Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943

Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943 | Case summary | Zoe

[18]

In this proceeding the applicant, Mr Filip Naskovski, alleges that the respondent, Hisense Australia Pty Ltd (Hisense), contravened s 340 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him because or for reasons which included that he exercised one or more workplace rights.
The substance of the claim is that unfounded allegations were made against Mr Naskovski, and he was later dismissed from his employment with Hisense because he made complaints and inquiries about his employment and exercised his right to take personal leave.
Mr Naskovski also alleges that he was underpaid during his employment with Hisense, reflecting a failure of Hisense to properly account for the hours that he worked and a failure to pay him in accordance with his correct classification under the Clerks - Private Sector Award 2020 and the Clerks - Private Sector Award 2010 (Award).
Mr Naskovski seeks compensation for economic and non-economic loss suffered by reason of the dismissal and compensation for the alleged breaches of the Award. He seeks the imposition of pecuniary penalties. It was agreed and the subject of orders made on 6 October 2023 by consent, that the matter be bifurcated, so that questions of liability be dealt with and resolved before any further hearing (if required) on quantum of underpayment, compensation and/or penalty.
The trial of this matter was heard on 29 and 30 January 2024. Mr Lake of counsel appeared for Mr Naskovski and Mr Lettau of counsel represented Hisense.
At trial, Mr Naskovski read and relied upon the following three affidavits:
- Affidavit of Filip Naskovski affirmed 24 March 2023 (first Naskovski affidavit).[1]
- Affidavit of Filip Naskovski affirmed 4 August 2023 (second Naskovski affidavit).[2]
- Affidavit of Filip Naskovski affirmed 8 December 2023 (third Naskovski affidavit).[3]
Mr Naskovski also read and relied on the affidavit of Louise Emmitt affirmed 3 August 2023.[4]
Ms Ran Sun was the only witness for Hisense. Prior to the hearing she filed affidavits affirmed 1 June 2023 (first Sun affidavit)[5] and 9 November 2023 (second Sun affidavit).[6]
All witnesses were cross-examined.
Prior to the hearing both parties filed a set of written submissions.[7] At the close of evidence, I heard oral submissions from both parties.
Having heard and considered all the evidence and the parties' submissions, I have concluded that Mr Naskovski has established a case for relief reflecting a breach by Hisense of s 340 of the FW Act as well as breaches of the Award relating to underpayments and misclassification.

[85]

Hi Ran,

I am unwell, and I am on sick leave. I presume you received the medical certificate I sent you on Tuesday? Your unreasonable demands, deadlines and disciplinary threats are not appreciated, and are highly distressing. The previous of which was sent to me on Friday, with the deadline being the following Monday, where you also only saw fit to contact me via mobile after the deadline had been and gone. I have already mentioned multiple times now, that I am unable to facilitate a zoom meeting. Please stop inviting me to them. It is highly unreasonable of you to continually do so and to expect a different reply.

I have already explained to you, in writing, why I sent what I sent to myself, that its purpose was as evidence of my workplace rights being infringed upon by Hisense, and that there has not been any misconduct from me. You've only made an unfounded assumption, and have also refused to provide me with the investigation records, if there are any, with any proof of misconduct.

As I have stated, my wellbeing has already been assessed by multiple physicians. Please let me know where it is stated that I am obligated to attend either the proposed welfare meeting, or duty medical assessment.

I have also expressed that if there is something you would like to discuss, I welcome you to do so in writing. Please point out any instance where I have, as you say, 'refused'. Unable, is not equal to refusal.

Regrettably, as your invitation letter states, the trust and confidence in our employment relationship has already been adversely affected, however this is due to Hisense's multiple failures to uphold its obligations in regards to the workplace rights of myself as an employee, the company's unwillingness and repeated refusal to rectify these failings, and the companies adverse response toward me due to my making enquiries related to said workplace rights, but has nothing to do with your absolutely unfounded claims of misconduct on my behalf, none of which have occurred.

Regards,

Filip

[96]

Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Part 3-1 of the FW Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons provided that the proscribed reason (or reasons) is a "substantial and operative reason" for the employer's adverse action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [104].
Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Part 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that Part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Section 539(1) of the FW Act is entitled "Applications for orders in relation to contravention of civil remedy provisions". Amongst other things, it identifies the provisions of the FW Act that qualify as a "civil remedy provision". Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of that section. The Court has the power to grant relief in the nature of declarations, compensation and penalties, among other things.
Section 739 of the FW Act deals with liability of bodies corporate. It relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate within the scope of his or her actual authority is taken, for the purposes of the Act, to have been engaged in also by the body corporate. Subsections (2) and (3) relevantly deal with how the state of mind of a body corporate is established.
The nature of the inquiry to be undertaken in the assessment of whether a decision maker has been actuated by a prohibited reason has been the subject of numerous decisions, many of which were helpfully summarised by the Full Federal Court in Alam v National Australia Bank Limited [2021] FCAFC 182; (2021) 288 FCR 629 at [14] as standing for principles that include:

[97]

...

d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

f) while the evidence of the decision-maker as to the reasons for the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];

g) the Court's rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be a "weighty consideration and often a determinative consideration" in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins v South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116], but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker's evidence about his or her asserted reason for dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action: ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]- [106];

h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);

the decision-maker's knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

[100]

Section 341(1) of the FW Act requires a causal link between the adverse action and the exercise or possession of the workplace right.
A threshold matter therefore is identification of the decision maker (or makers), recognising that where the respondent is a body corporate, the decision-making process will be carried out by its human officers, and it is the reasons for decision of those individuals that will usually be offered up for scrutiny.
Given Ms Sun's central role in most of the communications and events recorded above and Hisense's insistence that it was Ms Sun who acted alone to make the termination decision, the focus must naturally begin with the evidence that is capable of shedding light on the matters that informed Ms Sun's decision-making process.
In this category is the termination email sent to the applicant on 27 January 2022, which has been reproduced in full at [91] above. It also includes Ms Sun's affidavit evidence on the topic which was primarily contained in the first Sun affidavit where Ms Sun gave the following account of "The Dismissal".[70]
1. On 13 October 2021, ChannelNews published an online article about Hisense. This article made references to Hisense internal confidential emails.
2. I suspected that one or more of the internal emails were leaked to ChannelNews by a Hisense employee, so I instructed our I.T. Team to investigate whether these emails were sent outside of Hisense.
3. After I was informed by Mr Glover that the applicant would not be coming into work on 14 October 2021 due to sick leave, I accessed the applicant's work email account to check whether he had any outstanding work matters to deal with. This is when I found emails that the applicant had sent to his personal email address.
4. The applicant became my prime and only suspect as the person who had leaked Hisense's internal email to ChannelNews, so I then instructed our I.T. Team to revoke the applicant's access to his work emails, and this took effect on 14 October 2022 evening.
5. On 18 October 2021, I emailed the applicant to invite him to attend a disciplinary meeting on 19 October 2021, and laid out the allegation of serious misconduct against him.
6. I also sent the applicant two text messages on 18 October 2021.

[101]

...

On 18 October 2021 at 3.15 pm, the applicant responded to the 10.04 am email denying any involvement in wrongdoing and requesting that the meeting be rescheduled to be a face to face meeting in the office upon his return to work.

On 18 October 2021 at 5.24 pm I emailed the applicant. In this email I provided the applicant with detailed allegations, including that:

He had emailed a copy of the 12 October 2021 Global Hisense internal news update to his personal email address.

The news article published by 13 October 2021 quoted the exact same words from the Global Hisense internal news update.

On 19 October 2021, I received an email from the applicant in reply to my 18 October 2021 5.24 pm email. In this email the applicant denied that he had access to the Global Hisense internal news update.

...what the applicant wrote in his email to me on 19 October 2021 was not true. The applicant, as a Hisense employee, had a login and password to access the full newsletter behind the link on the 12 October 2021 email.

Notably for me, even as at the time of writing this affidavit, the applicant still has not deposed in any affidavit that he did not leak the internal document to ChannelNews.

Between 20 October 2021 and 27 January 2022, I communicated with the applicant by email.

On 27 January 2021, I made the decision to terminate the applicant. My reasons were:

Based on IT information, I suspected that the applicant had disclosed confidential and sensitive information to the public.

The applicant refused to participate in an interview with me about this issue, claiming on medical grounds not to be able to attend. At the time, I believed he was able to attend an interview with me, particularly when we offered to hold the meeting through video conference.

When we directed the applicant to attend a duty medical assessment, he refused to do so and this was, at the time in my view, a refusal of a lawful and reasonable direction.

I formed the opinion that the applicant probably was the person who leaked the sensitive information. I knew then, and accept now that I did not have perfect information available to me and that I did not have the "smoking gun" to prove it was the applicant who leaked the information. However, the suspicion he was under was significant, and he was proactively avoiding taking any steps to resolve that suspicion.

The leak of the sensitive information was a serious issue for the company. It published to the world a serious internal matter which compromised our reputation. It was equally untenable to keep employed a person who was suspected of harming the company in that way, and who was not taking steps to clear his name.

[105]

Mr Lake: ...and he tried a couple of passwords, but he didn't get entry because he couldn't remember his password. He ...?...

Ms Sun: Well, I didn't believe that because he has access to his email address; it's the same. We have an integrated Hisense account...

Mr Lake: Yes?...

Ms Sun: ...that everything you need to login - every website or email address is the same username and the same password.

Mr Lake: Okay. But his evidence is clear: he never accessed that document behind the link, and there's no evidence at all before the court that he did access that document. That would be information that would exist on the Hisense side of things. If you were able to access who had clicked on the link, you would also be able to access who had accessed the document behind the link?

Ms Sun: He has the access behind the link, because he has the access to the email account.

Mr Lake: Well...?

Ms Sun: It's the same password.

Mr Lake: ...did you ever check with IT who...?

Ms Sun: IT said that there is a list of the reader that actually clicked login that...

Mr Lake: There's a list of the readers...?

Ms Sun: Yes.

Mr Lake: ...or the Hisense employees who clicked on the link?

Ms Sun: That's what I mention we discuss previously.

Mr Lake: Yes. What about the list of Hisense employees who not only clicked on the link but who accessed the document behind the payroll, the - behind the login details?

Ms Sun: That's the list for - the name list is the one who actually clicked login and read the passage.

Mr Lake: Well, where does that - where is any of that said?

Ms Sun: Well, we have discussed this several minutes that it's a list of reader. I didn't say that because I - I think .... reading it, so I just gave up. I didn't say that.

Mr Lake: Ms Sun, it's totally implausible that this matter that you viewed as so serious that you would terminate an employee based on suspicions, that there is no records created then or available now?

Ms Sun: He was...

Mr Lake: Are you...?

Ms Sun: He was dismissed because he cannot follow the reasonable instruction. We asked him to participate in the discipline meeting to give further explanation and clarification, and we asked him to participate to the duty medical assessment, and he failed to - he refused to do so.

Mr Lake: Okay. We will...?

Ms Sun: That's the reason for dismissal.

Mr Lake: We will come to that. But the reason for the allegations was because of your suspicion that he had leaked this information. And I want to put to you a proposition - I want you to respond to it - it is completely implausible that an experienced HR practitioner, as you are, would not follow a proper documented process. And, indeed, the evidence that you've put before this court that is here in your affidavit is about the list being based on employees clicking on the link, not accessing what's behind the link. And you've known Filip's explanation since his second affidavit, that he never accessed what was behind the link?

Ms Sun: He - he has the access of the link behind.

Mr Lake: Well, I want to put to you that there is no evidence at all before the court that shows that that was what the list of employees generated referred to. The evidence before the court is that it was the list of employees that clicked on the link. And your attempts now to say it was something more than that is not credible. What do you say to that?

Ms Sun: I say that I saw those email forwarded to his personal email address. He has the access to that link with his password and username, which he definitely know at that time - well, yes. That's all I know.

[111]

Mr Naskovski submitted that despite there being direct evidence before the Court from the putative decision maker, Ms Sun, this was a case where there were sound reasons to treat this evidence with caution. First, it was said that the evidence was unreliable and second, it was contradicted by objective evidence.
Mr Naskovski submitted that Ms Sun had offered three reasons for the dismissal decision.
First, her suspicion that Mr Naskovski had leaked confidential information.
Second, Mr Naskovski's "refusal" to participate in an interview at the end of January 2022.
Third, Mr Naskovski's "refusal" to follow a "lawful and reasonable direction" to attend a medical assessment.
As to the first reason, it was undermined because objectively, Mr Naskovski was not responsible for the leak. The uncontroverted evidence before the Court was that Mr Naskovski had not forwarded the email of 2 February 2021 to his personal email account until after the publication of the ChannelNews article. This fact was said to be obvious and ascertainable from the "get-go".
Likewise, it was said that Mr Naskovski's evidence that he had never accessed the newsletter accessible via a link in the fraud and corruption email had not been seriously challenged by Hisense either at the time that he conveyed this information or subsequently.
As to the second and third reasons, Mr Naskovski submitted that neither document relied upon by Hisense as communicating or constituting a requirement or direction to attend a medical examination or a disciplinary meeting, in fact possessed this character. Both emails have been reproduced earlier - at [87] and [89] respectively - and contain language which Mr Naskovski submits falls short of communicating an instruction that was directory in nature.
Mr Naskovski submitted that the performance of Ms Sun as a witness had characteristics in common with those the subject of observations made by Reeves J in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199 at [25] where his Honour said:

[115]

Mr Naskovski submitted it to be also significant that Hisense had produced no documentary evidence that went to any of the issues relating to the general protections claim. It was especially perplexing that there were no documents about the investigation of the leak, in circumstances where it was Ms Sun's evidence that the legal team, compliance team and IT team were each involved. It was striking that Ms Sun had been unable to remember who she spoke to in IT and how many names were on the list which she said IT had produced. Ms Sun was unable to say where that list was now located. Given the apparent significance of the leak to the reputation of the business, it was confounding that there was no evidence of the involvement of Hisense Global.
Mr Naskovski submitted that Ms Sun's evidence about the explanation for the search of his email account and the timeline over which this occurred strained credibility. He submitted that Ms Sun had unsatisfactorily explained why she had immediately looked at Mr Naskovski's sent folder, the timeline over which her request to IT had been made and then actioned, and why a person occupying the role of senior HR in the Australian branch of Hisense would be responsible for performing this search.
Mr Naskovski characterised his adverse action case as one where the reverse onus had work to perform and in doing so took the Court to Eckel v Ballarat Community Health Ltd [2022] FedCFamC2G 890, a case which counsel described as having parallels with the present case. In particular, no direct evidence from Mr Glover or the managing director was put before the Court and the documentary evidence did not plug gaps or provide explication that might otherwise compensate for this omission.
Mr Naskovski submitted that Ms Sun's implausible accounts and explanations given through cross-examination were significant and formed part of the objective circumstances against which Hisense's postulated reasons were to be evaluated. As examples, Mr Naskovski cited:
- The claim that staff email passwords were routinely reset;
- The manner in which Mr Naskovski's request to take annual leave following the exhaustion of his sick leave was handled with counsel describing this as "cold-hearted and callous" and which suggested that other motivations were at play.
- The repeated threats made by Ms Sun to terminate Mr Naskovski's employment if particular things were not done, the "new starter" forms being the worst example;
- The clumsy approach taken to back-pay;
- The occasions where employee records were not provided to Mr Naskovski including because they had been lost.[84]
- The wrongful deduction on Melbourne Cup Day of personal leave.
Mr Naskovski submitted that these collection of circumstances and events were indicative of an approach to HR and administration that was not consistent with an organisation of 80 to 100 people, let alone an organisation that formed part of a large global company of around 80,000 employees.
Mr Naskovski submitted that on this basis, the Court should find that his complaints, inquiries and his taking of personal leave were an operative reason for the adverse action taken. Mr Naskovski submitted that the making of the allegation was a species of adverse action but one that ultimately (and against the submission to the contrary of Hisense) would not alter the outcome or analysis to be applied to the case given the relationship between the allegation, the pleaded workplace rights and the dismissal.

[118]

Third, there was evidence contained in the Myron dismissal email sent by Ms Sun to Hisense Australia staff on 2 February 2021 that Ms Sun had a history of endorsing a "zero-tolerance" approach.
Fourth, in an email send on 13 October 2021, being the day after the fraud and corruption email was circulated to Hisense employees, Mr Finn Zhang, Managing Director of Hisense Australia, reminded staff "that internal notices are confidential in nature and should not be shared externally".[87]
Fifth, the ChannelNews article was accessible online and named, quoted from and identified Ms Sun by photo.
Hisense submitted that the question for the Court devolved to what was the most likely explanation for the making of the allegation and the decision to dismiss Mr Naskovski from employment? Hisense submitted that it was unlikely, having regard to the matters identified above, that the exercise of workplace rights by the applicant would have been a significant contributing factor to the decisions made by Ms Sun. This position was reinforced by the lack of evidence that Ms Sun had been obviously or evidently frustrated on the occasions that Mr Naskovski made employment complaints or inquiries.
Hisense submitted it to be contextually significant that Ms Sun had taken steps to correct back payments and was responsive to emails sent by Mr Naskovski; for example those sent on 16 July 2021 and 19 July 2021.
Hisense made the further submission that there was a lack of any temporal connection between the making of the various complaints and inquiries and the taking of adverse action. The submission was to the effect that the first of the complaints and inquiries had commenced in January 2019 and had continued across 2020 and more frequently in 2021 with the dismissal not occurring until January 2022. The meaningful intervening factor across this time-frame was the fraud and misconduct email and the publication of the ChannelNews article, the last of which named Ms Sun and communicated to the world at large serious allegations of fraud involving Hisense.
Hisense submitted that the decision taken by Ms Sun to issue the allegation and to dismiss Mr Naskovski was best explained by her account and narrative, being that she had formed a strong suspicion and suspected Mr Naskovski of being responsible for the leak of confidential information because she had found the relevant emails had been forwarded to his private email account in his email sent box.
Hisense submitted that it was entirely plausible that Ms Sun had not noticed that one of the emails forwarded by Mr Naskovski had been sent after the publication of the ChannelNews article. Ms Sun was convinced of the fact that Mr Naskovski was the source of the leak.
Hisense described the second aspect of Ms Sun's narrative as involving a form of "confirmation bias" in the sense that the failure of Mr Naskovski to attend an interview to discuss the matter of the alleged leak (citing medical reasons) was interpreted by Ms Sun as confirmatory of her suspicion of his guilt.
Hisense acknowledged through its counsel that it could accept that there was an element of unreasonableness in the decision and unfairness in the process to dismiss Mr Naskovski. However, the submission was made that such matters are not relevant to the determination to be made by the Court.
Hisense submitted that if necessary, it relied on the concept of "mistaken belief", which had been discussed in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, to vindicate the approach taken by Ms Sun to the involvement of Mr Naskovski in the leak of confidential information.
Hisense's counsel made the following submissions on the identity of the decision-maker:[88]

[119]

Mr Lettau: So the decision-maker issue - look, Ms Sun has made some candid comments in court about discussions that were had with other members of management. We wouldn't agree with - quite the way the applicant put it, that there was - there was a concession there of, you know, an actual decision-maker, actual separate decision-makers. The way we interpreted the evidence of Ms Sun was that there had been delegation to her to make the decision and that she had engaged in conversations with other members of management, but the actual person who formed the state of mind to make the decision, the person who sent through the emails, the person who formed the suspicions, the person who affected the decisions is Ms Sun. She is the, sort of the conduit through which everything occurs. Notwithstanding that she's engaging with people around her as she ought to and would in any context.

Her Honour: That's part of the difficulty, because we all know conduits can be influenced and informed by views of other people, and that's what the cases, of course, are directed at, is understanding what those sources of influence were.

Mr Lettau: Yes.

Her Honour: And here, we're entirely unilluminated as to even the identity, some respects, of who those persons were and what role they played. And that does leave the court in a difficult position in terms of being able to say emphatically one way or the other. I understand the full picture when it comes to the decision-making process that the respondent undertook, whether it was primarily through Ms Sun or whether it was informed to lesser or greater degrees by other individuals. At the moment, it seems to me that there is a gap in the information that is before the court, and that could have consequences for the ability of the respondent to discharge its reverse onus...

...

Mr Lettau: I see the point, and there is a gap. But our submission is that the gap doesn't create a problem for the rebuttal of the reverse onus, because for the reasons I've already stated, Ms Sun is the one in which all these states of mind are being formed. She's not a conduit in the sense that she, in the sense of, say, a wire through which electricity passes and which originates from a different source. She's the conduit in that she is - everything occurs within her mind. So that's our submission on the gap there. There is a gap but it doesn't - it doesn't obviate our ability to discharge the reverse onus.

[122]

Ultimately, following careful reflection on the evidence and submissions, and with reference to contemporaneous notes made at the time of hearing, I am not persuaded that Hisense has done enough to discharge its onus of proof to displace the presumption in s 361(1) of the FW Act that, when it took adverse action, in the form of making the allegation and then by dismissing Mr Naskovski from employment, it did so because he had exercised his workplace right to make a complaint or inquiry in relation to his employment or because he had exercised his workplace right to utilise personal leave.
My conclusion operates principally on an evaluation of the evidence of Ms Sun, who was held out by Hisense as the sole decision-maker, assessed against a myriad of objective facts and contextual matters. This analysis has led me to reject the reasons offered by Ms Sun for the making of the allegation and the decision to dismiss Mr Naskovski as representing the entirety of the matters that contributed in an operative sense to these decisions.
Let me explain why I have reached this conclusion.
In the first place, I accept the submission of Mr Naskovski that the fact the various employment complaints and inquiries were made over a period of time that spanned over two years does not preclude a conclusion that actions and decisions taken at the end of this period must be dissociated from such complaints and inquiries. While certainly not decisive of the matter, it is evident that at least from September 2021 up until the end of his employment, Mr Naskvovski and Ms Sun were exchanging regular communications about matters that bore a relationship to topics raised in the employment complaints and inquiries made across this period[89] and/or to issues related to Mr Naskovski's absence from work.
I do not accept (as Hisense suggests) that the nexus between the complaints and inquiries and the taking of personal leave on the one hand, and the taking of adverse action on the other, was punctuated in a meaningful way by the fraud and misconduct email and the publication of the ChannelNews article. Rather, I consider that the response of Hisense across this entire period (as communicated principally by Ms Sun) possessed a catalogue of characteristics that uniformly conveyed the message that Mr Naskovski was becoming a nuisance to Hisense management through his persistent efforts to obtain information and documentation that his status as employee entitled him to. The publication of the ChannelNews article did not act to disrupt this continuum but rather created the opportunity to put the blow-torch to Mr Naskovski. The response to the publication of the ChannelNews article took a more exaggerated form to those responses which had preceded it, but it was otherwise consistent in its tone and intent.
By this I mean that many of the emails sent by Ms Sun across the relevant period described at [164] above, adopted a high-handed, dismissive and at times, retaliatory approach, which was exemplified in the emails sent by Ms Sun on 6 October 2021 in which she first informed Mr Naskovski that she could not find his employment contract and then made the quite extraordinary demand of Mr Naskovski - who I note by this time had been an employee of Hisense for six years - that he provide evidence that he was "legal to work in Australia" and threatened some of action if he failed to do so. This approach was perfected in the approach taken by Ms Sun to the making of the allegation and the subsequent decision to terminate Mr Naskovski's employment. It also manifest in the correspondence sent by Ms Sun in which she made threats of disciplinary action and the pre-emptive foreshadowing of litigation proceedings in the email sent to Mr Naskovski on 18 October 2021, in which the allegation was first mentioned.
While I accept that the cause of action pursued by Mr Naskovski in this proceeding does not provide the opportunity or constitute the vehicle for a "broad inquiry as to whether [Mr Naskovski] has been subjected to a procedurally or substantively unfair outcome": Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J), I do not agree that matters of process or substance can be put to one side as wholly irrelevant simply because the FW Act delineates between unfair dismissal applications and applications made under Part 3-1 of the FW Act and requires disaffected employees to exercise a choice between the two causes of action when seeking to contest a dismissal decision.[90]
In Serpanos v Commonweath of Australia [2022] FCA 1226, [126]-[127] Snaden J observed:
1. That is not to say, however, that any substantive or procedural unfairness or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant. In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:

[124]

This reasoning recognises that while adverse action may be taken on a genuine and honest misapprehension of the facts, it is a permissible form of reasoning to infer from findings that operate inconsistently with the true state of affairs, that the postulated findings were not in fact made or concealed a different (proscribed) motive. Likewise, while the cause of action in this case crystallised at the time the allegedly proscribed conduct occurred, with the making of the allegation and the dismissal of Mr Naskovski from his employment with Hisense, this conduct did not occur in a vacuum. Instead, it involved the culmination of actions and events that have the potential to shed light on/and or inform how that conduct, and decision-making should be assessed. In other words, while neither the process adopted nor the adequacy of reasons relied upon by Hisense to explain decisions taken contrary to Mr Naskovski's interests constitute independent causes of action, any obvious deficiencies may give rise to an inference that adverse action was taken for an unlawful purpose, rather than for the innocuous reason/s offered by the employer.
In this case, the approach adopted by Hisense (through Ms Sun) to the making of the allegation and the subsequent decision to terminate Mr Naskovski's employment was remarkable for its catalogue of procedural and substantive deficiencies for which I consider no credible explanation has been provided. Illustrative of the flawed approach adopted by Hisense are the following examples:
First, the allegation was first communicated to Mr Naskovski by Ms Sun without particularisation and while Mr Naskovski was away on personal/sick leave.
Second, despite reference being made in an email sent on 18 October 2021 to a "full and detailed investigation of this matter", Hisense produced no evidence that the investigation had in fact proceeded beyond the cursory inquiry made by Ms Sun for a list of employees who had clicked on the link included in the fraud and corruption email.
Third, the first invitation sent to Mr Naskovski to attend a disciplinary meeting was sent to him by Ms Sun on 18 October 2021 and required his attendance at a meeting the very next day and while Mr Naskovski was still on personal leave.
Fourth, the approach adopted by Ms Naskovski's request to take annual leave once his personal leave had been exhausted was, by any measure, cold-hearted and antithetical to contemporary human resource practices. The reason offered for the denial of the request, being that annual leave could not be taken over the relevant period, did not provide a rational justification in circumstances where Mr Naskovski was going to be away from the workplace in any case, on account of his illness.
Fifth, the unfair and inaccurate characterisation by Ms Sun of the position adopted by Mr Naskovski to his attendance at the disciplinary meeting scheduled for 18 October 2021 (see [83] which Ms Sun described as a "refusal".
Sixth and relatedly, the unfair and inaccurate characterisation by Ms Sun of what was described in the letter of termination (and offered as a reason for dismissal) as Mr Naskovski's refusal to attend an "informal welfare meeting" and his refusal to attend a duty medical assessment. In neither case can it be said that Mr Naskovski refused to attend the events referred to. In relation to the "welfare meeting", Mr Naskovski communicated his inability to attend such a meeting and requested instead that this be done in writing. As far as the medical assessment was concerned, Mr Naskovski questioned the basis upon which Hisense could seek his availability and suggested instead (by reference to the employee handbook) that permission from the employee was first required.
Furthermore, while it is not the role of the Court to unravel what precisely occurred with respect to the investigation of the allegation and the decision to terminate Mr Naskovski's employment, it is clear that the narrative and explanations provided by Ms Sun were at times inconsistent, implausible in the sense of being contrary to human experience, and as a result, unreliable. It is troubling that in the recounting of decisions and events that resulted ultimately in the dismissal of a long-standing and, from all accounts, accomplished employee, there was a profound disregard for precision and documentation. The following examples illustrate this point. They are not intended to be exhaustive.
First, Ms Sun gave inconsistent evidence about whether she had given instructions to obtain access to and then checked Mr Naskovski's email account before or after IT produced the list of employees who had clicked on the external link in the fraud and corruption email.
Second, and relatedly, Ms Sun's evidence as to why she sought access to Mr Naskovski's email account was ambiguous. Was it because she sought to understand whether there were any emails in his account that required a response or was it because she was in receipt of the IT list and saw that Mr Naskovski was named on it. On either version, the explanation is troubling as it suggests that Ms Sun had chosen to zero-in on Mr Naskovski where there was no evidence that Hisense routinely interrogated the email accounts of absent employees and there was no evidence before the Court that Ms Sun had sought access and/or searched the email accounts of any of the other employees identified on the list from IT.
Third, Ms Sun offered a tenuous and frankly implausible explanation as to why she had not confined her search of Mr Naskovski's email to messages sitting in the "inbox".
Fourth, Ms Sun offered no explanation as to why Hisense had produced not a single document related to the investigation of the leak and Mr Naskovski's alleged involvement or any document, beyond the emails referred to already in this judgment (most of which were produced by Mr Naskovski) relating to the lead up to and decision to terminate Mr Naskovski's employment. In circumstances where the investigation of the leak had purportedly had the input of the Hisense internal compliance and legal team, this omission is, frankly, extraordinary.
More extraordinary and inexplicable however is that Ms Sun chose to level allegations of serious misconduct against Mr Naskovski without taking the most elemental precaution of checking that Mr Naskovski had accessed the document that was linked to the fraud and corruption email and that he had sent the Myron dismissal email at a time that preceded the publication of the ChannelNews article. It is also incredible that Ms Sun formed a belief that Mr Naskovski was her "prime and only suspect" based on these flimsy and incomplete inquiries.
Instead, it confirms that the lens applied by Ms Sun to Mr Naskovski was so lacking in objectivity that she did not care, one way or the other, whether the information upon which she acted was capable of substantiating the allegation. The same lens was applied to the approach to the management of Mr Naskovski's absence and ultimately, his dismissal. The approach involved a significant departure from the kind one would expect from an individual employed in the role of human resources manager, within a corporate group of the size and reach of Hisense.
Further, I have considered but do not find persuasive the following submissions made by Hisense by way of explanation of the attitude and approach adopted by Ms Sun to the making of the allegation and the decision to dismiss.
The first explanation or reason offered for Ms Sun's dogmatic approach to the suspected leak was that there was a historic connection between Mr Naskovski and Ms Myron that might have made Mr Naskovski a more likely suspect. I reject this explanation. It finds no support in the evidence. Ms Sun did not offer it as an explanation, even tangentially.
Likewise, little attention was directed by Hisense to the submission that Ms Sun's decision-making was informed by the corporate culture at Hisense. Ms Sun, apart from being taken, during re-examination, to the "corruption and fraud" article, gave no evidence as to how or even if, the corporate culture at Hisense had influenced decisions made by her that concerned Mr Naskovski.
Furthermore, while I accept that Hisense management communicated to its staff that it took a "hard line" approach to employee misconduct, this fact does not shed any light on how suspected misconduct would ordinarily be investigated and whether the approach taken by Ms Sun was consistent with Hisense practices or involved a departure from the norm. Generally speaking, including because a decision was taken to only lead evidence from Ms Sun, the Court was left to speculate about most aspects of the culture, operation and practices of Hisense. They could not form part of the objective circumstances, because so little was known about them.
I also reject the submission that Ms Sun was influenced in her decision to make the allegation and subsequently to dismiss Mr Naskovski, because Mr Zhang had sent an email reminding staff of obligations of confidentiality. In the first place, Ms Sun herself did not identify this as an explanation for the approach she took to the suspected leak of confidential information. More importantly however, the sending of this email was not capable of shedding light on the anterior and fundamental question in this case of why, to the exclusion of all Hisense Australia employees (each of whom presumably received the same email from Mr Zhang), Ms Sun focused so determinedly on Mr Naskovski as a potential leak of the confidential information.
Although it is not decisive in the resolution of this case, something should be said about the absence of Mr Glover from this proceeding. Assessing whether a particular reason is an operative or immediate reason for an adverse action calls for an inquiry into the mental processes of persons whose contribution to that conduct rose beyond some threshold level: Serpanos at [103] and [123]. The threshold has been described as "indispensable", "material", "significant", "plainly important", "major", "substantial" or "essential": Serpanos at [123]; Wong v National Australia Bank Limited [2022] FCAFC 155 at [82] (Katzmann, Charlesworth and O'Sullivan JJ).
The evidence of Ms Sun given in re-examination that she took advice from Mr Glover when she made the dismissal decision means that it is not possible to discount Mr Glover's contribution as satisfying this threshold measure, whichever adjective is applied.
Independent of my findings recorded above about the reasons supplied by Ms Sun, the failure of Hisense to put before the Court evidence as to the contribution made by Mr Glover and the considerations that informed such contribution to the decision making means that I cannot be satisfied that the role played by Mr Glover was benign, in the sense that it was dissociated from any proscribed reason pleaded in this case.
Mr Glover was the person to whom Mr Naskovski directly reported. He had been independently approached by Mr Naskovski to rectify alleged underpayments (this being the subject of the first employment complaint) and as the chronology set out at [17] to [92] reveals, he was copied by Ms Sun into a significant number of the emails that she sent to Mr Naskovski, including those which responded directly to emails that communicated an employment complaint or inquiry and/or broached the topics of access to employment records and the potential underpayment of wages.
While Hisense sought to understate Mr Glover's role in the decision-making process, the language adopted by Ms Sun did not differentiate between her contribution and that of Mr Glover or make efforts to subordinate it. Her unambiguous evidence was that the decision to dismiss Mr Naskovski was a joint one.
I consider for the foregoing reasons that Hisense has failed to discharge its onus that it took adverse action in the form of the allegation and the dismissal because Mr Naskovski exercised the workplace right to make a complaint or an inquiry about his employment and because he exercised his workplace right to take personal leave.
As noted earlier, Hisense denied that the allegation involved a species of adverse action. The basis for this denial was that as far as Mr Naskovski alleged an injury in employment, because he had not produced any evidence that the allegation itself had caused injury of a compensable kind and because he was already on sick leave at the relevant time, the characterisation was not open (relying on Australian Licensed Aircraft Engineers Association v Qantas Airways [2011] FMCA 58 at [24] and [29]). I accept this submission.
However, Mr Naskovski also seeks to characterise the allegation as involving a prejudicial alteration to his position as employee. While Hisense argues that any prejudice inherent in the allegation was ameliorated when Hisense offered Mr Naskovski an opportunity to respond to the allegation, I consider that this analysis misapprehends the nature of the action taken and the breadth of this species of adverse action.
I accept that alteration of a person's interest is a "broad additional category which covers not only legal inquiry but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question": Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [4]. I also accept the submission of Mr Naskovski that given the seriousness of the allegation and the entailing disciplinary process, the making of the allegation caused a real and substantial alteration of his position. This was confirmed by the subsequent reliance (in part) on the allegation and Mr Naskovski's supposed failure to respond, as a reason for terminating his employment. I consider that the making of the allegation was a second adverse action.

[147]

Mr Naskovski identified as examples of when he would also perform Team Leader duties as being when Mr Virk was absent from work, when he was covering Ms Myron's role and after Mr Virk's shift ended. It was common ground that Mr Virk did not work beyond 4.30 pm.
It was put to Mr Naskovski that the examples cited suggested that he performed duties consistent with the Team Leader role for only a small proportion of the time. Mr Naskovski gave what I considered to be a credible explanation when he said that the examples given represented those occasions when he was entirely engaged in higher duties. He told the Court that at other times he would perform his substantive role of Team Coach but would continue, as required, to perform other duties consistent with a Team Leader. The identification of his full range of duties did not distinguish between the role of Team Coach or Team Leader for this reason as the duties were interwoven.
During re-examination, Mr Naskovski was asked to state, in respect of each duty identified at [216] above, the extent to which he performed it. His responses were to the effect that he performed the duties identified at sub-paragraphs a, b, c, d, e, f, g, h, i, j and l on a regular basis and not simply when he was filling in for Mr Virk. In relation to sub-paragraph (k), Mr Naskovski acknowledged that he acted as late shift manager only after 4.30 pm but that in other respects, he performed the duties described on a regular basis. As far as sub-paragraph (m) was concerned, Mr Naskovski said that he was responsible for each of the duties described when the situation arose, and he would perform them alongside Mr Virk. The duties described in sub-paragraph (n) were the responsibility of the entire management team who, at different times, comprised Mr Naskovski, Mr Virk, Mr Lethbridge and Ms Myron.
Ms Emmitt, who was engaged or employed in different roles with Hisense from April 2019 to late 2021, gave evidence that was relevant to Mr Naskovski's underpayment and classification claim. She described Mr Naskovski's role as being generally as described in the position description for "QA Coach" (to which I refer shortly) but that it did "not detail the entirety of the scope of Fil's role".
By way of example, Ms Emmitt described how when she commenced in the role of Inbound Customer Service Consultant, Mr Naskovski had been assigned by Hisense as her trainer and supervisor and provided herself and other employees within the same intake group with thorough training on Hisense's processes, procedures and role requirements. She described Mr Naskovski as the group's "go to", despite the fact that Mr Virk was their direct manager. It was Ms Emmitt's evidence that she interacted with Mr Naskovski on a daily basis throughout her employment and he remained her "first point of contact" in relation to any queries or concerns.
Ms Emmitt described in her evidence having observed that Mr Naskovski would often stay back until the rest of the team had left, regardless of the time. For example, if someone else was on the phone at 7.30 pm, Mr Naskovski would usually still be there. Ms Emmitt also gave evidence about Mr Naskovski's role in staff performance management. She described that Mr Naskovski had, during her employment, monitored and managed team members' performance and work quality, including by listening to and making client calls.
In cross-examination, Ms Emmitt was asked to identify any duties that Mr Virk had performed and not the applicant. Ms Emmitt recalled that she had gone to Mr Virk if she had any grievances about colleagues. However, she volunteered that anything in regard to training, she would speak to Mr Naskovski. Ms Emmitt described Mr Virk as being only there as a "support person".
Ms Emmitt was asked whether there were any duties that she had observed Mr Naskovski doing that she understood were the ultimate responsibility of Mr Virk. This produced the following exchange:[95]

[148]

Ms Emmitt: From what I saw, the roles were pretty much, sort of, blended. I didn't really see a lot of difference, I just knew the hierarchy within the company. A lot of the things that Gary did, Fil did - sorry, Mr Virk and Mr Naskovski. For instance, like walking people out, that sort of thing, I saw Gary do.

Mr Lettau: What's walking people out?

Ms Emmitt: Like, if someone got fired and they had to be walked out of the building.

Mr Lettau: Right?

Ms Emmitt: Like, Fil would assist with that. So a lot of the things that I saw Gary do I saw Fil do the same thing. But I just understood the hierarchy of the company.

Mr Lettau: You understood that Virk had the ultimately responsibility for...?

Ms Emmitt: Correct.

Mr Lettau: ...what was happening?

Ms Emmitt: Yes.

Mr Lettau: Yes. The applicant says in his affidavit that Mr Virk would tend to finish earlier than others. He says 4.30 pm?

Ms Emmitt: Yes.

Mr Lettau: And he says that - is it - you agree with that?

Ms Emmitt: Definitely.

Mr Lettau: Yes. And the applicant will continue working...?

Ms Emmitt: Yes.

Mr Lettau: ...after Mr Virk left. Did you understand that after Mr Virk left the applicant was now the more senior person in the workplace?

Ms Emmitt: Yes.

Mr Lettau: Did you observe after Mr Virk left that the applicant would neglect his duties as a team coach?

Ms Emmitt: No. Never.

Mr Lettau: He continued doing his duties as a team coach...?

Ms Emmitt: Yes.

Mr Lettau: ...even after...?

Ms Emmitt: He would stop whatever he was doing to help people. That's the only time I ever saw him stop doing, like, quality and that sort of thing. But...

Mr Lettau: Well?

Ms Emmitt: Fil never neglected any part of his role when Gary left.

Mr Lettau: Sure. So when - he wouldn't neglect his team coach duties, but when he - an extra hand might have been needed, but work Mr Virk would have previously done he would step in and fill that gap?

Ms Emmitt: Yes. Well, I mean, Fil was pretty much the go-to person for anything. So would pretty much go to Fil before Gary anyway. So that was pretty much normal - the entire day.

[149]

In defending its decision to classify Mr Naskovski as a Level 3 employee, Hisense relied principally on a position description document for the role of "QA Coach"[96] which Ms Sun described in her first affidavit made on 2 June 2023 as the current position description for a Customer Service Team Coach. Ms Sun acknowledged that she had been unable to locate Mr Naskovski's actual position description.
Mr Naskovski denied in cross-examination that the document produced by Ms Sun contained an accurate description of the duties of a Team Coach. Mr Naskovski insisted that the document had been created "after the fact" and was not his job description. Instead, he maintained his reliance on a document titled "Job Description" for the "Job Title: Team Coach (Customer Service)" which had been prepared for Christopher Lethbridge on 17 June 2020[97] and which Mr Naskovski described as being "very similar (but not identical) to my own position description for the role of Customer Service Team Coach". Mr Naskovski was only lightly challenged on this evidence.
During cross-examination, Ms Sun was asked to comment on the position description prepared for Mr Lethbridge. Ms Sun accepted that she had no reason to disagree that it was generally consistent with the role performed by Mr Naskovski in the same position as Team Coach. She agreed (by reference to the document) that in the role of Team Coach, Mr Naskovski was responsible for training new staff, was involved in ongoing improvement plans for staff, was involved in drafting and devising general training material, had responsibility for ensuring that staff reached KPIs and that he had the ability to manage staff behaviours and learning.
Ms Sun also agreed that Mr Naskovski possessed industry-specific knowledge relating to Hisense products and dealing with customer service and warranty claims and that he gave advice to the organisation and to customers in relation to those products and repair requests. She also agreed that Mr Naskovski required limited guidance or direction in the performance of his role and that he assisted at times with developing new criteria and procedures for performing work and assessing warranty claims. She further agreed that Mr Naskovski provided guidance to others in the application and planning of skills.
Ms Sun joined issue with the suggestion that Mr Naskovski supervised other employees, preferring to describe his role as one of "support" instead. She also resisted the suggestion that Mr Naskovski led a team or that he provided leadership "in a team leader way to his team" to the call centre staff. Ms Sun agreed that Mr Naskovski had responsibility for monitoring the performance of and aiding the development of on and off-site call centre operators but insisted that this did not involve the exercise of a leadership role, preferring instead to characterise it as part of a quality control function.
In the same context, Ms Sun was taken to an Annual Performance Appraisal Form for Mr Naskovski for the year 2018[98] on which the supervisor had recorded an entry under "The most important achievements of the whole year" as "Creating a new training manual in a very short time which was accurate. Fil delegated some of the training to other staff which shows good leadership skills". Ms Sun denied this to be an example of leadership stating that "[Mr Naskovski] was not a leader - team leader - at that time. At least with the title".

[150]

In support of his claim to have worked time beyond 7 pm on occasions, Mr Naskovski relied upon a set of rosters for the period January 2015 to December 2019 that were annexed to the first Naskovski affidavit[99] and which were said by Mr Naskovski to record the shifts worked by various Hisense employees in shifts of varying length and start and end time. The final column recorded a shift that began at 11.30 am and ended at 7.30 pm.
Hisense instead relied on a set of timesheets that were annexed to the first Sun affidavit[100] and which recorded against various dates across a fortnight, Mr Naskovski's start and finish time and the number of hours worked for the period beginning 10 September 2015 and ending 12 May 2017 (this being the final day of Mr Naskovski's casual employment). Mr Naskovski accepted in cross-examination that his signature appeared on these timesheets, and he had signed them in the knowledge that his pay would be dependent on the hours recorded in the document. Mr Naskovski did however suggest in his evidence that he regarded the timesheets as a type of "generic" document to be paid regardless of the hours in fact worked including because at the time that he worked with Ms Myron, he was led to believe that there was no afternoon shift. In other words, putting in "9 to 5 was the same as putting in 11.30 to 7.30".[101]
In re-examination it was clarified that in fact, Mr Naskovski did not dispute the accuracy of the timesheets insofar as across the period beginning 18 May 2016 up to and including 12 May 2017, they recorded him performing shifts that finished at 7.30 pm. His disagreement ultimately was confined to the period February 2016 up to and including April 2016 in respect of which the timesheets recorded that Mr Naskovski worked shifts that ended at 7 pm or 5 pm. Mr Naskovski offered, as an explanation for this discrepancy, that in February 2016 what had previously been three afternoon shifts (11 to 7, 11.30 to 7.30 and 12 to 8) was consolidated into the single afternoon shift of 11.30 to 7.30 pm.
As far as the permanent period was concerned, it was Mr Naskovski's evidence that when he transitioned from a casual to a permanent employee on 15 May 2017, he continued to work the 11.30 am to 7.30 pm shift until sometime in January 2019, at which point Hisense made a decision to change the shift to 11 am to 7 pm instead. Mr Naskovski acknowledged that after this time his shifts generally went from 11 am to 7 pm.
During cross-examination, Ms Sun properly accepted that because she was not employed by Hisense at the time, she was not in a position to contradict Mr Naskovski's evidence about the shift changes that occurred in February 2016 and again in January 2019.
Ms Sun also accepted that Hisense had produced only three timesheets that related to the permanent period (beginning 30 April 2020 and ending on 27 May 2020).[102] She explained that these were produced only in circumstances where a full-time employee was claiming overtime. She only faintly resisted the suggestion that the timesheets were produced at a time coinciding with COVID-19 lockdown when staff were requested to generically record a start time and finish time of 10 am to 6 pm because of the flexibility of working from home.
In closing argument, Hisense submitted that the Court should prefer the timesheet evidence over the rosters relied upon by Mr Naskovski. Hisense submitted that the timesheets were a contemporaneous record which had in most cases been signed by the applicant. On the other hand, the rosters had certain anomalies that had not properly been explained by the applicant.

[154]

A.3 Level 2

A.3.1 Characteristics

a) This level caters for employees who have had sufficient experience or training to enable them to carry out their assigned duties under general direction.

b) Employees at this level are responsible for and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.

c) The work of employees at this level may be subject to final checking and, as required, progress checking.

d) Employees at this level may be required to check the work or provide guidance to other employees at a lower level or provide assistance to less experienced employees at the same level or any combination of one or more of these requirements.

...

A.3.3 Typical duties and skills - Call centre customer contact officer grade 1

a) A call centre customer contact officer grade 1 is employed to:

use known routines and procedures;

have some accountability for quality of outcomes;

receive calls;

use common call centre technology;

enter and retrieve data;

work in a team;

manage their own work under guidance;

provide at least one specialised service such as sales and advice for products and services, complaints or fault enquiries and data collection surveys.

b) A call centre customer contact officer must be classified at this level if they hold a Certificate II in Telecommunications (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.3.3(a).

A.4 Level 3

A.4.1 Characteristics

a) Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work.

b) Employees at this level require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.

c) Employees at this level may be required to give assistance or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.

...

A.4.3 Typical duties and skills - Call centre customer contact officer grade 2

a) A call centre customer contact officer grade 2 is employed to:

perform a broader range of skilled operations than grade 1;

exercise some discretion and judgment in the selection of equipment, services or contingency measures;

work within known time constraints;

provide multiple specialised services to customers (including complex sales, service advice for a range of products or services and difficult complaint and fault inquiries);

deploy service staff using multiple technologies;

exercise a limited amount of leadership over less experienced employees.

b) An employee must be classified at this level if they hold a Certificate III (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.4.3(a).

* NOTE: These typical duties and skills may be either at Level 3 or Level 4 depending on the characteristics of that particular level.

A.5 Call centre principal customer contact specialist

Employees at this level are employed to:

a) perform a broad range of skilled applications; and

b) provide leadership as a coach, mentor or senior staff member, and provide guidance in the application and planning of skills; and

c) work with a high degree of autonomy with the authority to make decisions in relation to specific customer contact matters; and

d) take responsibility for the outcomes of customer contact and resolve complex situations.

A.6 Level 4

A.6.1 Characteristics

a) Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice or information to the organisation and clients in relation to specific areas of their responsibility.

b) Employees at this level require only limited guidance or direction and would normally report to more senior staff as required.

c) A principal feature, but not a requirement, of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordination of work flow, checking of progress, quality of work and resolving problems.

d) Employees at this level exercise initiative, discretion and judgment at times in performing their duties.

e) Employees at this level are able to train employees in Levels 1-3 by personal instruction and demonstration.

[156]

Mr Naskovski submitted in closing argument that if the Court was to accept his classification argument about the permanent period, then as a matter of logic, the Court should accept his argument about the casual period.
It is convenient therefore to set out the parties' respective positions on the permanent period before turning to their contentions on the casual period.
Mr Naskovski acknowledged that there was some overlap between the skills and duties described for Level 3 and Level 4 employees. He submitted however that the duties and skills set out in A.6.3(a)(iii), (iv) and (v) - present in Level 4 and absent from Level 3 - were the key differentiators between the two classifications and coalesced in there being a greater emphasis on leadership, discretion, authority and supervision in a team coordination sense which justified the elevation to Level 4.
Mr Naskovski submitted that the language used in relation to Level 3 was less emphatic when it came to the requirement to provide assistance or demonstrate leadership. For example, cl A.4.1(c) which provides that employees may be required to give assistance or guidance...to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.
Mr Naskovski pointed also to cl A.4.3(a)(ii) - exercise some discretion and judgment in the selection of equipment, services or contingency measures and cl A.4.3(a)(vi) - exercise a limited amount of leadership over less experienced employees - as making good this distinction.
Mr Naskovski submitted that the evidence, including performance appraisals and other documents referring to the work performed by Mr Naskovski, overwhelmingly supported the conclusion that during the permanent period Mr Naskovski's correct classification was as a Level 4 employee. He submitted that Hisense had produced no evidence to contradict this and to the extent that Ms Sun resisted a number of matters put to her about the quality and character of the work performed by Mr Naskovski, her resistance was neither sensible nor reasonable.
Hisense submitted that Mr Naskovski's correct classification was that of call centre principal customer contact specialist (referred to at A.5) which was a classification more closely aligned to Level 4 but with important differences that applied in the case of Mr Naskovski.
It was said firstly that a distinguishing factor that separated the A.5 level classification from the Level 4 was that the latter acknowledged that a person holding a relevant Certificate IV would rise to that higher classification. Hisense noted that Mr Naskovski did not hold a Certificate IV in Customer Contact. Hisense also relied on the fact that the Level 4 typical duties included the requirement that the employee provide leadership in a team leader role whereas the A.5 classification referred to provide leadership as a coach.
Hisense submitted that Mr Naskovski had failed to produce evidence sufficient to demonstrate that he was leading a team or that he was evaluating and developing criteria and procedures, a further set of duties and skills that was absent from A.5 but a requirement for Level 4. Hisense submitted that the evidence went only so far as to suggest that Mr Naskovski had helped in the creation of a manual, a task which Hisense's counsel described as "rewriting an existing manual according to existing criteria".
Mr Naskovski submitted in relation to the casual period that the duties described by him in his affidavit[103]aligned much better with the Level 3 classification rather than the Level 2 classification for which Hisense contended. Mr Naskovski submitted that he had not been questioned or challenged on any of this evidence.
Hisense submitted in relation to the casual period that the best guide to the duties in fact performed by Mr Naskovski was the position description for the job title of Warranty Specialist, this being a document that the applicant also relied upon given that it was annexed to his third affidavit.[104] Hisense submitted that the position description, including the KPIs which it identified, closely aligned with the call centre customer contact officer grade 1 classification. To illustrate the point, Hisense identified the following examples taken from the "typical duties and skills" for the classification.
First, the use of known routines and procedures (A3.3(a)(i)) - Hisense submitted that the position description set out very clear guidelines for what the officer employed in the role was to be doing. It was a case of simply following those instructions "by the book".
Second, the requirement to have some accountability for quality of outcomes (A3.3(a)(ii)) - Hisense submitted that this was reflected in the KPIs identified in the position description.
Third, there were no qualifications required which was consistent with what counsel described as the need for a "can-do attitude" rather than particular qualifications that were embodied in the position description.
Hisense submitted that Mr Naskovski, including through his evidence, had failed to establish that the work he performed as Warranty Specialist qualified him for the additional duties identified in the next classification up (being Warranty Claim Speciality/Customer Service Inbound Operator). Hisense submitted that the distinguishing factors necessary for elevation to the next classification included the following:
First, the requirement to exercise discretion and judgment in the selection of equipment, services or contingency measures (A.4.3(a)(ii)) - Hisense submitted that there was no evidence before the Court that while employed as a casual employee, Mr Naskovski was providing specialised services.
Second, the requirement to exercise leadership over less experience employees (A.4.3(a)(iv)) - Hisense submitted that in the casual period, there was no evidence that Mr Naskovski was fulfilling this function.
Hisense acknowledged that there was some overlap between the two levels for which the parties contended and submitted that reconciliation should occur by means of application of the "major and substantial" employment principle, articulated in cases such as Australian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512. Hisense submitted that this principle, which emphasised the main function of the employee, could be applied in resolution also of the classification dispute concerning the permanent period. The principle, when applied in that context, yielded the result that Mr Naskovski's main function or "major and substantial" employment, was that of coach, rather than team leader.

[159]

I am satisfied that on the evidence before the Court, including the largely unchallenged testimony of Mr Naskovski as to the duties and tasks that he performed during the permanent period, as well as the responsibilities that he routinely assumed or was given, that his proper classification during this time was as a Level 4 employee. Mr Naskovski accordingly was entitled during the permanent period to be paid consistently with this classification.
I accept the submission of Mr Naskovski that the key differences between Level 3 and Level 4 (including the hybrid, call centre principal customer contact specialist role) are the level of leadership, discretion, authority and supervision in a team coordination sense, which receives greater emphasis in the higher classification. This conclusion follows from a comparison between the respective characteristics and typical duties and skills of the two classifications. The evidence before the Court, including that of Ms Emmitt, who was clear in her attribution to Mr Naskovski of leadership responsibilities and saw little to distinguish between the role of Mr Naskovski and that performed by Team Leader, Mr Virk, that Mr Naskovski was routinely and for significant periods of the working day, operating in a manner that involved these differentiating qualities and responsibilities.
As not uncommonly occurs, it appears that Mr Naskovski's role evolved so that he performed duties and tasks and assumed responsibilities that outpaced his position description.
To the extent that Ms Sun challenged aspects of Mr Naskovski's account of his role, I find that she was not well placed to give evidence about the work in fact performed by Mr Naskovski. This was because, as emerged during cross-examination, she worked in a different physical area to where the call centre was located and because the start and initial months of her employment with Hisense had coincided with the beginning of the COVID-19 lockdown, she had spent most of the time working from home and had seldom attended the office. Where her evidence was contrary to that of Mr Naskovski, I preferred Mr Naskovski's account. Ms Sun's challenges were in any case largely semantic. She took issue with the attribution to Mr Naskovski of leadership responsibilities and tasks because he was not occupying the role of "Team Leader".

[161]

In addition to my finding as to classifications, I find also that to the extent that Mr Naskovski performed work during the casual period and the permanent period after 7 pm, he was entitled to be paid an additional penalty rate corresponding with his classification as a Level 2 and Level 4 employee, respectively.
While the Court is unable to be precise as to the number of occasions on which such hours were performed, this occurred within the parameters described below that reflect the evidence adduced during the hearing and my finding that during the permanent period, the record of hours contained in the rosters produced by Mr Naskovski should be preferred over the very limited number of timesheets relied upon by Hisense in respect of this period. As noted earlier, Ms Sun was not in a position to contradict Mr Naskovski's evidence that he had continued (in his transition from casual to permanent employee) to perform the 11.30 am to 7.30 pm shift until sometime in January 2019 or that shift changes had occurred as described by Mr Naskovski in February 2016 and in January 2019. The information recorded in the rosters is generally consistent with this shift pattern.
It therefore follows, as a result of the findings recorded above, that Hisense has contravened the following provisions of the FW Act and is liable to rectify the underpayments that arise as a consequence:
- In breach of clause 28.4(c) of the Award and s 45(1) of the FW Act, Hisense did not pay Mr Naskovski penalty rates of 115% for all afternoon shifts, as a Level 2 employee, performed for the period from 21 September 2015 to 14 May 2017.
- In breach of clause 28.4(c) of the Award and s 45(1) of the FW Act, Hisense did not pay to Mr Naskovski penalty rates of 115% for afternoon shifts finishing after 7.00 pm and at or before midnight as a Level 4 employee for the period from 15 May 2017 to December 2018.
- In breach of clause 29.3(ii) of the Award and subsection 45(1) of the FW Act, Hisense did not pay Mr Naskovski annual leave loading of 17.5% during a period of paid annual leave as a Level 4 employee, on days he would have been performing afternoon shift work, for the period from on or around 15 May 2017 to 31 December 2018.
- In breach of clause 28.6 of the Award and s 45(1) of the FW Act, Hisense did not pay Mr Naskovski special rates of double time for all work done on a Saturday, Sunday and public holidays as a Level 4 employee for the period from on or around 15 May 2017 to 31 December 2018.
The parties are encouraged to perform and agree on the calculations required to identity the extent of the underpayment as well as to confer about and agree, if possible, a form of orders dealing with the further programming of this matter to hear evidence and submissions on questions of relief and penalty, arising from the findings made in this judgment.
In performing such calculations, the parties are to rely on the following information:
- For the period February to April 2016, the rosters.
- For the period May 2016 to 12 May 2017, the timesheets.
- For the period 15 May 2017 to January 2019, the rosters.

At a glance

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Judgment (257 paragraphs)

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Legislation Cited (3)

Cases Cited (10)