Applicant's workplace rights as per Section 341 of the Fair Work Act 2009 by his disengagement of Sections 2.1 and 2.6 of the Workplace Instrument HRMS-1611 [ID# AE501243] which explicitly affirms legality of Workplace Policies = "HRMS-1373: Team Speak Up", and "HRMS-0564: Code of Conduct".

As per Res Judicata,

1. Applicant is seeking claim under Section 539 on contravention of Part 3-5A, Division 2 of the Fair Work Act 2009 (Cth) and Part 2-A of the Anti-Discrimination Act 1977 (NSW) [Due to the statute requirement of Section 734, Fair Work Act 2009]
2. Applicant is seeking judgement on Section 337BB in conjunction with Section 337BA of the Fair Work (Registered Organizations) Act 2009 against the Respondent;
3. Applicant is seeking judgement on the contravention of Section 180 [1] of the Corporations Act 2001 [CEO liability] carrying civil penalty provisions according to part 9.4b of the Corporations Act 2001 for the fallibility on exercising his authority;
4. Applicant is seeking deliberation on the contravention of Section 1308 clause [3], clause [4], clause [5], clause [6] and clause [8] [b] of the Corporations Act 2001 [CEO liability] for the lodgement of the 2023 Corporate Governance Statement to the ASX due to "false policy" proclamations to the public;
5. Applicant is seeking justice on the CEO's liability on acting on Section 108 [1] of the WHS Act 2011, carrying a Tier A Monetary penalty for the abandonment of Section 81 [2] of the WHS Act 2011 [Attn CEO, Milk Trolley Safety and other OHS matters raised by the Applicant which were blatantly neglected]

1. A second document in which it may be taken Mr Estonina has stated his case is the Genuine Steps Statement he filed on 25 May 2024 in which he alleges the following:

(a) On 26 November 2023 Mr Estonina initiated "the first escalation method of Conciliation Discussion" with Mr Banducci. He did so by email request "through the Workplace channel specified by the incumbent Enterprise Agreement [ID#AE1243], Workplace Policy [HRMS-0564], corporate website email . . . and the legal personnel representing the PCBU", but this was neglected.

(b) On 18 December 2023 Mr Estonina again wrote to Mr Banducci requesting a meeting. Mr Estonina has reproduced part of the message he sent to Mr Banducci; and it appears to be a complaint that another employee used the word "shit". From paragraph Y of the "Outline of Submissions" to which I refer in the next paragraph, it appears that the complaint was investigated, and the outcome of the investigation was reported in the following message Mr Spiteri sent to Mr Estonina on 30 March 2023:

Ms Quirk using the word "shit"

In the Complaint and in previous correspondence you raised concerns around Ms Quirk using the word "shit" in a meeting you both attended on or around 10 January 2023. Ms . . . did not say this word about you or towards you but was empathising with the situation you had experienced and demonstrate she understood things did not go to plan with your pay and leave last year. Notwithstanding, we do not consider this a breach of the Code of Conduct. In this modern day, it is a word that is not considered explicit

(c) On 22 December 2023 Mr Estonina again wrote to Mr Banducci. The message states that a "formal 3-page letter is received today . . . for [Mr Banducci] is attached".

(d) On 3 January 2024 Mr Estonina requested another meeting, but his request was ignored.

1. On 4 June 2024 Mr Estonina filed a document titled "Outline of Submissions" in which Mr Estonina states as follows:

(a) Mr Estonina was employed by Woolworths from June 2007 until 5 February 2024 when it terminated his employment.

(b) In the second half of 2019 Mr Banducci, as CEO, had written to all staff of Woolworths to reinforce the need "to comply with the Work, Safety and Health Legal Obligation on our Safety and Health Standards", "thereby committing his fiduciary duty".

(c) On multiple occasions Mr Estonina had "sought for resolution on formal complaints" Mr Estonina had escalated to the FWC which "the employer" refused to do.

(d) Mr Estonina was unfairly prejudiced with "the "Sexual Harassment" issue that was handled by the employer". Mr Estonina claims the employer allowed the "accused [sexual predator]" in the working environment, thus creating a hostile working environment; "Hostile Working" environment; there being "False investigation outcomes", and "Unbalanced reprimand/action that the employer afforded to the perpetrator compared to" Mr Estonina.

(e) There was direct discrimination based on age.

(f) Mr Estonina "lodged a FWC matter" apparently to review "incumbent Workplace Instrument . . versus previous Workplace Instrument" in relation to "the inclusion of an escalation to the CEO on the independent procedures", and reinstatement.

(g) Mr Estonina escalated to Mr Banducci "the "False and Misleading" testimonies that the employer has represented on the FWC matters" to "seek his "objective" and "unequivocal" stature as the CEO, but because of Mr Estonina's "age/sexual orientation" was ignored.

(h) By not responding to Mr Estonina's attempts at escalation Mr Banducci had "reneged" on the statement referred to in (b).

(i) Mr Estonina seeks "on multiple contraventions under General Protections sections of this Division.

(j) Mr Banducci "omitted/neglected Team Speak Up and Code of Conduct policies, claiming that was a contravention of s 50 of the FW Act and cl 2.6 of the Workplace Instrument.

1. In that document Mr Estonina makes the following allegations of fact:

(a) Mr Estonina's sexual harassment complaint made in September 2022 was neglected, in breach of cl 2.6 of the EA.

(b) Mr Estonina was victimised, worked in a hostile environment, "and even was told "SHIT" by the leader under the regime of the CEO".

(c) Mr Estonina's workplace right to escalate the dispute under cl 22.1(c) and (d) "was guillotined & my tongue was cut as matters no longer were heard on 30th March 2023".

(d) Multiple actors were assigned after Mr Estonina's escalation, but Mr Estonina, the victim, was never interviewed.

1. In this document Mr Estonina alleges as follows:

(a) On 28 August 2019 Mr Banducci "has immortalized through his fiduciary directive to publish" online and to Woolworths's workforce a one page document titled "Safety, Health and Wellbeing Policy".

(b) Mr Estonina was the victim of sexual harassment, in circumstances where Mr Estonina is older than the perpetrator of the sexual harassment, and is a heterosexual rather than a homosexual, being the sexuality of the perpetrator.

(c) Woolworths investigated Mr Estonina's complaint by conducting a "full investigation of "only the side" of the perpetrator as "without my full confession" and "without having an official interview" using the Company's policies on Misconduct Investigations", but "officially ceased any intent of starting to prosecute the matter 30th March 2023 through [Woolworths'] hierarchy of leaders up to the NSW State General Manager".

(d) Woolworths's managers would "not progress the matter further without my full confession of who the perpetrator was as I have requested other grievance matters must be also considered at the time I lodge the official complaint".

(e) The perpetrator continued to enjoy the benefits of working freely whilst at the store.

(f) Mr Estonina was told "SHIT" by Woolworths's "hierarchy of leaders".

(g) Mr Estonina made three attempts of escalation to Mr Banducci, these being on 18 December 2023, 22 December 2023, and 3 January 2024.

1. This document largely comprises of what may be characterised as legal submissions and otherwise conclusory assertions.

(a) on 1 November 2022 he was penalised with a final warning in relation to an investigation relating to allegations made by Ms Warren;

(b) he had received an "unwarranted promotion" to "Assistant Customer Service Manager" via the Employee Portal by the manager who had brought misconduct allegations against Mr Estonina;

(c) he had been "patronized with "OFFENSIVE LANGUAGE"," "SHIT";

(d) the store manager and head of employee relations all just wanted to talk about sexual harassment, but ignored "the other issues [pay etc]";

(e) he had been "silenced" in the 30 March 2023 meeting with Mr Spiteri;

(f) on 21 April 2023 he was penalised with a warning punishment;

(g) he had been falsely represented by Woolworths's lawyers to Mr Estonina's lawyers;

(h) he had been accused of false crimes;

(i) he was "prosecuted" with suspension from 25 October 2023;

(j) he was "given the PROSECUTION OF A "SERIOUS" matter from the 23rd Nov 2023 letter";

(k) he had been terminated;

(l) Mr Banducci "has immortalized through his statutory directive to commit to the Fair Work Ombudsman and Australian Government on 22nd Sept 2017 Under the Nose of his regime giving "unprecedented" BOOT [Better Off Overall Test]";

(m) Mr Banducci "has committed with full proclamation and fiduciary duty as Chief Executive Officer and Managing Director of WOW by publicly and judiciously [reporting] each year to the Corporate Watchdog, the Australian Securities and Exchange Ltd [ASX], its "Corporate Governance Statements";

(n) the "TEAM SPEAK UP" is a false service; and

(o) Mr Banducci "breached multiple contraventions", and Mr Estonina is "seeking the activation of penalties" under s 1317AC of the Corporations Act 2001 (Cth).

Second statement of claim filed 5 August 2024

1. This document is directed to the show cause letters of 21 April 2023 and 23 November 2023.

1. This is a 70 page document which contains submissions and extracts from statutes and policies.

1. At the hearing I attempted to obtain from Mr Estonina a statement of the facts he alleged against Mr Banducci, and the grounds on which he relied for contending that such alleged facts rendered Mr Banducci liable on the claims Mr Estonina makes. Consistently with the matters stated in his written claims, Mr Estonina identified the matters of which he complained. These included the following:

(a) Woolworths did not deal or adequately deal with Mr Estonina's sexual harassment complaint. Mr Estonina submitted that this was "not about what happened in 2019"; it was about "my intent to report the matter so that I can . . . be given some understanding".[47]

(b) Mr Estonina was underpaid for the time he had taken leave when he had COVID-19.

(c) Mr Estonina made a complaint about "the trolley safety matter" which, together with other complaints, were ignored.[48]

(d) Woolworths misled the FWC.[49]

(e) Woolworths terminated Mr Estonina's employment because he activated "the workplace right of the team speak up or making a complaint".[50]

(f) The dispute resolution procedures provided for by the EA did not "pass the boot test".[51]

(g) Mr Estonina was bullied by being appointed an "assistant manager" as a joke.[52]

1. Mr Estonina, as I understood him, accepted that Mr Banducci did not participate in any of the alleged acts of which he complains. Mr Estonina, however, submitted that Mr Banducci was liable on a number of bases. The first is "vicarious liability".[53] The second is Mr Banducci, as the CEO of Woolworths, proclaimed to the "corporate watchdog about the mechanism for complaints handling, team speak up"; and he is liable because Mr Estonina's employment was terminated because he had made complaints.[54] A third basis is that Mr Banducci ignored Mr Estonina's complaints.

1. In his counsel's written submissions, Mr Banducci submits that Mr Estonina's application is imprecise, confusing, and ambiguous. Further, in any event, Mr Estonina does not identify facts that are necessary to identify to find a cause of action based on Mr Banducci being a person involved in the alleged contraventions of the FW Act and other laws Mr Estonina claims Mr Banducci contravened.

1. Mr Banducci applies for an order under both s 143(2) of the FCFC Act and r 23.08 of the GFL Rules.

The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

1. Subsection 143(2) of the FCFC Act is in substantially similar terms as s 31A of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were stated by Perry J in Przybylowski v Australian Human Rights Commission (No 2):[55]

The principles governing the application of s 31A are well established and can be summarised as follows:

(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

... will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be "manifestly groundless" or "hopeless": Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant's success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour's view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

1. These principles assume that an applicant has articulated in a document an intelligible and ordered set of allegations that could reasonably be recognised as stating a cause of action or a purported cause of action. It sometimes happens, however, that an applicant fails to create such a document. That would not necessarily lead to the conclusion that the applicant has no reasonable prospects of success, because it is possible that within the unintelligible or disordered allegations there lies a potential cause of action. In most cases, therefore, the Court will give the applicant an opportunity to prepare another document that contains a set of intelligible and ordered allegations. If, however, the Court is satisfied that the applicant will not be able to prepare such a document, there would be no utility in the Court giving the applicant a further opportunity to prepare a fresh document; and, for that reason, the Court may conclude that the applicant has no reasonable prospect of succeeding on any of his or her claims for relief.

1. Subrule 23.08(1) of the GFL Rules provides as follows:

The Court may order that judgment be given against a party if the Court is satisfied that:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

1. It would be convenient to refer to the meaning of some of the expressions used in this rule, which might be relevant to these proceedings. The first is the expression "frivolous or vexatious", which McKerracher J explained in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation:[56]

[36] A matter is 'frivolous and vexatious' where the 'cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court': Geneva Laboratories Ltd v Nguyen [2014] FCA 1270; (2014) 110 IPR 295 per Gleeson J (at [56]), quoting Norman v Matthews (1916) 85 LJKB 857 (at 859).

[37] In relation to the term 'frivolous':

(a) a matter that is 'frivolous' may be described as one that is 'without substance or groundless or fanciful': Crocker per Reeves J (at [9]), citing Pickering v Centrelink [2008] FCA 561 per McKerracher J (at [27]); MCG Quarries Pty Ltd v Beach [2017] FCA 1601 per Davies J (at [4]);

(b) a proceeding will be 'frivolous' where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable: Pickering per McKerracher J (at [27]), referring to NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119; (2005) 143 FCR 434 (at [16]-[22]); and

(c) 'frivolous' may also describe a situation where a party is trifling with the Court or wasting the Court's time: Crocker per Reeves J (at [9]), citing Chaffers v Goldsmid [1894] 1 QB 186.

[38] In relation to the term 'vexatious':

(a) a 'vexatious' proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. 'Vexatious' might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging: Crocker per Reeves J (at [9]);

(b) proceedings may also be described as 'vexatious' where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy: Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104; (2007) 169 IR 201 per Cameron FM (at [83]);

(c) a proceeding is to be regarded as 'vexatious' where:

(i) it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii) it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii) irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless: Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; (2011) 282 ALR 56 per Bromberg J (at [14]-[15]), applying Von Reisner v Commonwealth [2009] FCAFC 97; (2009) 177 FCR 531 per Siopis, Cowdroy and Reeves JJ (at [27]); and

(d) 'vexatiousness' is a quality of the proceeding rather than a litigant's intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious: Rana v Commonwealth [2013] FCA 189 per Mansfield J (at [43]).

1. The notion of "abuse of process" was explained by the plurality in Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd as follows:[57]

An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest:

"The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice."

That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute "abuse of process". Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included:

"(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;

(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;

(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;

(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression."

The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".

1. Also relevant is s 190 of the FCFC Act, which provides as follows:

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

1. Section 190 of the FCFC Act is supported by s 191, which obliges parties to a civil proceeding before the Court to conduct the proceeding "in a way that is consistent with the overarching purpose".
2. The judgment of McCallum J (as her Honour then was) in Bleyer v Google Inc affords a relevant application of analogous provisions that govern the practice of courts in New South Wales.[58] In that case, McCallum J held there is ample authority in New South Wales "for the proposition (for which no authority is needed in any event) that the just allocation of the finite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters".[59] Further:[60]

Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. The converse proposition, that the court must always determine every claim on the merits, is expressly rejected by r 13.4 of the UCPR.

1. Mr Estonina's claims are based on two broad classes of allegations.

(a) The first class consists of more or less identifiable alleged conduct (primary alleged conduct): Mr Estonina was the victim of sexual harassment; employees of Woolworths failed to respond to Mr Estonina's sexual harassment complaint; employees of Woolworths failed to investigate other complaints Mr Estonina made; an employee of Woolworths used a swear word; Woolworths had underpaid Mr Estonina; and Woolworths terminated Mr Estonina's employment because he had made complaints.

(b) The second class of allegations are assertions that seek to link Mr Banducci with the primary alleged conduct, such as to render Mr Banducci responsible for the primary alleged conduct. Thus, Mr Estonina alleges that in the second half of 2019 Mr Banducci, as CEO, had written to all staff of Woolworths to reinforce the need "to comply with the Work, Safety and Health Legal Obligation on our Safety and Health Standards", "thereby committing his fiduciary duty"; Mr Banducci had committed Woolworths to the EA; and Mr Banducci reported to the ASX Woolworths' governance structure.

1. There are a number of difficulties with Mr Estonina's claims to the extent they rely on the primary alleged events.

(a) There is evidence on the basis of which it would be reasonable to find that in March 2019 Mr Estonina was the victim of sexual harassment by a co-worker. The sexual harassment, however, occurred before 6 December 2022 when s 527D of the FW Act came into effect;[61] and Mr Estonina has not lodged a complaint with the Australian Human Rights Commission (AHRC) pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

(b) Mr Estonina does not explain how the delay in Woolworths investigating a complaint Mr Estonina made in September 2022 about his having been sexually harassed in March 2019 contravened any provision of the EA or of any other law. Although the EA provides for a procedure for resolving disputes, no dispute arose between Woolworths and Mr Estonina about the alleged sexual harassment until Mr Estonina complained about the delay in his complaint being investigated. The complaint, however, was handled in the manner provided for by the EA.

(c) The evidence, and in particular the Spiteri Letter, shows that Woolworths responded to the sexual harassment complaint, and Mr Estonina's complaint about Woolworths's delay in investigating that complaint. Mr Spiteri's letter also shows that Woolworths responded to the other complaints referred to in the Spiteri Letter. Mr Estonina has not identified any other particular complaints he had made which he says Woolworths did not investigate or respond to.

(d) Mr Estonina has not identified how an employee's having used the word "shit" constituted a contravention of any law.

(e) Assuming Mr Estonina has identified with sufficient clarity the complaints he says he made to Woolworths, the contemporaneous documents indicate that Woolworths decided to terminate Mr Estonina's employment because it found that allegations of misconduct made against Mr Estonina had been substantiated. Such misconduct included Mr Estonina's not following directions he had been given about the persons to whom, in the first instance, he should direct complaints. Mr Estonina was given those directions in the Spiteri Letter, and in the letter dated 11 April 2023.

1. Mr Estonina's complaint about the underpayment while he was away from work ill with COVID-19 requires separate consideration. Woolworths acknowledged to Mr Estonina that it had made a mistake; and the mistake was rectified by January 2023 by Woolworths paying to Mr Estonina a certain amount (COVID rectification payment).
2. Even if, however, Mr Estonina had a reasonably arguable case that any of the primary alleged conduct constituted a contravention of a law, Mr Estonina would have no reasonable prospects of succeeding on a claim that Mr Banducci was involved in any such conduct such as to render him liable for it.

(a) First, it is not reasonably arguable that the persons who engaged in the primary alleged conduct were employees of Mr Banducci; they were employees of Woolworths. Thus, there would be no reasonably arguable basis for contending that Mr Banducci is vicariously liable for the acts or omissions of the employees of Woolworths who engaged in the primary alleged conduct. As the plurality said in Bird v DP:[62]

The third area of law where the expression vicarious liability has been used, and where its use is apposite, involves cases of secondary liability based on attribution of liability, not attribution of the acts, of a wrongdoer to a defendant. This is vicarious liability in its true or proper sense - liability based on the attribution of the liability of another. As is self-evident, vicarious liability is a form of strict liability, whereby a defendant is held liable for the wrongs of another, despite the defendant being free of fault.

The common law of Australia, as repeatedly stated by this Court, has adhered to the rule that a relationship of employment is a necessary precursor to a finding of vicarious liability. In that context, a relationship of employment operates within a legal framework, defined by statute and by common law principles which inform the content and construction of a contract of employment.

(b) Second, there is nothing in the material on which Mr Estonina relies that could raise a reasonably arguable case that any of the employees who engaged in the primary alleged conduct did so as agents of Mr Banducci. Nor is there any material that could raise a reasonably arguable case that Mr Banducci had "close personal involvement" in the primary alleged conduct, such as to render Mr Banducci a joint tortfeasor. As the Full Court of the Federal Court of Australia said in relation to the infringement of trade marks (emphasis added):[63]

Plainly enough, to incur personal liability for a tort committed by a company, a director must be acting beyond their proper role as a director. In JR Consulting, the Full Court approved the statement of Besanko J in Keller where at [291] his Honour said that:

...A "close personal involvement" in the infringing acts by the director must be shown before he or she will be held liable. The director's knowledge will be relevant. In theory, that knowledge may range from knowledge that the relevant acts are infringing acts to knowledge of an applicant's registered designs to knowledge of acts carried out by others.

(c) Third, it is not reasonably arguable that by promoting and requiring staff to abide by the "Safety, Health and Wellbeing Policy", Mr Banducci assumed a personal fiduciary, promissory, or any other duty that the terms of any such policy would be complied with by all of Woolworths' employees. And there is nothing in the material on which Mr Estonina relies that could give rise to a reasonable claim that Mr Banducci did not intend to convey to the readers of the polices that they should be complied with; or that there was anything misleading about the policies; or that Mr Estonina detrimentally relied on any of the policies.

(d) Fourth Mr Estonina has not articulated any basis on which Mr Banducci came under an obligation to meet with Mr Estonina personally, as Mr Estonina requested on three occasions. The EA contained provisions that dealt with the raising of disputes; and Mr Estonina's seeking to meet with Mr Banducci did not fall within those procedures. Further, Mr Estonina had been directed that he should first raise any issue with his store manager and line manager.

1. Given these matters, I am satisfied Mr Estonina does not have reasonable prospects of succeeding on any of his claims for relief against Mr Banducci.
2. I am also satisfied that the proceeding against Mr Banducci is vexatious and an abuse of process. The claims Mr Estonina makes are broad; they are difficult to understand; they have been presented in a disorderly form; and in any event they have no merit. Given the many documents Mr Estonina has filed, and the period over which he has filed them, in many cases without an order of the Court, I am satisfied Mr Estonina would have no prospect of formulating a reasonably clear and reasonably arguable claim for relief against Mr Banducci. On the contrary, I am satisfied that it would be manifestly unfair to Mr Banducci, and would bring the administration of justice into disrepute, if I were to permit Mr Estonina to continue with the proceeding.
3. For these reasons, I am satisfied that an order should be made pursuant to s 143(2) of the FCFC Act and r 23.08(1) of the GFL Rules that the 1025 Proceeding be dismissed.

1. As I noted at the beginning of these reasons, Mr Estonina commenced the 1399 Proceeding in the Federal Court of Australia, but that proceeding was transferred to this Court; and the matter came before me for a directions hearing on 7 August 2024. On that occasion, I made orders that included the following:

1. By 2 October 2024 the applicant file and serve;

1. an affidavit setting out in narrative form, and annexing documents, that states all the facts the applicant intends to rely upon in support of his claims for relief; and
2. a document titled "Statement of Applicant's Case" which, on the basis of the affidavit the applicant files pursuant to (a):

   1. identifies each claim for relief the applicant makes; and

   2. in relation to each claim for relief the applicant makes:

A. identifies the facts on which the applicant relies; and

1. the statutory and general law the applicant submits has been contravened or breached and on the basis of which the claim for relief is sought.

2. The matter is listed for a directions hearing at 9.30 am on 16 October 2024, such directions hearing to proceed by telephone.

(a) On 12 September 2024 I made orders in chambers extending to 23 October 2024 the time by which Mr Estonina must comply with order 1 of the orders I made on 7 August 2024, and listed the matter for directions on 6 November 2024.

(b) On 3 October 2024 Mr Estonina lodged a document titled "Outline of Submissions of the Applicant in Support of "No of Issues of Facts" Application for "Team Speak Up" [Employee Assistance Programme] that Results TO A JUDGEMENT". Although difficult to understand, this document purported to claim that Woolworths contravened the whistleblower provisions of the Corporations Act.

(c) On 15 October 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [Non-payment of Wages, False testimonies].

(d) On 15 October 2024 Mr Estonina filed an affidavit he made on that day.

(e) On 20 October 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [Paragraph 10 of Chief Justice James Allsop's E & IR-1]".

(f) On 21 October 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [Sexual Harassment, Respect@Work Obligations et al], and a document titled Statement of Applicant's Case [Defamation Claim]".

(g) On 22 October 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [Work Health and Safety]", and a document titled "Statement of Applicant's Case [1st Nov 2022 Final Warning = L Warren Allegations]".

(h) On 23 October 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [General Protections Claims With Dismissal et al]".

1. At the directions hearing on 6 November 2024 Mr Estonina explained he filed multiple statements of claim to speak to different issues. Mr Estonina however, agreed to compile all his claims into the one document. I therefore made an order extending the time to 4 December 2024 by which Mr Estonina could comply with the orders I made on 7 August 2024, and I listed the matter for further directions on 11 December 2024. On 4 December 2024 Mr Estonina filed a document titled "Statement of Applicant's Case [General Protections Claims With Dismissal et al]", this being the ASC I identify above.
2. At the directions hearing on 11 December 2024 Mr Xiao, who appeared for Woolworths, indicated that Woolworths intended to apply to dismiss the proceeding. The only order I made was to stand the matter over for a further directions hearing on 12 February 2025. Although I made no other orders, Mr Estonina filed the following documents before 12 February 2025:

(a) on 3 February 2025, he filed a document titled "Expert Report [Court Experts About Sexual Harassment]";

(b) on 4 February 2025, he filed an Affidavit made by himself, and a document titled "Outline of Submissions in Support of "No of Issues of Law" Defining "Sexual Harassment"; and

(c) on 10 February 2025, he filed a document titled "Outline of Submissions Section 608[2] of the Fair Work Act 2009".

1. At the directions hearing on 12 February 2025 I made orders permitting Woolworths to file and serve by 14 March 2025 an application dismissing the proceeding, and listed that application for hearing on 7 May 2025.

1. Mr Estonina's claims are set out in the ASC (being the statement of the applicant's case Mr Estonina filed on 4 December 2024). The ASC is divided into a number of sections.

(a) The first section (paragraph 1) is headed "Maxim: Plaintiff in a Nutshell". Mr Estonina says he was employed by Woolworths from 8 June 2007 until 5 February 2024 when Woolworths terminated his employment. Mr Estonina says Woolworths terminated his employment based on two different official reasons, those stated in the Termination Letter, and those stated in the "Employment Separation Certificate", namely "Unsatisfactory Work Performance". Mr Estonina also says he was a national system employee within the meaning of s 13 of the FW Act, and an "Employee" within the meaning of s 596AA of the Corporations Act.

(b) The second section (paragraph 2) is headed "Maxim: Plaintiff's Armament of Work Instruments and other Dogma". In this section Mr Estonina appears to set out what he contends is the effect of various laws and industrial instruments.

(c) The third section (paragraph 3) is headed "Maxim: Plaintiff awarded as "Good Worker" and "Remains a Valuable Employee". Mr Estonina refers to matters that speak to his having been a good and valuable employee of Woolworths.

(d) The fourth section (paragraph 4) is headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"", where Mr Estonina alleges Woolworths is a body corporate for the purposes of FW Act, the Corporations Act, the Sex Discrimination Act 1984 (Cth) (SD Act), the Proceeds of Crimes Act 1987 (Cth), and the Work Health and Safety Act 2011 (Cth) (WSH Act).

(e) The fifth section (paragraph 5) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"". Mr Estonina:

(i) refers to the document that is annexure "MAE52" to an affidavit he filed on 6 May 2024, being a document titled "Mr Bradford Banducci, CEO The face of the almost 10 years successive "Code of Conduct Workplace Policies", quoting the following passage:

"Team Leaders, Managers & Supervisors have responsibility to role model and Promote this Code of Conduct" "....Team Speak Up is an independent complaints Handling service hosted by an external company.....identify a serious matter....." "on how to report.....email groupcompliance@woolworths.com.au"

(ii) refers to Woolworths having "decreed its dogma" of the Code of Conduct to the ASX as part of its Governance Statement which includes the following declaration:

"Code of Conduct applies to all directors ... employees,..... of the Woolworths Group . . . in the performance and responsibilities."

(iii) refers to the 2016 "nomenclature about the "Code of Conduct" below to ASX is always similar";

(iv) says that the "Code of Conduct" is an explicit 3-word term in the EA "under its legislated Sect 2.1.[b] "Workplace Policies" and Sect 2.6 "Reporting an Issue" thereby eligible as a Work Law Benefit or Work Law Right as per Sect 341 [FW Act]";

(v) refers to a communication Woolworths made to SafeWork on 16 November 2022 that:

"... Woolworths has a number of Workplace policies setting out behavioural Expectations and mechanisms for reporting complaints, including the Respectful Workplace Policy, Code of Conduct Policy and Team Member Speak Up Policy. These policies meet the legislative obligations required under the Work Health And Safety Act 2011 issue resolution procedures."

(f) The sixth section (paragraphs 6 and 7) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"". Mr Estonina:

(i) refers to the "Safety, Health and Well-being Policy" statement Mr Banducci signed on 28 August 2019, quoting the passage: "We care about . . . psychological safety . . . Being proactive is better than reactive" and "There will never be an acceptable reason to not comply";

(ii) states every notice board of the Woolworths stores has a printed copy of the "Health & Safety Issue Resolution Flowchart";

(iii) refers to Blume v Woolworths, a case in which Woolworths had been prosecuted; a bale press accident in 2023; Woolworths having been told by FWC that Woolworths had not documented in the "Company/Employee portal for either "Safety Boot or Shoes" Policy"; the FWC holding Woolworths had failed to take steps in relation to milk trolley design; and in February 2024 the FWC telling Woolworths it had failed to address matters that were open with the safety watchdog, or to provide mitigation at a store level on safety issues;

(iv) refers to Woolworths on 30 December 2023 having acknowledged receipt of Mr Estonina's letter to Mr Banducci called "OH & S Concerns Notice to PCBU: Formal Letter to CEO of Woolworths Group Limited includes Dorsa Vi Letter", but failed to implement the code of conduct in relation to that letter;

(v) says Woolworths received multiple complaints about safety at work;

(vi) refers to Woolworths having publicly pronounced tragic workplace deaths, noting that that had fortified Woolworths's daily commitment to providing a safe workplace; and

(vii) refers to Woolworths, on 16 November 2022, having informed WorkSafe that it had responded to Mr Estonina's psychological health hazard complaint.

(g) The seventh section (paragraph 8) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"". Mr Estonina refers to the "COVID Handbook" Woolworths published in December 2021.

(h) The eighth section (paragraph 9) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"". Mr Estonina refers to Woolworths' "Team Speak Up" program, cl 2.4 and 2.6 of the EA, to what the ASC describes as the Employee Assistance Programs, and to the "Report Handling and Investigation Process". Mr Estonina then identifies 11 means by which Woolworths has "explicitly and publicly promulgated" employees can speak up.

(i) The ninth section (paragraph 10) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?"". Mr Estonina refers to "public and official proclamations" Mr Banducci made.

(j) The tenth section (paragraph 11) is also headed "Maxim: Who is the Defendant and what is its Corporate "State of Mind/Conduct?". This refers to Woolworths's "Speak Up Service" in relation to trolley collectors.

(k) The eleventh section (paragraph 12) is headed "Maxim: Previous Work Law "AE897808" vs Incumbent Work Law "AE501243"".The apparent purpose of this section is to contend that the speak up policy provided for by the EA is less beneficial than the speak up policy provided for by enterprise agreement it replaced.

(l) The twelfth section (paragraphs 13 and 14) is headed "Maxim: Respondent's "Worn Declarations to the Workplace Tribunal"". This section is directed to the Form 8A Employer Response Woolworths filed in a proceeding before the FWC.

(m) The thirteenth section (paragraph 15-24) is headed "Maxim: Respondents "Own Chancery"". This appears to be directed to a number of matters, including the following:

(i) Woolworths purporting to suspend Mr Estonina from his employment pending an investigation into his conduct. Mr Estonina claims Woolworths was not entitled to suspend Mr Estonina (paragraph 15).

(ii) The portal recording Mr Estonina had been made an assistant customer service manager. It appears also to be directed to a final warning Woolworths gave to Mr Estonina on 1 November 2022 (paragraph 18).

(iii) Compared the process Woolworths followed in relation to Mr Estonina's COVID wage and sexual harassment complaints with the complaint Ms Warren made against Mr Estonina (paragraph 20).

(iv) The Spiteri Letter's resolution of Mr Estonina's complaint in relation to the use of the word "shit" being contrary to the "Zero Tolerance Policy" (paragraph 20.b.).

(v) Woolworths issuing the warning letter dated 21 April 2023 without affording Mr Estonina procedural fairness (paragraph 20.c.).

(vi) The letter dated 27 September 2023 by which Mr Estonina was prejudiced in front of his law firm (paragraph 20.d.).

(vii) Woolworths issuing the 23.11.2023 Show Cause Letter without any involvement of Mr Estonina's direct manager or store manager (paragraph 20.e.).

(n) The fourteenth section is headed "Maxim: Applicant's "Mitigating Steps before escalating to Federal Courts" [e.g. escalation, negotiations, sought for meeting, etc] relying on Sect 37M/37N and Sect 67"". This section is divided into a number of subsections:

(i) A subsection headed "Bullying Incident and Non-Wage Payment in 2016" (paragraph 25). Here Mr Estonina makes unparticularised claims about a complaint he made in 2016 about non-payment of wages and consequent bullying. The overriding allegation is that Mr Estonina aimed to "facilitate the just resolution of disputes .. according to law".

(ii) A subsection titled "Non Wage Payment in 2022 due to COVID-illness ["COVID-Wage"]" (paragraph 26). This refers to the underpayment in relation to leave Mr Estonina had taken when he had COVID-19. The overriding allegation is that Mr Estonina aimed to "... facilitate the just resolution of disputes .. according to law".

(iii) A subsection headed "Sexual Harassment and the Negligent Action from Sept 2022 ["Sex H"]" (paragraph 27). Here Mr Estonina refers to the sexual harassment which occurred in March 2019, his reporting it in September 2022, and its having been neglected. The overriding allegation is that Mr Estonina aimed to "... facilitate the just resolution of disputes .. according to law".

(iv) A subsection headed "SHIT Offensive Language and Disqualifying "Zero Tolerance" Policy ("SHIT")" (paragraph 28). In this section Mr Estonina refers to his complaint about the use of the word "shit". The overriding allegation is that Mr Estonina aimed to "facilitate the just resolution of disputes .. according to law".

(v) A subsection headed "Allegations of Leela Warren, Direct Manager ["1 Nov 2022 Final Warning"]" (paragraph 29). The overriding allegation is that Mr Estonina aimed to "facilitate the just resolution of disputes .. according to law". This subsection refers to a final warning Mr Estonina was given on 1 November 2022 after a face to face meeting on 13 September 2022 with the store manager in relation to a conmplaint Ms Warren made. Mr Estonina says that he was given a right to reply about Ms Warren's allegations, and multiple emails were exchanged, but no further face to face meeting was afforded by Woolworths, thus depriving Mr Estonina of fairness.

(vi) A subsection headed "Repeated of Bale Accident & other OHS matters Negligently Eroded ("OH & S Erosion")" (paragraphs 30-37). This section relates to safety concerns Mr Estonina first raised on 18 August 2022 in relation to delivery pallets and other matters, and to concerns raised in 2023 in relation to floor spillage and an alleged electrical hazard. Mr Estonina complains the concerns were escalated, but his concerns were ignored.

(vii) A subsection headed "Veracity of the "Investigation" Integrity of Respondent on my Termination ("The Dismissal")" (paragraph 38). Mr Estonina alleges as follows:

• on 22 September 2023 Mr Estonina was accused of three misconduct allegations;
• on 25 October 2023 Mr Estonina was accused of an additional two misconduct allegations;
• on 23 November 2023 Mr Estonina was exonerated of two of the misconduct allegations;
• on 27 September 2023 Mr Estonina was accused of another "false crime" (this appearing to be directed to the "Unknown Man" claim to which I will refer shortly);
• on 9 October 2023 Mr Estonina was accused of another "false crime";
• "[s]urmounting evidences that portray "False Crimes" relating to harassment of staff without due diligence give rise to the questionable veracity of the decision makers"; and
• the prosecution of a "serious matter" from 23 November 2023 when the letters are not serious.

(viii) A subsection headed "Employee Assistance Program "TEAM SPEAK UP is a FALSE Programme" ["Lied to ASX"]" (paragraphs 39 and 40). Here Mr Estonina claims that the CEO's not responding to Mr Estonina's requests for meeting rendered Woolworths "Team Speak Up" as "non-existent".

(ix) A subsection headed "Other instances of Non Payment of Wages ["Other Wage Theft"]" (paragraphs 41 - 49). In these paragraphs Mr Estonina asserts he was not paid wages during "Suspension". Footnote 154 refers to paragraph 18 of the affidavit Mr Estonina made on 15 October 2024. Mr Estonina there asserts Woolworths unlawfully applied annual leave entitlements to periods during which Mr Estonina was suspended; and copy-pastes what is said to be a "payslip record for the Wage Payment during the 1st week of Suspension".

(x) A subsection headed "Defamation ["Unknown Man et al"]" (paragraphs [50 - 55]). Here Mr Estonina refers to the "False "Unknown Man" allegations", and the reader is referred to paragraph H of the concise statement Mr Estonina filed on 31 March 2024 in the 307 Proceeding. Paragraph H of that document is headed "Unknown man", but the section extracts a passage from an online publication that appears to comment on a judgment of Tracey J in "Dunn v Australian Crime Commission".

(o) The fifteenth section is headed "Maxim: "protections Under the ILO Statutes"" (paragraphs 56-61). Here Mr Estonina makes the following allegations:

(i) On 21 April 2023 Mr Estonina was penalised by Woolworths issuing to him a "final warning" letter on the ground that he failed to comply with the reasonable and lawful direction given in the Spiteri Letter.

(ii) In the letter dated 11 April 2023 Woolworths again alleged Mr Estonina failed to comply with reasonable and lawful directions.

(iii) Mr Estonina's employment should have been terminated on 21 April 2023; but Woolworths waived that opportunity because it did not act on the misconduct it identified in the Spiteri Letter.

(iv) On the day it terminated Mr Estonina's employment, Woolworths did not "activate" the "Work Right" provided for by Art 9 of the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982 (TER), which provides that:

A worker should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention, 1982, against allegations regarding his conduct or performance liable to result in the termination of his employment; this right may be specified by the methods of implementation referred to in Paragraph 1 of this Recommendation.

The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning.

(vi) On 23 November 2023 Woolworths penalised Mr Estonina and substantiated as misconduct "for getting another person [s] to defend myself [Witness Statements from both Mr Christopher and Davinder Singh] as per Paragraph 21 of this Statement of Claim, thus disabling my Work Right to activate Art 9 of" the TER. I understand this to be a claim that Woolworths decided Mr Estonina engaged in misconduct because Mr Estonina had invoked Article 9 of the TER.

(vii) Further, the Employment Separation certificate declared that Mr Estonina was terminated because of "Unsatisfactory Work Performance", not because of misconduct. In those circumstances, Woolworths was bound, but failed to comply with Article 8 of the TER, which provides:

The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.

(p) The sixteenth section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 62). Here Mr Estonina alleges Woolworths contravened s 323 of the FW Act in relation to the COVID rectification amount and the asserted failure to pay annual leave or personal leave on 19 and 20 January 2016.

(q) The seventeenth section is also headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 63). This section only refers to s 527D of the FW Act.

(r) The eighteenth section is also headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 64). Mr Estonina claims Woolworths breached a term of the EA "as it did not recognize its Workplace Policies such as Code of Conduct, Team Speak Up and Respectful Workplace Policy as a "Workplace Instrument"".

(s) The nineteenth section is also headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 65). Mr Estonina sets out s 772(1)(e) of the FW Act.

(t) The twentieth section is headed "Maxim_: "This subsection is a CIVIL REMEDY PROVISION"_" (paragraph 66). Mr Estonina claims Woolworths had taken adverse action, being "the discriminatory handling of [his] complaints compared to other employees because there were "too many actors" who prosecuted [his] grievance"; and Mr Estonina did not have a face-to-face meeting with "the Decision Maker".

(u) The twenty-first section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 67). Mr Estonina claims that Woolworths acted with coercion. Mr Estonina claims that "too many actors" "prosecuted" Mr Estonina's grievances; and Mr Estonina did not have a face-to-face meeting with "the Decision Maker".

(v) The twenty-second section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION" (paragraph 68). Mr Estonina alleges that at all times Woolworths "acted with undue influence" by pressuring him not to continue with his complaint against his manager for the non-payment of wages, and bullying.

(w) The twenty-third section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION" (paragraph 69). Mr Estonina alleges that Woolworths "denied FWC Process".

(x) The twenty-fourth section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 70). Mr Estonina alleges that Woolworths contravened s 536D of the FW Act. This claim is not particularised.

(y) The twenty-fifth section is headed "Maxim: This subsection is a CIVIL REMEDY PROVISION"" (paragraph 71). Mr Estonina identifies as the ""Ultimate Probandum": "Civil Duty under Corp Act"". Mr Estonina alleges that two store managers failed to act "with degree [of] care and diligence on the Bullying/Wage Non-payment in 2016" after Mr Estonina had initiated the "Grievance Procedure"; the CEO had neglected Mr Estonina's attempts to escalate the matter; on 13 September 2022 Mr Estonina raised grievances about the "deficient payment of Wages due to COVID-illness"; and the CEO neglected Mr Estonina's attempt to escalate his grievances.

(z) The twenty-sixth section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION" (paragraph 72). Mr Estonina alleges that Woolworths contravened sections 32, 47, 81, 104, 109, and 268 of the WHS Act.

(aa) The twenty-seventh section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION" (paragraph 73). Mr Estonina identifies as the "Ultimate Probandum: "Victimisation to the Corporate Watchdog".

(bb) The twenty-eighth section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 74). Mr Estonina seeks the "Court's deliberation on the breaches on Defamation Act 2005 [NSW] for Sections 6 and Division 2, Part 2" of that Act.

(cc) The twenty-ninth section is headed "Maxim: "This subsection is an APPLICATION OF THE CRIMINAL CODE"" (paragraph 75). Mr Estonina identifies as the "Ultimate Probandum: "Lied to the Fair Work Commission"". The basis of that claim appears to be Woolworths denying before the FWC that it had contravened the FW Act.

(dd) The thirtieth section is headed "Maxim: "This subsection is a CIVIL REMEDY PROVISION"" (paragraph 76). Mr Estonina identifies as the "Ultimate Probandum: "False Proclamation of an EAP 180 to the Corporate Watchdog"".

1. In its counsel's written submissions, Woolworths submits it is impossible to understand the precise nature of Mr Estonina's case; and whichever way the ASC is construed, Mr Estonina does not have reasonable prospects of succeeding on any of the claims he makes. Further, the proceeding is frivolous, vexatious, and an abuse of process. In support of that submission, Woolworths relied on the following (errors in original): [64]

(a) the Applicant has used these proceedings to agitate a raft of additional matters that were never referenced in the Originating Application, and he has done so by filing voluminous amounts of confusing and ambiguous material;

(b) the Applicant has filed voluminous amounts of material in the absence of any orders of the Court to do so;

(c) the Applicant has repeatedly not complied with Limited Documents Order, which has caused undue delay and has caused the Respondent to expend time and costs. His conduct to date, which includes filing further material after having filed his Statement of Claim, suggests a conscious disregard for Court orders and directions;

(d) the Applicant has attempted to issue numerous subpoenas for the production of documents that have no apparent relevance to the proceeding;

(e) the amount of material filed in these proceedings, and the manner in which serious allegations have been pleaded, is confusing, prejudicial and oppressive. The Court's and the Respondent's time and resources ought not be used to decipher the Applicant's material. To do so would contradict the overarching purpose of civil practice in this Court;

(f) the Applicant continues to press claims which are unmeritorious and which he has no standing to bring, such as claims that the Respondent has breached the Corporations Act, work health and safety legislation, and ILO recommendations; and

(g) the Applicant continues to make assertions of fact, and continues to quote extraneous sources and cases, that have no apparent relevance to these proceedings and which the Respondent is unable to respond to. For example, at paragraph [3] of the Statement of Claim (page 7) he says that he is a valuable employee of Woolworths and 'good worker' because of 'likes' on an undisclosed social medial post and a picture that he took with the former Chief Executive Officer of the Respondent several years ago. It is impossible to understand what the Applicant is trying to convey, and the relevance of these factual assertions to the proceedings.

1. Mr Estonina has filed lengthy written submissions; but these do not attempt to identify the claims Mr Estonina believes he makes in the ASC or anywhere else. In those circumstances, at the hearing of the application I attempted to obtain from Mr Estonina a statement of the claims he understood he made or intended to make against Woolworths.

1. I drew Mr Estonina's attention to the case he wished to make in relation to his dismissal. Mr Estonina identified a number of claims.

Breach of cl 22.1 of EA - bypassing relevant supervisor or management

1. Mr Estonina referred to paragraph 20.i. of the ASC, which is as follows:

On the 25th Oct 2023, the Respondent has introduced two (2) new allegations [#4 and #5] without activating again on the Applicant natural justice of a "workplace right" as below" and activated "Suspension" effective immediately that day with no mitigating opportunities:

(a) Activation of Section 36.2 of the General Retail Award 2000

(b) Activation of Section 22.1[a] of the Enterprise Agreement [ID AE501243]

(c) Activation Legal Requirements of Dispute Resolution from the Fair Work https:www.fairwork.gov.au/tools-and-resources/best-practice-guides/effective-dispute-resolution

1. After asking Mr Estonina a number of questions, I summarised what I understood Mr Estonina's case to be in relation to his dismissal:[65]

HIS HONOUR: So I'm just going to go through step-by-step. So - just to do the best I can to understand what you want to say through this document. So your complaint about your termination. You say - and I'm repeating myself just to make it clear - you say it was unsubstantiated. You rely on an exoneration. You say that on 30 August 2023, you made a complaint, and you rely on some witness statements or statutory declaration. You don't say Woolworths terminated you because they were aware of that complaint. Your complaint seems to be that they terminated your complaint [sic: should be "employment"] without your complaint having been drawn to their attention.

MR ESTONINA: Drawn to their attention. Yes, your Honour.

HIS HONOUR: All right. All right.

1. Mr Estonina then submitted that this constituted a contravention of s 50 of the FW Act, which provides that a "person must not contravene a term of an enterprise agreement". Mr Estonina submitted that Woolworths contravened cl 22.1 of the EA; [66] and that is because, in dealing with the 30 August Allegations in the manner it did, Woolworths bypassed Mr Estonina's immediate manager.[67] Mr Estonina also submitted that Woolworths contravened s 340(1) of the FW Act because the allegations on the basis of which it purported to terminate him were not substantiated.[68]

1. I asked Mr Estonina to explain his claims under the Corporations Act. Mr Estonina, however, returned to termination, and in particular to paragraph 60 of the ASC, but I told him that it appeared to me that Mr Estonina was repeating, revisiting, and adding things haphazardly. I said this on the understanding that Mr Estonina had identified all the grounds on which he wished to rely on his case relating to the termination of his employment.[69] Having now thoroughly reviewed the material, I was incorrect in my view that Mr Estonina had identified all his claims on termination; and that is because paragraph 60 of the ASC constitutes a distinct ground. Mr Estonina, however, returned to this subject later in his oral submissions, where he said:[70]

So following through that is just the protection under the ILO statutes. So you will see that in an earlier one, in April 2023, the same reason that they've put on my termination was back a year ago - then I should have been terminated that - one year ago, for that reason, not wait for one year after. That is under the ILOU - ILO R166, I think. So they've waived their right. The respondent has waived their right.

Paragraphs 21 to 23 of ASC - penalised for exercising rights permitted by EA

1. Mr Estonina referred to paragraph 23 of the ASC. Mr Estonina said that "the leader of the respondent says I should not contact people advisory of group compliance", yet the "workplace instrument, being a workplace right, says I can freely contact people advisory".[71] When read with paragraph 23 of the ASC, I take Mr Estonina to submit that Woolworths acted contrary to cl 2.6 of the EA which provides that "[t]eam members should always feel free to ask questions, provide feedback and to speak up when they feel that something isn't right. Team members can speak to their manager, contact Woolworths People Advisory or consult the Code of Conduct for more reporting options ". Mr Estonina later referred to paragraph 21 of the ASC where he alleges his employment was "terminated for calling out witnesses".[72]

1. Next Mr Estonina addressed his claims based on sexual harassment. The following reflects the understanding I gained of Mr Estonina's claim:[73]

HIS HONOUR: Can I just say ‑ ‑ ‑

MR ESTONINA: Yes.

HIS HONOUR: ‑ ‑ ‑ your sexual harassment claim - you say you were sexually harassed.

MR ESTONINA: Yes, your Honour.

HIS HONOUR: It occurred by means of text messages from your supervisor.

MR ESTONINA: And substantiated.

HIS HONOUR: And - well, just hold on.

MR ESTONINA: Yes, sorry. Yes.

HIS HONOUR: I don't - I'm not ‑ ‑ ‑

MR ESTONINA: Yes.

HIS HONOUR: Substantiation is not coming here.

MR ESTONINA: Okay.

HIS HONOUR: Articulation is the issue. Right.

MR ESTONINA: Okay, your Honour.

HIS HONOUR: Right. So text messages sent, you say, although I don't know what's in the material. You say it was also verbal and ‑ ‑ ‑

MR ESTONINA: Yes, your Honour.

HIS HONOUR: Things that occurred in the workplace.

MR ESTONINA: Yes.

HIS HONOUR: I understand you to say that that was on behalf of Woolworths.

MR ESTONINA: Woolworths, yes, your Honour.

HIS HONOUR: And that constitutes sexual harassment under the Fair Work Act.

MR ESTONINA: That's correct, your Honour.

HIS HONOUR: You also say, I think, that you complained about that ‑ ‑ ‑

MR ESTONINA: Yes, your Honour.

HIS HONOUR: ‑ ‑ ‑ and nothing was done.

MR ESTONINA: Yes, your Honour.

HIS HONOUR: And then ‑ ‑ ‑

MR ESTONINA: There was an adverse action.

HIS HONOUR: ‑ ‑ ‑ you also say there was a breach of the ‑ ‑ ‑

MR ESTONINA: The RP ‑ ‑ ‑

HIS HONOUR: ‑ ‑ ‑ the workplace agreement because the dispute resolution ‑ ‑ ‑

MR ESTONINA: Wasn't acted upon.

HIS HONOUR: Is that it in broad terms?

MR ESTONINA: For sexual harassment and also the ‑ ‑ ‑

HIS HONOUR: What else?

MR ESTONINA: The continuous misleading to the Fair Work . . .

1. Mr Estonina also referred to paragraph 27.i. of the ASC,[74] where he alleges Woolworths submitted a false response when submitting a questionnaire to the Workplace Gender Equality Agency. Question 5.1 of the questionnaire appears to be extracted in paragraph 28 of the statement of claim Mr Estonina filed on 22 July 2024 in the 1025 Proceeding, and it asks whether "you have formal policies and/or formal strategies on the prevention and response to sexual harassment, harassment on the ground of sex or discrimination". Mr Estonina contends that Woolworths answered "yes" to that question, and, in so doing, contravened s 19B of the Workplace Gender Equality Act 2012 (Cth).[75] Mr Estonina also contends that Woolworths failed to comply with s 28M and 47C of the SD Act.[76]

Corporations Act

1. In relation to his claim based on the Corporations Act, Mr Estonina claims that Woolworths publicly proclaimed, including to the ASX, that it had the Teams Speak Up program and employee assistance program. Mr Estonina claims these proclamations were false and misleading because Mr Estonina's sexual harassment complaint had not been properly dealt with; and the Teams Speak Up was managed by a third party, but no third party contacted Mr Estonina.[77] Moreover, although Mr Estonina accessed the Team Speak up, his attempts to access it were not properly responded to.[78] Mr Estonina also referred to his whistleblower complaint.[79]

1. Mr Estonina referred to paragraph 8 of the ASC and confirmed that all the claims he makes in relation to the COVID underpayment are contained in that paragraph.[80] Mr Estonina then referred to paragraphs 41-49 of the ASC. Mr Estonina described these paragraphs as a summary of the alleged non-payment of wages;[81] but he said this was based on the allegations made in paragraph 25 of the ASC.[82]

1. Mr Estonina referred to paragraph 55 of the ASC. Mr Estonina said "my approach here, your Honour, is that there was false misconduct imputations that fall under serious classifications punishable under the Crimes Act".[83]

1. Mr Estonina referred to paragraph 75.8.1 of the ASC. Mr Estonina said that his case based on that paragraph is that while he was suspended, Woolworths did not pay him his wages, but applied Mr Estonina's annual leave entitlements.[84]

1. Mr Estonina referred to paragraph 39-37 of the ASC. Mr Estonina says he made complaints about the wearing of safety boots, review of milk trolly design, but "all was denied upon".[85]

Comparison of old enterprise bargaining agreement with new EA

1. Mr Estonina said he had "raised a complaint that because of the sexual harassment being removed from the current EBA, it diminished our workplace".[86] Mr Estonina said that this claim is raised in table D of the ASC,[87] which appears in paragraph 11.d. of the ASC. The table purports to compare the "Supermarket Employee Team Speak Up" with the "Trolley Collector SpeakUp Service". Mr Estonina also referred to paragraph 12 of the ASC which purports to identify differences between the previous enterprise bargaining agreement, and the EA. Mr Estonina said this was made in support of a claim under s 184 of the FW Act. [88]

1. It would be convenient if I reproduce the following submissions counsel for Woolworths made in reply to Mr Estonina's submissions:

• there's still no answer to what was paragraph 67 of the written submissions, in respect to the claims of an abusive process and the conduct of the proceeding over the last 12 months. There has been no answer to that, and those matters should weigh heavily in your Honour's consideration in determining what the appropriate outcome is.

I'm just going to go through these briefly, noting the time. As to the question of termination, almost all of the matters raised are of an unfair dismissal type character, that is, they go to the substance, rather than any question of reasons, or complaints rather - sorry ..... reasons. In terms of the complaints alleged, there's no temporal connection. There's no link to any dismissal, and Mr Estonina concedes that Woolworths didn't actually have any knowledge of the relevant complaints at the time the termination was alleged to have been made. Look at the dispute resolution clause. There's no mandatory requirement in terms that has been alleged. It's not identified in the statement of claim, in any event.

The same goes with sexual harassment. There's no evidence. It's fundamentally inconsistent with the nature of the complaints that were made. Corporations Act, there's no named applicants or respondents. There's no duty pleaded. There's no bridge pleaded. In terms of the wages, to the extent it relates to matters in 2016, they're out of time. To the extent that it relates to any other matters, again, no provision, no quantification, no identification, no engagement, no ability for us to understand anything, at all. Defamation claim, we refer to paragraph 60 of our submissions. I won't want to say anything more about that. There has then been some suggestion about suspension. Again, there's no cause of action identified about that.

And paragraph 75(a)(i) concerns the boot, about which this court doesn't have jurisdiction in the current guise of this claim. The false testimony to the Fair Work Commission, section 768, relates to witnesses, and there's no allegation here that it relates to witnesses in terms. And in any event, it doesn't create a statutory cause of action but, rather, it creates a criminal offence. We've dealt with WHS in our written submission. And the claims in respect of the old versus the new enterprise agreement have no foundation. And unless there's anything in particular, we press for the orders that are canvassed in our materials. And if I can be of any further assistance to your Honour, I would be happy to do so.

1. The ASC cannot be allowed to stand as a statement of Mr Estonina's case. It is impossible to discern from it with any tolerable degree of certainty, and without in any event expending much effort and time, the material facts on which Mr Estonina relied in support of the claims for relief he makes. It would be oppressive to Woolworths to require it to respond to such a document. Two questions, therefore, arise. The first is whether, given the knowledge I have gained from reading the material, and hearing what Mr Estonina said at the hearing, it is possible to discern from the ASC and the material Mr Estonina filed any potentially arguable causes of action which, in justice, Mr Estonina should be given a further opportunity to properly formulate. The second question is, assuming any such potential cause of action can be discerned, whether, if given the opportunity, Mr Estonina would have reasonable prospects of sufficiently formulating and prosecuting any such claims.

1. In approaching these questions it is necessary to note that, despite the length and number of the documents Mr Estonina has filed, the claims he makes arise out of a relatively small set of facts. Additionally, at least some of the claims Mr Estonina makes may reasonably be considered to be attached to those facts. In broad terms the facts are as follows:

(a) By 23 September 2022 Woolworths became aware that Mr Estonina may not have been paid the appropriate amount for the time he took leave because he had COVID. By 11 January 2023, the error was rectified and Woolworths apologised to Mr Estonina for the error.

(b) In around September 2022 Woolworths commenced an investigation into an allegation Ms Warren made in relation to Mr Estonina; and by 1 November 2022 Woolworths found the allegation to have been substantiated.

(c) On 13 September 2022 Mr Estonina reported an incident of sexual harassment that occurred in March 2019.

(d) On 10 January 2023 Mr Estonina met with Ms Quirk, the "HR/Employee Relations MGR of Woolworths", and Ms Sirijovska in which he discussed his complaint about the sexual harassment incident. Ms Quick used the word "shit" during the meeting.

(e) On 11 January 2023 Mr Estonina lodged a complaint about matters that occurred at the meeting of 10 January 2023. And Mr Estonina later lodged additional complaints.

(f) On 30 March 2023 Mr Estonina met with Mr Spiteri, who informed Mr Estonina of the outcomes of the various concerns Mr Estonina had raised. The outcome was recorded in a letter dated 30 March 2023 which was handed to Mr Estonina during the meeting (this being the "Spiteri Letter" I identified earlier in these reasons). In the meeting, or as confirmed in the Spiteri Letter (or both), Mr Spiteri informed Mr Estonina that Mr Estonina had "sent approximately 90 emails to the People Advisory team as well as others"; that many of them were "repeated emails of the same issues and concerns"; and that the "repeated and excessive volume of correspondence from" Mr Estonina was "not appropriate and could amount to harassing behaviour". Mr Spiteri then directed Mr Estonina "to raise any future concerns to [his] line manager or Store Manager in the first instance", and if "it is a matter they need support or guidance from another team such as Employee Relations or Safety, then [Mr Estonina's] leaders will escalate this accordingly". Mr Spiteri further directed Mr Estonina "to cease sending any correspondence about the matters we discussed today and as outlined in this letter".

(g) On 21 April 2023 Woolworths issued a letter to Mr Estonina in which it found that Mr Estonina had failed to comply with the directions contained in the Spiteri Letter, and Mr Estonina was directed to "raise any concerns to [his] line manager or Store Manager", and "refrain from sending any correspondence about the matters that have been addressed and closed out with [him] as per the letter issued to you on 30 March 2023, including to group inboxes".

(h) On 22 September 2023 Woolworths sent a letter to Mr Estonina in which it informed him of the 30 August Allegations; and Mr Estonina was directed to attend a meeting at 4.30 pm on 26 September 2023. (The scheduled meeting was changed to 9 October 2023.) Woolworths informed Mr Estonina that the allegations and the investigation of the allegations were confidential, and directed him not to discuss the matter with any other person (other than a person acting as his support person), "particularly any other team members who may be involved in [the] investigation".

(i) On 25 September 2023 Woolworths suspended Mr Estonina's employment.

(j) On 9 October 2023 Mr Estonina met with Ms Wood, Product Owner - Team Manager, and Mr Devine, Employee Relations Case Specialist "acting as Company witness", to discuss the 30 August Allegations.

(k) Between 9 and 20 October 2023 Mr Estonina obtained statements from persons in relation to the 30 August Allegations.

(l) On 25 October 2023 Woolworths notified Mr Estonina of a further two sets of allegations of misconduct.

(m) On 23 November 2023 Woolworths sent a letter (being the "23.11.2023 Show Cause Letter" I identified earlier in these reasons) to Mr Estonina, noting that it had found substantiated three of five allegations of misconduct. These allegations were that Mr Estonina failed to treat Ms Rosevear and Ms Mckenzie with dignity, courtesy and respect when he spoke to them in a raised voice and aggressive tone; Mr Estonina failed to keep confidential the 30 August Allegations; and Mr Estonina failed to comply with Woolworths's direction that Mr Estonina only raise new issues with his store manager. The Show Cause Letter stated that the "substantiated conduct is serious and constitutes misconduct"; Woolworths was considering taking disciplinary action, including termination of Mr Estonina's employment; and asked Mr Estonina to provide a written response by 27 November 2023.

(n) Mr Estonina did not provide a written response until 2 January 2024 in which he did little more than request information. Mr Estonina did, however, send emails to Mr Banducci on 26 November 2023, 18 December 2023, and on 4 January 2024; but Mr Estonina did not in this correspondence refer to or answer the matters stated in the Show Cause Letter.

(o) Woolworths responded to Mr Estonina's letter of 2 January 2024 by letter dated 22 January 2024, noting that the information Mr Estonina had requested in his letter had been provided in the Show Cause Letter.

(p) On 5 February 2024 Woolworths provided the Termination Letter to Mr Estonina.

Did Woolworths fail to comply with cl 22.1 of the EA?

1. As I have already noted, Mr Estonina submits that in dealing with the 30 August Allegations in the manner it did, Woolworths failed to comply with cl 22.1 of the EA because it bypassed Mr Estonina's manager. This submission implies that, on Woolworths having been informed of the 30 August Allegations, it was bound by cl 22.1 of the EA to first raise the matter with Mr Estonina's store manager. Mr Estonina has no reasonable prospects of succeeding on this allegation.

(a) First, no dispute arose between Woolworths and Mr Estonina in relation to the 30 August Allegations by the time Woolworths sent its letter dated 22 September 2023. By that stage Woolworths had become aware of the 30 August Allegations, and it did not know whether Mr Estonina would dispute those allegations; and in any event Woolworths did not know whether it would conclude that the 30 August Allegations would be substantiated. At the meeting of 9 October 2023 Mr Estonina did dispute the 30 August Allegations. But that did not raise a dispute between Woolworths and Mr Estonina. The purpose of the meeting was for Woolworths to hear Mr Estonina's response to the 30 August Allegations. It is arguable, however, that after Mr Estonina received the 23.11.2023 Show Cause Letter, Mr Estonina disputed Woolworths' conclusion that the 30 August Allegations had been substantiated. Mr Estonina, however, did not communicate to Woolworths he disputed the finding; or if he did, Mr Estonina did not himself seek to discuss the dispute at the workplace level. Mr Estonina's not having done so, Woolworths cannot be said to have failed to abide by cl 22.1.

(b) Second, assuming Mr Estonina did dispute Woolworths's finding that the 30 August Allegations had been substantiated, that dispute could not reasonably fall within the scope of cl 22.1 of the EA. The fact that cl 22.1 provided that a dispute should in the first instance be discussed at the workplace level between the team member and his or her supervisor or management suggests that the dispute must be one that it would be appropriate for, or within the authority of, the manager or supervisor to seek to resolve. The dispute that will have arisen out of Mr Estonina's disputing the findings Woolworths made in the 23.11.2023 Show Cause Letter, however, is not one that could be supposed to have been a dispute that the manager or supervisor at the store level had the authority to resolve.

(c) Third, there is no evidence that Mr Estonina disputed Woolworths's findings that the two other allegations had been substantiated. The first allegation was that Mr Estonina refused to comply with the direction Woolworths gave in its letter dated 22 September 2023 that Mr Estonina was to keep confidential the 30 August Allegations and the fact that those allegations were being investigated. The second allegation was that Mr Estonina refused to comply with the direction that he raise new issues only with his store manager.

Did Woolworths substantiate the grounds on which it decided to terminate Mr Estonina's employment?

1. Woolworths purported to terminate Mr Estonina's employment on two sets of grounds. The first is that Woolworths found the 30 August Allegations to have been substantiated; and the second is that Mr Estonina failed to comply with lawful and reasonable directions. Assuming the onus would be on Woolworths to justify its termination of Mr Estonina's contract of employment, there is insufficient material before me on the basis of which I could conclude that Mr Estonina would have no reasonable prospects of defeating Woolworths's claim that Mr Estonina failed to treat Ms Rosevear and Ms Mckenzie with dignity, courtesy and respect when he spoke to them in a raised voice and aggressive tone. Mr Estonina would not, however, have reasonable prospects of defeating Woolworths's claim that Mr Estonina failed to comply with the directions the 23.11.2023 Show Cause Letter found Mr Estonina failed to comply with; and that is because Mr Estonina did not dispute that he failed to comply with those directions; and the evidence in any event overwhelmingly supports a finding that Mr Estonina did not comply those directions.

Was it open to Woolworths to give Mr Estonina the directions which Woolworths claimed he failed to comply with?

1. Mr Estonina (in effect) contends that it was not open to Woolworths:

(a) to direct Mr Estonina, as it did in the Spiteri Letter, "to raise any future concerns to [his] line manager or Store Manager in the first instance", and if "it is a matter they need support or guidance from another team such as Employee Relations or Safety, then [Mr Estonina's direct] leaders will escalate this accordingly";

(b) to direct Mr Estonina, as it did in its letter dated 21 April 2023, to "raise any concerns to [his] line manager or Store Manager", and "refrain from sending any correspondence about the matters that have been addressed and closed out with [him] as per the letter issued to [him] on 30 March 2023, including to group inboxes"; and

(c) to direct Mr Estonina, as it did in its letter dated 22 September 2023, that he keep confidential the making and investigation of the 30 August Allegations.

1. Mr Estonina relies on two grounds. The first is that the directions were contrary to cl 2.6 of the EA; and the second is that the directions Woolworths made in the 22 September 2023 letter were contrary to the TER.

1. Construed literally, cl 2.6 of the EA assumes team members have an unrestricted right to communicate with their manager or People Advisory in relation to anything the team member feels is not right. It is not reasonably arguable, however, that cl 2.6 is in fact unrestricted. Clause 2.6 does not contemplate that a team member can speak up on any topic, without limit to how many times they may speak up on a topic, whether or not it relates to his or her employment, only because the team member subjectively feels that the things about which he or she speaks up about is not right. Nor does cl 2.6 contemplate that the team member could continually speak up on the same thing if he or she does not obtain the resolution of the speak up the team member believes he or she should obtain. Clause 2.6 must be read in the context of the EA as a whole, and in particular cl 22.1 of the EA which deals with disputes.
2. The exercise of the power to speak up conferred by cl 2.6 of the EA, therefore, is limited by a number of matters:

(a) the team member must be able to identify the thing he or she feels is not right; and articulate why the employee feels the thing is not right;

(b) the thing the team member feels is not right must relate to the EA, or the National Employment Standards (these being the subjects of the dispute provided for by cl 22.1 of the EA) or the team member's employment generally;

(c) the speak up must be something that is amenable to being addressed in some way by the person to whom the speak up is addressed;

(d) the speak up must in the first instance be directed to the person or person who has it within his or her power to address the thing raised by the speak up;

(e) the team member must afford the person to whom the speak up is directed reasonable time to address the speak up; and

(f) where the team member is not satisfied with the outcome of the speak up, the team member should invoke the dispute resolution provisions contained in cl 22.1 rather than renew the speak up to the person to whom it was originally made or to some other person, or by embarking on further communications challenging or questioning the response (or non-response) made to the speak up.

1. Further, cl 2.6 must be read in the context of the duty that is ordinarily implied in contracts of employment that "an employee is under a duty to obey any lawful and reasonable direction given by the employer".[89] Given the breadth of the cl 2.6 of the EA, and the potential for its being used beyond the reasonable bounds of its intended operation, it would be open to Woolworths, as an employer, to give reasonable directions concerning the manner in which a team member may exercise the rights conferred by cl 2.6, at least after a team member purports to exercise rights under that clause in an unreasonable manner.
2. The evidence reveals that Mr Estonina did not abide by the limitations surrounding the use of cl 2.6. In the Spiteri Letter (which is dated 30 March 2023) it was stated that since September 2022 Mr Estonina had sent approximately 90 emails to the People Advisory team as well as to others, and that many of the emails repeated emails of the same issues and concerns. In its letter dated 11 April 2023 Woolworths found that on 31 March 2023, one day after he met with Mr Spiteri, Mr Estonina sent two emails to Group Compliance, People Advisory, Privacy and Mr Spiteri in which Mr Estonina raised matters that had already been addressed with him. Additionally, in the Show Cause Letter, Woolworths identified Mr Estonina sent 16 emails from 9 October to 30 October 2023. Further, the "speak ups" that are in evidence are difficult to understand. In particular, it is difficult to identify the things Mr Estonina claimed were not right, why he claimed they were not right, and the actions he considered should be taken to address the "speak ups".
3. In those circumstances, I am satisfied Mr Estonina would not have any reasonably prospects of succeeding on the contention that the directions Woolworths gave in the Spiteri Letter, and in the letter dated 21 April 2023 that Mr Estonina "raise any concerns to [his] line manager or Store Manager", and that Mr Estonina "refrain from sending any correspondence about the matters that have been addressed and closed out with [him] as per the letter issued to [him] on 30 March 2023, including to group inboxes" were unreasonable or contrary to cl 2.6 of the EA. I am satisfied that Mr Estonina would have no reasonable prospects of defeating a submission to the effect that the directions Woolworths gave were a reasonable and lawful response to the unreasonable manner in which Mr Estonina had purported to exercise his rights under cl 2.6 of the EA.
4. I am also satisfied that Mr Estonina would not have reasonable prospects of successfully contending that cl 2.6 of the EA prevented Woolworths from directing Mr Estonina, as it did in its letter dated 22 September 2023, that he must keep confidential the making and investigation of the 30 August Allegations. That was not a direction which in terms directed Mr Estonina not to speak up when he feels that something is not right.

1. Mr Estonina claims that the directions Woolworths gave in its letter dated 22 September 2023 that he keep confidential the making and investigation of the 30 August Allegations was contrary to Article 9 of the TER. As I noted earlier in these reasons, Article 9 of the TER provides that a worker "should be entitled to be assisted by another person when defending himself, in accordance with Article 7 . . . against allegations regarding his conduct or performance liable to result in the termination of his employment". Article 7 provides that the "employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning".
2. The difficulty with Mr Estonina's claim is that it assumes that the TER is incorporated into the law of Australia. That, however, is not correct. Article 1 of TER provides:

The provisions of this Recommendation may be applied by national laws or regulations, collective agreements, works rules, arbitration awards or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions.

1. Australia has given effect to the TER by Parliament amending the FW Act to include Part 6-4 of Chapter 6 to the FW Act. Part 6-4 does not contain provisions in terms of Article 7 or 9 of the TER.

1. Mr Estonina has no reasonable prospects of succeeding on any of his claims based on sexual harassment.

(a) As I have noted above, s 527D came into effect on 6 December 2022, which is after the date on which the sexual harassment incident occurred. Woolworths, therefore, could not be responsible for an employee's having engaged in sexual harassment in 2019.

(b) It is the case that the Spiteri Letter found that the sexual harassment complaint Mr Estonina made was substantiated; and it also found there was delay in dealing with the complaint. Mr Estonina has not, however, identified any law Woolworths breached or may have breached because of any delay in investigating Mr Estonina's complaint.

(c) Even if it be assumed that in relation to the sexual harassment complaint Mr Estonina made Woolworths fell short of its policies and procedures, that by itself would be incapable of rendering false or misleading any statement Woolworths made to the ASX, to the Workplace Gender Equality Agency, or to the public, that it has policies in relation to sexual harassment.

(d) Section 28M and s 47C of the SD Act came into effect on 12 December 2022, almost four years after the sexual harassment incident occurred. Mr Estonina filed no complaint with the AHRC pursuant to s 46P of the AHRC Act in relation to an alleged contravention of s 28M; and an alleged breach of s 47C of the SD Act is not a matter in relation to which the AHRC Act permits the filing of a complaint pursuant to s 46P.

1. As I have already noted, Woolworths acknowledged that it made incorrect payments for the time Mr Estonina was on leave because he was ill with COVID; and that it did not rectify that error until January 2023. Mr Estonina, however, does not claim an order for pecuniary penalty or declaratory relief in relation to this matter. Even if he did claim such relief, there would be a lack of proportionality between the resources that would be required to determine whether Woolworths contravened any relevant provision of the FW Act and, if so, the relief to which Mr Estonina may be entitled, and the interests at stake. For that reason I would not permit Mr Estonina to seek to amend the originating application to claim relief in relation to the incorrect payments Woolworths made when Mr Estonina was on leave because he had COVID.
2. The claims for wages Mr Estonina makes in paragraphs 41-49 are entirely unparticularised. Given the large number of documents Mr Estonina has filed, and the time over which he has filed them, I am satisfied that Mr Estonina would not have any reasonable prospects of being able to articulate any reasonable claim for underpayment of wages.

1. I make the following findings in relation to Mr Estonina's other claims:

(a) Mr Estonina has not articulated any arguable cause of action based on defamation. It is not possible to identify from the ASC the defamatory imputation he alleges was conveyed by the email Woolworths's lawyer sent to Mr Estonina's lawyer on 27 September 2023, other than the allegation that Mr Estonina was accused of a false crime. In any event, given the email by which it is alleged Mr Estonina was defamed was published only to one third party, namely, Mr Estonina's lawyer, Mr Estonina would have no reasonable prospects of establishing that the publication of the email "caused, or is likely to cause, serious harm to the reputation of" Mr Estonina within the meaning of s 10A(1) of the Defamation Act 2005 (NSW).

(b) There are no reasonable prospects that Mr Estonina would succeed on any cause of action based on Ms Quirk having stated at the meeting of 10 January 2023 that Mr Estonina had a "shit experience"; or based on his not being accorded a face to face meeting in relation to the investigation of Ms Warren's allegation.[90]

(c) Mr Estonina does not claim Woolworths suspended him without pay; he claims Woolworths was not entitled to suspend his employment. Mr Estonina does not identify, however, the basis on which he asserts that Woolworths was not entitled to suspend him from performing work while still paying his wages. In general an employer is entitled to direct an employee not to work, at least for a limited time or for a limited purpose, yet continue to pay the employee wages. In Avenia v Railway & Transport Health Fund Ltd, Lee J said: [91]

Without needing to rely on an implied duty of mutual trust and confidence or good faith, Rothman J held, as a general proposition, that a direction to suspend would be reasonable and lawful (at [413]):

...[i]n circumstances where an employer, bona fide, takes a view that during the course of such an investigation, the continued performance of duty by an employee is inconsistent with its interests, it is entitled, under the terms of the contract of employment, to direct the employee not to perform work.

(d) Each of the other claims it may be discerned Mr Estonina made - the EA is invalid, Woolworths contravened OHS laws; bullying; discrimination; undue influence; and Woolworths lying to FWC - are assertions made without any stated alleged material facts.

1. Even if I were able to discern among the mass of material Mr Estonina filed one or more reasonable cause or causes of action, I would not grant Mr Estonina leave to restate any part of his claims. Given the number of documents Mr Estonina has filed, the period over which he had filed them, and their contents, I am satisfied there are no reasonable prospects that Mr Estonina would be able to frame a comprehensible claim, or a claim which would satisfy the minimum requirements of fair notice to Woolworths of the claims Mr Estonina desires to make against it.
2. The 1399 proceeding, as it is currently framed, and as Mr Estonina has advanced it, is vexatious; and there is every reason to believe that the 1399 proceeding would continue to be vexatious if I were to grant Mr Estonina leave to reformulate any of his claims.

1. For these reasons, I am satisfied that an order should be made pursuant to s 143(2) of the FCFC Act and r 23.08(1) of the GFL Rules that the 1399 Proceeding be dismissed.

1. I propose to make an order in each of the 1025 Proceeding and the 1399 Proceeding that the proceeding be dismissed. I will also grant to the parties liberty to apply on the question of costs, such liberty to apply to be exercised no later than 35 days after I pronounce orders.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Excluding affidavits of service, in the 1025 Proceeding Mr Estonina filed affidavits on 26 June 2024, 29 June 2024 (which also annexes an affidavit made on 26 April 2024 filed in the Federal Court proceeding which became the 1399 Proceeding), 18 July 2024, 31 July 2024 (two), 3 August 2024, 5 August 2024, 21 January 2025 and 4 February 2025; Mr Estonina filed statements of claim on 7 July 2024, 22 July 2024, 31 July 2024, 2 August 2024, 4 August 2024, and 17 December 2024; Mr Estonina filed "Outline of Submissions" on 4 June 2024 and 4 February 2025; Mr Estonina filed an "Expert report" on 3 August 2024and 30 January 2025; and Mr Estonina filed a "reply" on 18 July 2024, and 8 October 2024.

[2] Affidavit M A Estonina 29.06.2024, [10]; annexure "AMAE7".

[3] Affidavit M A Estonina 02.07.2024, [19].

[4] Affidavit M A Estonina 02.07.2024, [21]; Annexure "AMAE10".

[5] Affidavit M A Estonina 02.07.2024, [21].

[6] Affidavit M A Estonina 31.07.2024, [18]; annexure "AMAE25".

[7] Statement of Claim filed 02.08.2024, [6.4]; affidavit M A Estonina 31.07.2024, [4]; annexure "AMAE27".

[8] Affidavit M A Estonina 26.04.2024, [7]; annexure "MAE9" (filed in proceeding NSD307/2024).

[9] Affidavit M A Estonina 26.04.2024, [8]; annexure "MAE10" (filed in proceeding NSD307/2024).

[10] Affidavit M A Estonina 26.04.2024, [10]; annexure "MAE11" (filed in proceeding NSD307/2024) (errors in original).

[11] Affidavit M A Estonina 26.04.2024, [7]; annexure "MAE9" (filed in proceeding NSD307/2024).

[12] Affidavit M A Estonina 26.04.2024, [38.a.]]; annexure "MAE27" (filed in proceeding NSD307/2024).

[13] Affidavit M A Estonina 26.04.2024, [15]; annexure "MAE15" (filed in proceeding NSD307/2024).

[14] Affidavit M A Estonina 26.04.2024, [16], [17]; annexure "MAE16", "MAE17" (filed in proceeding NSD307/2024).

[15] Affidavit M A Estonina 26.04.2024, [19]; annexure "MAE19" (filed in proceeding NSD307/2024).

[16] Affidavit M A Estonina 26.04.2024, [20]; annexure "MAE20" (filed in proceeding NSD307/2024).

[17] Affidavit M A Estonina 26.04.2024, [21]; annexure "MAE21" (filed in proceeding NSD307/2024).

[18] Affidavit M A Estonina 26.04.2024, [38.b.]; annexure "MAE28" (filed in proceeding NSD307/2024).

[19] Affidavit M A Estonina 26.04.2024, [25]; annexure "MAE22" (filed in proceeding NSD307/2024).

[20] Affidavit M A Estonina 26.04.2024, [26]; annexure "AMAE23" (filed in proceeding NSD307/2024).

[21] Affidavit M A Estonina 31.07.2024, [18]; annexure "AMAE25".

[22] Affidavit M A Estonina 26.06.2024, [5].

[23] Affidavit M A Estonina 31.07.2024 (No 2), [5]; annexure "AMAE28".

[24] Affidavit M A Estonina 05.087.2024, [8]; annexure "AMAE36".

[25] Affidavit M A Estonina 05.087.2024, [9]; annexure "AMAE37".

[26] Affidavit M A Estonina 05.087.2024, [10]; annexure "AMAE38".

[27] Affidavit M A Estonina 29.06.2024, [9]. A full copy of the letter is annexure "AMAE27" to affidavit M A Estonina 03.08.2024.

[28] Affidavit M A Estonina 29.04.2024, [4]; annexure "MAE37".

[29] Affidavit M A Estonina 03.08.2024, [12]; annexure "AMAE30".

[31] Affidavit M A Estonina 29.04.2024, [5]; annexure "MAE45".

[32] Affidavit M A Estonina 29.04.2024, [6]; annexure "MAE46".

[33] Affidavit J P Xiao 14.03.2025, [8]' annexure "JPX-2" (filed in 1399 Proceeding).

[34] Affidavit M A Estonina 31.07.2024 (No 2), [7]; annexure "AMAE30".

[35] Affidavit M A Estonina 26.06.2024, [8] (emphasis in original).

[36] Affidavit M A Estonina 29.04.2024, [2-3]; annexures "MAE36", "MAE37".

[37] Affidavit of J P Xiao 14.03.2025, [16]; annexure "JPX-2".

[38] Affidavit J P Xiao14.03.2025, [8]; annexure "JPX-2".

[39] Affidavit M A Estonina 04.05.2024, [3]; annexure "MAE55" (filed in proceeding NSD307/2024).

[40] Affidavit M A Estonina 04.05.2024, [3]; annexure "MAE56" (filed in proceeding NSD307/2024).

[41] Affidavit M A Estonina 04.05.2024, [6]; annexure "MAE58" (filed in proceeding NSD307/2024).

[42] Affidavit M A Estonina 03.08.2024; annexure "AMAE33".

[43] Affidavit J P Xiao 09.07.2024; annexure JPX-1.

[44] Affidavit M A Estonina 31.07.2024, [10]; annexure "AMAE19".

[45] Affidavit M A Estonina 31.07.2024, [12]; annexure "AMAE21".

[46] Affidavit M A Estonina 31.07.2024, [11]; annexure "AMAE20".

[55] Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, at [7].

[56] Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, at [36]-[38].

[57] Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43, at [27], [28] (footnotes omitted).

[58] Bleyer v Google Inc [2014] NSWSC 897.

[59] Bleyer v Google Inc [2014] NSWSC 897, at [56].

[60] Bleyer v Google Inc [2014] NSWSC 897, at [57]. Rule 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) is the equivalent rule to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

[61] Subsection 527D(1) of the FW Act provides that a "person (the first person) must not sexually harass another person (the second person) who is: (a) a worker in a business or undertaking; or (b) seeking to become a worker in a particular business or undertaking; or (c) a person conducting a business or undertaking; if the harassment occurs in connection with the second person being a person of the kind mentioned in paragraph (a), (b) or (c)". Part 3.5 of the FW Act, which includes s 527D(1), was inserted into the FW Act by item397 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Act No. 79, 2022). The amendment came into effect on 6 December 2022. Paragraph (3) of Item 60 in Part 13 of Schedule 1 to that Act provides: "Subsection 527D(1) does not apply in relation to sexual harassment of a worker if the sexual harassment is part of a course of conduct that begins before the commencement of Division 1 of Part 8 of Schedule 1 to the amending Act.".

[62] Bird v DP (a pseudonym) [2024] HCA 41 (footnotes omitted), at [44], [45].

[63] Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235, at [138].

[64] Outline of Submissions of the respondent in Support of an Application to Summarily Dismiss the Proceedings, [67] (footnotes omitted).

[68] T30.5: "HIS HONOUR: So you're saying was that it contravenes section 340 because the reason for which the term[ination] . . . was not substantiated." "MR ESTONINA: That's correct".

[89] Bayley v Osborne [1984] 4 FCR 141, at page 145 (Davies J).

[91] See Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859, at [166].