Rozdolovschii v Autokat Recycling Pty Ltd [2025] FedCFamC2G 1962

1. On about 4 February 2021 the applicant, Mr Rozdolovschii, commenced employment with the first respondent (ARPL) as a process plant supervisor. Mr Rozdolovschii worked in that position until ARPL terminated his employment by letter dated 28 October 2022 (Termination Letter). In that letter ARPL stated it was terminating Mr Rozdolovschii's employment "by way of redundancy on the basis of insolvency".
2. In this proceeding Mr Rozdolovschii claims that ARPL did not dismiss Mr Rozdolovschii from his employment because of any financial difficulties ARPL says it was experiencing; Mr Rozdolovschii claims that ARPL took adverse action against Mr Rozdolovschii (which the statement of claim identifies as the Dismissal Adverse Action) by terminating his employment because, on a number of occasions, he had exercised workplace rights by making complaints and inquiries in relation to his employment within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act); because Mr Rozdolovschii was temporarily absent from work due to an injury; and because Mr Rozdolovschii had protected attributes, these being a back injury, aggravation of a back injury, and a jaw injury. More particularly, relying on s 361(1) of the FW Act, Mr Rozdolovschii claims ARPL failed to discharge the onus of proving that it did not terminate Mr Rozdolovschii's employment because he had exercised workplace rights, or because he was temporarily absent from work, or because he possessed the alleged protected attributes.
3. For these reasons, Mr Rozdolovschii claims that ARPL contravened s 340(1), s 351(1), and s 352 of the FW Act. Mr Rozdolovschii also claims ARPL took adverse action against him on four other occasions in the course of his employment, and that the second respondent, Mr Giesh, the sole director of ARPL, was knowingly involved in each of ARPL's alleged contraventions. The respondents deny they engaged in any contravening conduct.

1. I propose to deal with Mr Rozdolovschii's claims as follows.

(a) First, I will address the submissions the parties made about the general credibility of Mr Rozdolovschii and Mr Giesh.

(b) Second, I will set out the evidence that deals with ARPL's decision to employ Mr Rozdolovschii, the work he performed, and the nature of ARPL's business and operations.

(c) Third, I will set out the evidence of each alleged workplace complaint and inquiry on which Mr Rozdolovschii relies, his temporary absence from work, and his alleged protected attributes up to 5 September 2022, and of each adverse action the statement of claim alleges ARPL took up to that date, and make findings. I have chosen 5 September 2022 as an appropriate end point in this part of my reasons because that is the date on which Mr Denis Vazhenin commenced his employment with ARPL; and as will appear later, it is ARPL's employment of Mr Vazhenin that appears to have initiated the events that led to ARPL's terminating Mr Rozdolovschii's employment on 28 October 2022.

(d) Fourth, I will set out in narrative form the evidence of the events that occurred from 5 September 2022 to 28 October 2022, identifying as I go along what the statement of claim alleges are further workplace complaints and inquiries, and make further findings.

(e) Fifth, I will consider Mr Rozdolovschii's case against ARPL and Mr Giesh based on the alleged contraventions of s 340(1), s 351(1), and s 352 of the FW Act.

1. The respondents submit that Mr Rozdolovschii was a far from satisfactory or believable witness. They submit Mr Rozdolovschii was evasive, he failed to provide proper answers to even the most basic of questions, and routinely challenged the cross-examiner on his right to ask certain questions. Mr Rozdolovschii, on the other hand, points to a large number of matters which, he submits, should support a finding that Mr Giesh's evidence about the reasons for which ARPL terminated Mr Rozdolovschii's employment should not be accepted.[1]
2. It is rarely useful or even appropriate for a judge first to determine whether a witness is generally credible, and use that determination as a premise for rejecting or accepting particular items of evidence the witness gives. As Peter Smith J said in EPI Environmental Technologies Inc v Symphony Plastic Technologies:[2]

(i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness's evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.

1. The approach Justice MacKenna J described in the following passage is instructive.[3]

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant's favour. The plaintiff has failed to discharge the burden of proof.

1. As will be apparent from these reasons for judgment, I have addressed each item of relevant evidence Mr Rozdolovschii and Mr Giesh have given, and in so doing I have made findings about whether I should accept that evidence. Having undertaken that task, however, I am in a position to say I am not satisfied Mr Rozdolovschii is a witness whose evidence I could accept in the absence of corroborative or consistent contemporaneous documents or supporting or consistent objective facts that are not or cannot reasonably be in dispute. And here there are four matters to note.
2. The first matter arises out of the statement of claim alleging that Mr Rozdolovschii made 24 workplace complaints and inquiries throughout his employment with ARPL. The number of occasions on which the statement of claim in fact alleges Mr Rozdolovschii exercised his workplace rights is greater than the 24 it identifies. A number of the workplace complaints and inquiries are each alleged to have been made multiple times (rolled-up alleged complaint and inquiry). That is the case with what the statement of claim identifies as the Fourth, Seventh, Ninth, Eleventh, Sixteenth, and Eighteenth workplace complaints and inquiries, as may be seen (amongst other complaints) in the following table:

Workplace complaint identified in the statement of claim

Frequency with which and period over which workplace complaints are alleged to have been made

From on or about June 2021 to October 2022 on approximately one occasion per month

From about August 2021 to August 2022 on at least one occasion per month

From January 2022 to October 2022 approximately two times per week

From on or about July 2022 to October 2022 approximately once per week

From on or about August 2022 to October 2022 on three separate occasions

Seventeenth workplace complaint and inquiry (1)

Seventeenth workplace complaint (2) (the statement of claim identifies two separate complaints as the "Seventeenth workplace complaint")

From August 2022 to October 2022, on approximately three occasions

1. The table omits the First, Second, Third, Fifth, Sixth, Seventh, Eighth, and Twenty-first workplace complaints and inquiries which Mr Rozdolovschii abandoned. If these alleged workplace complaints and inquiries are taken into account, the statement of claim alleges Mr Rozdolovschii made workplace complaints and inquiries on at least 188 occasions.[4]
2. In his affidavit, Mr Rozdolovschii purports to give evidence of each rolled-up alleged complaint and inquiry in substantially the same form as they are described in the statement of claim: [5]

Workplace complaint identified in the statement of claim

Frequency with which and period over which workplace complaints are deposed to have been made

"From around June 2021 to around October 2022, on at least a monthly basis . . . I complained about my labour duties and my excessive workload in words to the effect of..." [163]

"Furthermore, during the above period (between June 2021 and October 2022) on at least 3 separate occasions . . . I would complain to Sergei Giesh regarding my labour duties and excessive workload, in words to the effect of..." [164]

"From around July 2022 to August 2022 . . . I complained about my excessive workload, using words to the effect of..." [248]

"Therefore, from around August 2021 until around August 2022, at least once a month, I would complain to Sergei Giesh . . . about my overtime hours and unpaid sick leave, with words to the effect of..." [167]

"from around mid-2021 to October 2022, on at least 10 occasions . . . I would complain to Sergei Giesh . . . with words to the effect of..." [161]

"From around July 2022 to October 2022, and on at least 5 occasions, I would approach Sergei Giesh . . . and the following conversation would occur with words to the effect of..." [258]

"from about January 2022 to October 2022, at least once a week . . . I would confront Sergei in front of my coworkers, using words to the effect of..." [208]

"Consequently, in or around August 2022, on at least one occasion . . . I made complaints and enquiries . . . in words to the effect of..." [290]

"From in or around August 2022 until around October 2022, on at least 3 separate occasions . . . I requested [Mr Giesh] to outsource a HR Person . . . using words to the effect of..." [324]

1. To give evidence, as Mr Rozdolovschii has purported to do in relation to the rolled-up alleged complaints and inquiries, that the same conversation occurred over a number of occasions, as opposed to giving evidence in relation to each occasion the conversation occurred, may suggest that Mr Rozdolovschii's evidence does not represent a genuine recalling of any memory of the gist of the conversation, but instead represents a reconstruction of what Mr Rozdolovschii may believe was said. This doubt is strengthened by Mr Rozdolovschii on a number of occasions deposing to what he or Mr Giesh "would have" said, as opposed to what Mr Rozdolovschii remembers was said.
2. Second, as I will show in more detail later in these reasons, on three occasions Mr Rozdolovschii sent emails or messages to Mr Giesh in which he expressed a number of grievances. This occurred on 16 August 2022, 12 September 2022, and 19 October 2022. These emails and messages indicate that when Mr Rozdolovschii had grievances, he communicated them in writing to Mr Giesh; and they also indicate the matters about which Mr Rozdolovschii was aggrieved and considered appropriate to communicate in writing. These include the grievance he expressed in a message Mr Rozdolovschii sent on 12 September 2022 that an email Mr Giesh had sent to Mr Rozdolovschii had a "somewhat accusatory" tone. That Mr Rozdolovschii had expressed grievances in writing is a basis for doubting that he expressed orally to Mr Rozdolovschii on multiple times the grievances he does not allege he expressed in writing. For example, to communicate in writing a grievance about Mr Giesh's alleged rudeness or accusatory tone, but not communicate in writing a grievance that on no less than three occasions Mr Giesh threatened to fire Mr Rozdolovschii if he were to make a workers compensation claim, is a substantial reason for doubting Mr Rozdolovschii orally expressed any such grievance, and that Mr Giesh, therefore, had made any such threat.
3. Third, there are some clear examples where the matters about which Mr Rozdolovschii deposes are inconsistent with his communications to Mr Giesh. One example concerns the evidence Mr Rozdolovschii gives in his affidavit that in "around late September to early October 2022, on at least 5 occasions, both face to face (on three occasions) and via Threema messages (on two occasions)" he "would request" Mr Giesh "gather a meeting with the labourers as follows".[6] In an email he sent to Mr Giesh on 19 October 2022, however, Mr Rozdolovschii claimed that, after the meeting of 27 September 2022, he continued to fulfil most of his duties, but communication with Mr Giesh "was carried out exclusively through" Mr Vazhenin.
4. Fourth, in paragraph 375 of his affidavit, Mr Rozdolovschii said that after ARPL terminated his employment he had been diagnosed with anxiety and depression, and to improve his mental condition Dr Guirguis prescribed Mr Rozdolovschii with "Amoxicillin 500 mg, Levothyroxine 50 mcg, Mometasone nasal spray 50 mcg". Mr Rozdolovschii annexed what he said is "a true copy of my Medication Prescriptions". There are two things to note about this evidence. First, the prescription for Levonthyroxine 50 mcg was not issued to Mr Rozdolovschii, but to his daughter; and the prescription for Mometasone was issued to his stepson, Mr Syrskii. Mr Rozdolovschii gave the following evidence about this:[7]

THE INTERPRETER: 240. Yes. I can see my daughter's surname on this script - on this prescription. When I was copying them from my phone, I attached this script - my daughter's script - and also another one - my stepson's - Anton's script - by mistake. They don't have anything to do with this case.

MR GUY: So in spite of the fact that you said that you were prescribed this levothyroxine, you've never been prescribed it.

THE INTERPRETER: You say he - he wrote?

MR GUY: Yes.

THE INTERPRETER: He provided evidence. Yes. It's absolutely evident that this is the medication prescribed for my daughter, and it's clear that, of course, I - I never took it.

1. The second thing to note about the medications to which Mr Rozdolovschii referred is that none of them is a medication for the treatment of depression or anxiety. At the hearing I took judicial notice of the purposes of these medications as follows:[8]

HIS HONOUR: All right. Now, I will say this to both of you, subject to any objection, I'm going to take judicial notice of what each of these drugs are for and I'm telling you now [so] you can make submissions about it as to whether I should take judicial notice. I'm going to take judicial notice that amoxicillin is a penicillin antibiotic. It is used to treat bacterial infections such as chest infections including pneumonia and dental abscesses. I'm going to take judicial notice again, subject to objection, that levothyroxine is a medicine used to treat an underactive thyroid gland and I'm going to take judicial notice that mometasone is a medication which decreases swelling (inflammation), itching and redness.

So I'm going to take judicial notice of that and to the extent it is going to be relevant subject to any submissions about whether I should or should not.

1. I asked Mr Rozdolovschii whether he wished to provide an explanation for deposing he had been prescribed the particular medications he says he had been prescribed for depression and anxiety when in fact those medications are not prescribed for those conditions:

HIS HONOUR: Yes, subject to any objection. So Mr Rozdolovschii, you say that you were prescribed Amoxicillin 500mg by your doctor? Do you know what [that] was for?

THE INTERPRETER: I cannot tell you now. Yes, I think that Mr Solicitor has checked it and I believe that, yes, it really was an antibiotic. Yes, I don't have any reason not to believe him if he's saying so.

HIS HONOUR: Well, it's not a question of believing him. You say in your affidavit that this was prescribed by your doctor for anxiety and depression, and amoxicillin does not appear to be - you can sit down, there's no need to get up. And my question is, do you have an any explanation why you would state in an affidavit - you intend to state in an affidavit that you've been diagnosed with anxiety and depression, and you've been prescribed drugs which are not for that condition?

THE INTERPRETER: Dr Michael is my GP, my family doctor, not only as a part of my compensation case, but also as my general doctor. And he has prescribed those medications for me, including this antibiotic. I remember at that time, I had a problem with my ear. Infection or something. And he prescribed the depression medication as well at the time. Later, the depression medications were prescribed by Doctor Sazhin. I have all those medications on my bedside table. I can provide the scripts of the medication I'm taking. Yes, I can show you the scripts for the medication I am being prescribed.

HIS HONOUR: I don't need to see that. I just wanted to know what your explanation was. Have you given the explanation you want to give?

THE INTERPRETER: Sorry?

HIS HONOUR: Have you given the explanation you want to give why you say in your affidavit why you identify those medications as being relevant to your diagnosis of anxiety and depression, have you given all the explanation you want to give about that?

THE WITNESS: Yes.

THE INTERPRETER: Yes.

1. I am not satisfied Mr Rozdolovschii offered any explanation for deposing, as he did, that he had been prescribed one medication that is not prescribed for depression or anxiety, and that he had been prescribed two other medications purportedly for depression and anxiety which not only are not medications for those conditions, but were medications that were not prescribed for Mr Rozdolovschii. That Mr Rozdolovschii, without any explanation, has given such patently incorrect evidence by itself would have led me to pause before accepting evidence from him that is unsupported by some objective or uncontested fact.

1. Mr Giesh denies most, if not all, of the conversations Mr Rozdolovschii deposes he had with Mr Giesh. To the extent I have not accepted Mr Rozdolovschii's evidence, therefore, Mr Giesh's denials are credible. There are, however, difficulties in my accepting affirmative evidence Mr Giesh gave. The difficulties arise from the limited evidence Mr Giesh gives in his affidavit about the circumstances in which he decided to terminate Mr Rozdolovschii's employment, his inability under cross-examination to provide details it is reasonable to expect he would be in a position to provide if the reasons for which he deposed in his affidavit he decided to terminate Mr Rozdolovschii's employment were true. Further, Mr Giesh presented as a poor witness under cross-examination. Notable was Mr Giesh's not accepting that the reference in the transcript to a conversation on 19 August 2022 caught on CCTV footage to his stating "It's true, facts are facts" was a response to a complaint Mr Rozdolovschii made about Mr Giesh having barked at him.
2. Notwithstanding these aspects affecting Mr Giesh's credibility, there are two objective facts that are consistent with the reasons Mr Giesh gave in the Termination Letter for ARPL having decided to terminate Mr Rozdolovschii's employment. The first is that, on 5 September 2022 ARPL employed Mr Vazhenin to perform substantially the same functions it had employed Mr Rozdolovschii to perform; and that Mr Rozdolovschii complained that ARPL had employed Mr Vazhenin to perform the roles Mr Rozdolovschii performed. That leaves open the proper characterisation of Mr Rozdolovschii's position as at 28 October 2022 as being redundant to that of Mr Vazhenin's position. The second objective fact consists of the opinions expressed in the letter dated 3 October 2022 from a chartered accountant, Ms Lillya Bayazitova about ARPL's financial condition; [9] ARPL would be insolvent without the continued support of its shareholders. These objective facts, however, do not by themselves explain the reasons for which ARPL terminated Mr Rozdolovschii's employment, because ARPL could just as easily have terminated Vazhenin's employment for the same reasons the Termination Letter stated ARPL terminated Mr Rozdolovschii's employment.

Late January 2021 - Mr Giesh interviews Mr Rozdolovschii

1. On about 21 January 2021 Mr Rozdolovschii telephoned Mr Giesh, in response to an advertisement on Facebook ARPL posted for the position of a "foreman/plant processing supervisor". Mr Giesh suggested Mr Rozdolovschii attend ARPL's office for an interview. [10]
2. ARPL was then in the business of collecting, buying, recycling, and scrapping catalytic converters. A catalytic converter is a motor vehicle part that converts toxic exhaust pollutants to less toxic pollutants. There is a market for the purchase of used catalytic converters because they contain three of the six elements - platinum, palladium, and rhodium - that comprise the platinum group metals (PGM) which can be extracted from the catalytic converters and sold.[11] In broad terms, then, ARPL's business consisted of the purchase of used catalytic converters, and the extraction from them and sale of PGMs. ARPL conducted its activities at unit 5/179-183 Woodpark Road, Smithfield (Workshop).[12] Mr Giesh was the sole director of ARPL.[13]
3. In late January 2021 Mr Rozdolovschii met with Mr Giesh. According to Mr Rozdolovschii, in a conversation that was conducted in Russian,[14] Mr Giesh informed him that Mr Giesh needed a foreman/plant supervisor, but ARPL needed to gather a team. Mr Giesh further said that Mr Rozdolovschii would need to perform labourer duties in the workshop and cut the metal with a grinder; that he would be working with Mr Sava, a workshop labourer; that Mr Rozdolovschii will be the supervisor with two to three people under him; and as soon as ARPL gathers other employees, Mr Rozdolovschii will not be a labourer, but will become a supervisor.
4. Mr Giesh asked Mr Rozdolovschii other questions. These included whether Mr Rozdolovschii could lift 20 kg; whether he could drive to the store and shop for the workshop now and then; whether he could sometimes work late; and whether Mr Rozdolovschii can change a motor. In response to the last-mentioned question, Mr Rozdolovschii said he could not because he is not an electrician; he needed to warn Mr Giesh that he is afraid of electricity, he did not have a background in engineering, and he received no specific training. Mr Giesh informed Mr Rozdolovschii that there would be a six-month probation period. Mr Rozdolovschii said he thought "it normally takes 3 months". Mr Giesh responded that "Moscow wishes so".[15]
5. Mr Giesh says he interviewed Mr Rozdolovschii on about 21 January 2021. Mr Rozdolovschii said that while he was living in Moldova he was trained as a mechanical technician; and he worked for some time in Australia as a mechanical labourer on construction sites with gyprock. Mr Rozdolovschii said he would consider accepting $80,000 remuneration, and he would be happy to start on the following day. Mr Giesh denies he informed Mr Rozdolovschii that he would be working with Mr Sava; or that he told Mr Rozdolovschii that the job involved sometimes working late; or that he asked Mr Rozdolovschii if he could work with electricity, or whether Mr Rozdolovschii could drive to the store to collect materials.[16]

1. About one week after Mr Giesh interviewed him, Mr Rozdolovschii participated in a video conference with Mr Pavel Romanov and Mr Giesh during which he was interviewed by Mr Romanov. Mr Rozdolovschii says that Mr Romanov was the "Moscow Office Director/Logistics Manager". According to Mr Rozdolovschii, Mr Romanov said that Mr Rozdolovschii should not worry; he will be able to handle it; everything will be fine; and when he fully switches to the supervisor's position Mr Rozdolovschii's main job will be collecting and filling information in Excel. Mr Romanov asked Mr Rozdolovschii whether he could stay longer at work if needed. Mr Romanov said they would support Mr Rozdolovschii; there was a lot Mr Rozdolovschii did not know; he should never say he does not know; he should first check on YouTube and should try to solve issues for himself; but if he cannot handle something, Mr Rozdolovschii should call "Sergei or Valeri Lasko", and they will advise Mr Rozdolovschii.[17]
2. In his affidavit Mr Giesh says that at no time did Mr Romanov tell Mr Rozdolovschii to refer to YouTube if he had any questions about the job. Mr Giesh says he provided Mr Rozdolovschii with training manuals.[18]

4 February 2021 - Mr Rozdolovschii commences employment

1. On about 2 February 2021 Mr Giesh provided to Mr Rozdolovschii a letter dated 1 February 2021 titled "Employment Agreement" by which Mr Rozdolovschii was offered the position of "Processing Plant Supervisor" with ARPL.[19] Clause 1.1 provided that the position of Processing Plant Supervisor would involve the duties and responsibilities set out in the schedule to the Employment Contract, which were as follows:
   • - Setup and adjusting of process of receiving material from customers (sellers)
   • - Organization of processing the received material and preparing it for shipment (finished products) for further processing (to buyers)
   • - Compliance with the relevant company regulations during processing operations, as well as control over their compliance by subordinates
   • - Keeping records of accepted material and finished products
   • - Control of the shipment of finished products to transport companies in accordance with the company's regulations
   • - Preparation of production reports
   • - Inventory and ordering of spare parts for processing equipment
   • - Inventory and ordering of consumables for processing activities
   • - Organization of routine and scheduled maintenance of processing equipment
   • - Development and implementation of measures to improve the processing flow
   • - Compliance with WHS at the processing site
   • - Search and preliminary shortlisting of candidates processing plant.
   • - ensure the safe storage of goods and values at the processing sites of the company
   • - processing of incoming raw materials, work on processing equipment
   • - Working with subordinates, planning vacations, maintaining a healthy working team spirit
2. Clause 7.1 of the Mr Rozdolovschii's employment contract provided that ARPL would pay Mr Rozdolovschii a salary of $80,000 AUD, and clause 9.1 provided that, in addition to his salary, ARPL would pay superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). Clause 12.2 provided that either party could terminate the Employment Contract at any time by giving notice in writing of 6 weeks or, in the case of ARPL, paying Mr Rozdolovschii in lieu of notice.
3. On about 3 February 2021 Mr Rozdolovschii returned the hard copy of the document to Mr Giesh at the ARPL Workshop and "a while later" Mr Giesh printed an employment contract which Mr Rozdolovschii thought was in the same terms as the letter, and signed it without reading it.[20] Mr Rozdolovschii commenced employment with ARPL on 4 February 2021.

Work Mr Rozdolovschii performed and the persons with whom he worked

1. Throughout his employment with ARPL Mr Rozdolovschii performed labourer duties. These included the following:[21]

(a) Manually cutting with a grinder catalytic converters Mr Adrian Pilch delivered on his ute. For the first month Mr Rozdolovschii manually cut the converters; from April 2021 Mr Rozdolovschii cut with "alligator scissors" together with Mr Ivan Syrskii who was hired at that time; and from around early 2022, a second alligator had been acquired. Mr Rozdolovschii rarely performed cutting tasks after Mr Perezva joined the team.

(b) Crushing the catalytic bricks in the crusher to obtain mineral sand containing platinum, palladium, and rhodium; filling up bags initially up to 1,250 kg, and then up to 1,500 kg bags; and preparing the bags for shipment to another country, predominantly Germany or Japan.

(c) Removing debris and scrap metal from the factory floor and the workshop; cleaning and maintaining the office, kitchen and toilets; and vacuum cleaning the floor, walls, and ceiling every week.

(d) Up to August 2022, when Mr Giesh so requested, drive to the nearby Bunnings store to buy different things for the workshop, such as big bags, rubber seals, filters, electric motors, toilet paper, coffee and tea.

(e) From around May to July 2021, entering the data from work journals into an excel spreadsheet.

(f) From around May 2021 onwards conducting an X-ray fluorescence analysis of the catalytic converters; conducting supervisory duties, such as entering client data into the computer, overseeing the workshop operations and labourers.

1. Throughout his employment Mr Rozdolovschii reported to Mr Giesh; and he worked with the following employees:[22]

(a) Mr Adrian Pilch, who was employed as an accounts/sales manager from before Mr Rozdolovschii commenced employment until around August 2022;

(b) Mr Ivan Syrskii, a processing plant operator, who was employed from around March 2021 to June 2022;

(c) Mr David Klymuk, a processing plant operator who commenced employment from around July 2022;

(d) Mr Denis Vazhenin (Vajenin), a processing plant operator who commenced employment in around August 2022;

(e) Mr Bakhtiar Kasimov, who Mr Rozdolovschii says was employed as an Alligator Shearing Machine operator/ABN Worker from around July 2022 onwards; and

(f) a person whose first name is "Nassim", who was employed in the position of buyer, together with other casual employees Nassim engaged.

(g) Mr Kirill Perezva, a processing plant operator/ABN worker who was employed from May 2021 until December 2021.

1. Mr Rozdolovschii annexes to his affidavit screenshots he had taken of ARPL's website.[23] The website states that ARPL is a "Catalytic converter collector, processor, and buyer"; that it buys "catalytic converters in any condition damaged, de canned, loose catalysts and in powder"; and that it has a "fully equipped recycling centre workshop offering a complete processing cycle with accurate sampling and analysis of . . . PGM content". The website further states:

We are based in Sydney and have been successfully operating internationally since 2008.

Our team of professionals from diverse backgrounds speak many different languages offering friendly and inclusive support.

We provide easy and clear communication for you and welcome the opportunity to build a reliable and transparent partnership anywhere in Australia.

1. The website provided the following brief description of the work carried out at the Workshop:[24]

Located in Smithfield . . . we are easily accessible from major roads and have free on-site parking for trucks.

You'll find us on Woodpark Road, in the industrial neighbourhood, and not far from Smithfield Bunnings.

Our friendly team will help you to unload your material and process it with one of the following methods

X-ray fluorescence analysis Code prices for catalytic converters

We sort and de-can your catalytic converters for accurate sampling.

• We use X-ray fluorescence (XRF) machine to measure how much platinum, palladium, and rhodium are contained in the spent converter.
• The analysis is transparent and enables us to provide accurate pricing, so you get top dollar
• After sampling you receive immediate payment supported with required documents

1. Among the persons with whom Mr Rozdolovschii says he worked is a group of persons Mr Rozdolovschii identifies as the "Moscow Team". This consisted of :[25]

(a) Mr Pavel Romanov, who Mr Rozdolovschii says occupied the position of "Moscow Office Director/Logistics Manager";

(b) Mr Artyom Shtern, who Mr Rozdolovschii says occupied the position of "Chairman of the Board";

(c) Elena Pticina, who Mr Rozdolovschii says was the "Bookkeeper", and

(d) Mr Valeri Lasko, who Mr Rozdolovschii says occupied the position of "Head Engineer".

1. In his affidavit Mr Giesh denies ARPL had a "Moscow Team". Mr Giesh says "some people in Moscow were consulting [ARPL] in relation to record management and bookkeeping however this was the extent of their involvement in [ARPL]".[26]

1. Many of the alleged complaints Mr Rozdolovschii says he made to Mr Giesh relate to processes that occurred at the Workshop; and it would be convenient to set out at this point evidence that has been given about those processes by two former employees of ARPL, these being Mr Davyd Klymuk,[27] who commenced employment with ARPL on 7 July 2022, and Mr Denis Vazhenin, who commenced employment with ARPL on 5 September 2022.[28] Mr Klymuk gave the following evidence:

At Autokat, we received deliveries of catalytic converters approximately once per week. They were delivered by trucks and are stored in bulk bags which sit on pallets, with one bulk bag per pallet. The goods were unloaded using a forklift. I have never witnessed the goods being unloaded in any other way.

I cannot confirm the weight range of the catalytic converters. I never paid attention to this. They are not very heavy.

There was a machine in the factory known as the crusher, which crushes the ceramic parts of the catalytic converters into a powder. As I recall, the weight limit for this machine was 18 kg. If more than 18 kg of ceramic was placed inside the machine, it would not work properly. This was common knowledge amongst my colleagues.

There was a vacuum cleaner in the factory was used to suck out the powder from the crusher. As the powder got sucked out, it went into a bucket which is lined with a plastic bag. That plastic bag was then removed and placed on a tray which is located approximately two metres away from the crusher. I never witnessed anyone fill the bag with more than one batch of ceramic powder at a time (approximately 15 kg to 18 kg). Such a practice was not allowed and that was common knowledge amongst my colleagues.

Once the mixing process is complete, another vacuum cleaner, essentially the same as the first, is used to suck the powder out of the mixer. Again, the powder gets sucked into a plastic bag which sits in a bucket.

The normal practice is to ensure that no more than 20 kg is sucked out from the mixer, ideally closer to 15 kg, so that the bag is not too heavy. After a few attempts, you develop an instinct for how long to hold the vacuum in order to obtain the required weight.

In my opinion, it is not difficult to ensure that no more than 20 kg is sucked out of the mixer. If ever the bag is heavier than normal, which happens from time to time, the normal practice is to ask a colleague to help you lift the bag. In my experience, there is always someone available to help you if required.

I was trained by Sergey to ensure that the bags of powder were always within the range of 15kg to 20kg and to ask for help if they are any heavier. Sergey also explained some written policies to me about this in Russian, which I signed.

1. Mr Klymuk was cross-examined, but this part of his evidence was not challenged. In any event, I find the evidence to be credible, and I accept it.

Fourth workplace complaint (weekend and overtime work; non-supervisory work)

June/July 2021 - August 2021: complaints regarding working on weekends and after work hours

1. According to Mr Rozdolovschii, throughout his employment "on a regular and systematic basis", Mr Giesh requested Mr Rozdolovschii to work overtime or during the weekends by saying words to the effect of: "Always take the journals and the notebook with you home. Complete at home whatever you didn't manage to do (at work)".[29] Additionally, from around February 2021 to September 2022, on at least 10 occasions, Mr Giesh "would" approach Mr Rozdolovschii in the Workshop, and request Mr Rozdolovschii to perform additional hours of work in words to the following effect:[30]

Sergei Giesh: "Why is it so dirty in the workshop?"

I said : "I did not manage to clean it. I was cutting."

Sergei Giesh: "Come early and leave late, you'll manage more."

1. Mr Giesh denies he had conversations to this effect with Mr Rozdolovschii;[31] and he says that Mr Rozdolovschii did not verbally or in writing complain to Mr Giesh about working late or on weekends.[32] Mr Giesh further says that Mr Rozdolovschii would sometimes request to work after hours; and Mr Giesh exhibits to his affidavits two sets of text or email exchanges. One occurred on 11 February 2021, where Mr Giesh informed Mr Rozdolovschii that Adrina Pitch would be cutting with Mr Rozdolovschii "tomorrow" in response to which Mr Rozdolovschii said: "Don't need . . . . If it is needed, I will be working on Saturday for free".[33] Mr Rozdolovschii was asked questions about the text messages in cross-examination; but he was not prepared to accept that the text messages (the original of which are in Russian) were authentic; and he said he had no recollection of suggesting that he may work for free on a Saturday.[34] The second exchange occurred by email on 9 September 2022 in which Mr Rozdolovschii said: "please let me work until 6:00 pm today . . . and let guys work overtime", in response to which Mr Giesh said: "Overtime for today is confirmed (for Friday night only)."[35]
2. Mr Rozdolovschii says that during the first six months of his employment he "would not object to working overtime" because he was "in probation and did not want to upset" Mr Giesh, fearing that if he were to reject Mr Giesh's directions Mr Rozdolovschii would lose his job. Mr Rozdolovschii says, however, the following:[36]

However, from around June/July 2021 to August 2021, on at least one occasion, whenever Sergei Giesh would request me to work on the weekends over the telephone or face to face, I made the following complaints to Sergei regarding my additional hours of work, in words to the effect of:

Sergei Giesh: "You can take work home and work on the weekends."

I said: "Sergei when you demand me to come to work on weekends, I don't have time for my family. You ruin my weekend plans." Or "Sergei, I have a family, I don't want to work overtime, you're not paying for it."

Sergei Giesh: "That's the business. You're the workshop supervisor."

Thereafter, Sergei Giesh continued to direct me to work on weekends and/or after hours and I continued to make complaints to Sergei about this, as described further in my Affidavit.

1. This evidence must be read with a document Mr Rozdolovschii signed on 12 July 2021 titled "Agreement of temporary reducing hours of work due to lockdown in Sydney" which Mr Giesh also signed, but on behalf of ARPL. The agreement provided that "[d]ue to Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order, movements restrictions and lockdown in Sydney, working hours on the period of lockdown from July 12, 2021 till the officially announced by government end of restrictions to be reduced on up to 20 hours a week".[37] Mr Giesh says that from July 2021 until mid-October 2021 staff were very rarely required to attend the office.[38] Mr Giesh has also exhibited to his affidavit three payslips ARPL issued to Mr Rozdolovschii, one for each of the months of July, August, and October 2022, which record the payment of overtime to Mr Rozdolovschii.[39] It reflects poorly on Mr Rozdolovschii's credibility that he deposed that around June/July 2021 to August 2021 Mr Giesh asked him to work overtime without reference to a document he signed which contradicts that evidence.
2. I do not accept Mr Rozdolovschii's evidence of his conversations with Mr Giesh.

(a) First, Mr Rozdolovschii deposes that he said substantially words to the same effect whenever around February 2021 to September 2022, on at least 10 occasions, Mr Giesh "would" approach Mr Rozdolovschii to work after hours. I am not satisfied that Mr Rozdolovschii's evidence in this respect is based on any actual recollection.

(b) Second, it is implausible that Mr Rozdolovschii would have had a conversation to the effect deposed on each occasion from around February 2021 to September 2022 when Mr Giesh is said to have requested Mr Rozdolovschii perform work after hours.

(c) Third, in the email Mr Rozdolovschii sent to Mr Giesh on 19 October 2022 (the 19 October 2022 email), Mr Rozdolovschii complained that he "also worked 2-3 hours overtime without pay every day with your connivance". That is a broader allegation than the conversations to which Mr Rozdolovschii deposes, and, moreover, Mr Rozdolovschii does not refer to Mr Giesh having requested or directed him to do so. Further, Mr Rozdolovschii did not in the 19 October 2022 email refer to his previously having complained to Mr Giesh about being required to work overtime, something it is reasonable to expect Mr Rozdolovschii to have referred to had he in fact complained to Mr Giesh about being required to work overtime.

1. There is another aspect that is relevant to assessing this part of Mr Rozdolovschii's evidence, as well as the other evidence he gives about complaints and inquiries he says he made in conversations he deposes he had with Mr Giesh. In addition to the 19 October 2022 email, there is an email Mr Rozdolovschii sent to Mr Giesh on 16 August 2022 (16 August 2022 email),[40] another email he sent to Mr Giesh on 17 August 2022 (17 August 2022 email), and a Britix24 message he sent to Mr Giesh on 12 September 2022 (12 September 2022 message).[41] As will appear in more detail later in these reasons, in the 16 August 2022 email Mr Rozdolovschii complained about what he claimed was an accusation Mr Giesh made in a conversation that occurred on 15 August 2022; and as will also appear in more detail later, in the 12 September 2022 message, Mr Rozdolovschii made a number of detailed complaints, including his being "surprised" that the meeting to which the message referred "had a somewhat accusatory tone". The 16 August and 19 October emails, and the 12 September 2022 message indicate that Mr Rozdolovschii raised, and had the disposition to raise, complaints in writing; and they also indicate the types of things about which he complained. These included the tone or manner in which he perceived Mr Giesh and others spoke to him. It is reasonable to infer, therefore, that Mr Rozdolovschii was not reluctant to complain in writing about matters about which he was aggrieved. Thus, to the extent Mr Rozdolovschii says he complained about matters of the sort about which he complained in the 16 August and 22 October 2020 emails, and the 12 September 2022 message, it is reasonable to expect that he would have made those complaints in writing; and to the extent he did not is a basis for not accepting Mr Rozdolovschii's evidence that he made complaints orally to Mr Giesh.

June 2021 - October 2022 complaints about excessive workload, and performing labourer instead of supervisory roles

1. Mr Rozdolovschii says that from "around June 2021 to around October 2022, on at least a monthly basis", Mr Giesh "would" complain to Mr Rozdolovschii about the workshop operations. Mr Giesh would do so via Threema messages and in person. On those occasions the following occurred:[42]

Sergei Giesh: "Why aren't you in the workshop, cutting?"

I would say:

1. "Why do I work as a labourer? I can't do the whole thing and all tasks. This is not a supervisory role as we agreed during my job interview. This is a labourer job, and I am paid less than I should be paid. I will not be working in the workshop in that case."

ii. "How long is this going to continue. How long will I be cutting?"

1. "Show me where it's mentioned that I have to cut, being a workshop supervisor?"

Sergei Giesh:

"It's in your contract. According to the contract when you have free time, you have to do a labourer job. Read the contract, it's there." (Sergei made the above comment from June 2021 to June 2022)

Although my contract stated that my role and duties could be changed at the discretion of my Employer (in cluse 1.3) [sic], I was never informed that my role as a Processing Plant Supervisor had changed, nor did the contract state that in my free time I should do the role of a Labourer, as Sergie stated.

"When we hire new people, you won't even need to be a labourer, you'll be in the office the whole day." (Sergei made this comment in around June 2022 after Ivan had quit)

1. Further, Mr Rozdolovschii says that during the period June 2021 to October 2022, "on at least 3 separate occasions, in the office, workshop or the car park", Mr Rozdolovschii "would complain" to Mr Giesh as follows:[43]

I said: "When can I do the supervisory job then if I am performing labourer and cleaner tasks all the time?"

Sergei Giesh: "You can take some journals home, during the weekend. Come early and leave late.

I said: "When should I rest?"

Sergei Giesh: "During the weekend, work and rest."

1. Mr Giesh denies Mr Rozdolovschii complained about his workload or his performing labourer duties; and he denies he had conversations with Mr Rozdolovschii to the effect to which Mr Rozdolovschii deposes.[44]
2. I do not accept Mr Rozdolovschii's evidence of his conversations with Mr Giesh.

(a) First, I am not satisfied Mr Rozdolovschii's evidence is based on any actual recollection; he deposes to what he "would" have said or about what he "would" have complained.

(b) Second, it is implausible that Mr Rozdolovschii would have had substantially the same conversation with Mr Giesh "around June 2021 to around October 2022, on at least a monthly basis", or during the period June 2021 to October 2022, "on at least 3 separate occasions, in the office, workshop or the car park".

(c) Third, the 19 October 2022 email does not refer to Mr Rozdolovschii's having complained to Mr Giesh about Mr Giesh having directed Mr Rozdolovschii to work overtime without pay; and Mr Rozdolovschii had not otherwise complained in writing to Mr Giesh about such matter.

(d) Fourth, Mr Rozdolovschii has not produced the "Threema" messages he exchanged with Mr Giesh; and Mr Rozdolovschii does not in his affidavit say he was unable to produce those messages.

1. As for the last-mentioned matter, Mr Rozdolovschii gave the following evidence about the Threema messaging service:[45]

... But when I was employed, [Mr] Giesh told me to install this application on my phone, because this Threema is a corporate application that is managing internal communication within the whole corporation. It is similar to WhatsApp, but Giesh said that I have to use Threema.

1. Earlier in his cross-examination Mr Rozdolovschii gave the following evidence:[46]

We had a messenger called Threema that was used in our company. At the time of - of my employment, my director told me to download that program, that software, that messenger, and to use it. Then about a year later, in December 2021, when I purchased a new phone, I couldn't transfer the data, this corporate data, from that messenger to the new one. All the data was lost. And - and Mr Giesh installed a new - the new corporate messenger on my new phone. Yes. In this way, the information that was stored on this Threema messenger - all the corporate information during the year 2021, it was lost. And I cannot remember everything that happened. The information that was on the new messenger, it's available, but the one which was on the first, the old messenger, it was lost.

1. Even if this evidence were accepted, it does not account for data that was generated by use of the Threema platform after December 2021. In those circumstances, to the extent Mr Rozdolovschii deposes he made complaints through Threema, at least after December 2021, his not producing a copy of the message is a reason for doubting his evidence that he made a complaint to Mr Giesh by use of Threema.

July 2022-August 2022 - Complaints about not being able to work in the workshop while undertaking supervisory duties

1. Mr Rozdolovschii says that from around July 2022 to August 2022, when Mr Kasimov and Mr Vazhenin commenced their employment with ARPL, Mr Rozdolovschii supervised them and taught them how to perform their work. In those circumstances, Mr Giesh "would tell me off" over Threema messages and face to face, for not being in the Workshop, in response to which Mr Rozdolovschii says he complained about his excessive workload, using words to the following effect:[47]

Sergei Giesh: "Why are the works going so slow?"

I would say: "Because Bakhtiar and the new guys are just learning."

Sergei Giesh: "Why aren't you working in the workshop?"

I would say: "I have a lot of supervisory things to do, how can I work in the workshop? I am working in the workshop in fits and starts between performing other duties."

Sergey Giesh: "Where's Denis?"

I said: "He works according to your plan."

Sergei Giesh: "We'll talk tomorrow."

1. Mr Giesh says Mr Rozdolovschii did not complain to him about excessive workload from July 2022 to August 2022; and he denies participating in a conversation to the effect Mr Rozdolovschii deposes.[48] Mr Giesh further say he believes that the conversation to which Mr Rozdolovschii purports to depose is a series of communications via Threema that occurred on 13 September 2022, which were as follows:[49]

13/09/2022 - 6:15 pm

Thank you, I understand. Approve 7-18 for Thursday for Bakhtyar and myself, please.

13/09/2022 - 6:18 pm

What for?

13/09/2022 - 6:19 pm

Denis is not working; he has his own plans. There will be just Bakhtyar working on the floor on Thursday.

13/09/2022 - 6:19 pm

What do you mean by "has his own plans"? What does he do? Are you also not working on the floor if Bakhtyar is the only one working?

13/09/2022 - 6:20 pm

Material stand.

I am only on the floor when I can spare the time between analysis and other duties.

13/09/2022 - 6:21 pm

Let's talk on Thursday.

13/09/2022 - 6:27 pm

OK

1. I am satisfied that the conversation to which Mr Rozdolovschii intended to refer is in fact the exchange of messages to which Mr Giesh refers. In any event, I am not satisfied that the conversation Mr Rozdolovschii says he had is a "complaint or inquiry" within the meaning of s 341(1)(c)(ii) of the FW Act.

1. I am not satisfied Mr Rozdolovschii made the Fourth workplace complaint and inquiry.

Seventh workplace complaint (not being paid overtime)

1. According to Mr Rozdolovschii, from around February 2021 to around May 2021 Mr Giesh "would not pay for any extra hours" Mr Rozdolovschii worked. From around May 2021 onwards, for Saturdays and Sundays, Mr Giesh "would" split the hours worked by two, and "would" count the remuneration accordingly.[50] "Therefore, from around August 2021 until around August 2022, at least once a month", Mr Rozdolovschii "would complain" to Mr Giesh at the office, near the coffee machine, smoking area about his overtime hours, and unpaid sick leave "with words to the effect of":[51]

I said:

1. "We regularly work extra hours. We need to be paid for the extra hours."
2. "Why do you split the hours to two."
3. Why don't you pay for the days when I have sick leave. I have given you at least 2 medical documents and was not paid for both days."

and Mr Giesh "would reply to my above complaint, with words to the effect of:"[52]

Sergei Giesh said:

1. "You are being paid for the extra hours. It's in your contract. Upon commencing you agreed to stay overtime, and overtime is not paid."
2. "According to your contract, you have to stay at times after work and you have a yearly salary, so it's included."
3. "I know how the GPs are done. In Australia any GP would give you such a document. I know the GP will write whatever you ask." (Sergei Giesh made this comment in or around September 2021 regarding my sick leave)

1. Mr Giesh denies Mr Rozdolovschii was not paid for overtime he worked; and he denies he had conversations with Mr Rozdolovschii to the effect Mr Rozdolovschii deposes.[53]
2. I do not accept Mr Rozdolovschii had conversations with Mr Giesh to the effect he deposes. First, I am not satisfied Mr Rozdolovschii has given evidence of the conversation on the basis of any recollection. Mr Rozdolovschii deposes to complaints he "would" have made, and to words Mr Giesh "would" have said. Second, it is implausible that from around August 2021 to around August 2022, "at least once a month" Mr Rozdolovschii had a conversation with Mr Giesh to the same effect. Third, although the 19 October 2022 email refers to Mr Rozdolovschii having "worked 2-3 hours overtime without pay every day with your connivance", Mr Rozdolovschii does not claim he had complained about this to Mr Giesh before 19 October 2022. Fourth, Mr Rozdolovschii did not communicate in writing the complaints Mr Rozdolovschii deposes he made orally, something it is reasonable to expect he would have done, given the fact that he had communicated complaints in writing in the 16 August and 19 October 2022 emails and in the 12 September 2022 message; and given the frequency with which Mr Rozdolovschii says he made oral complaints.
3. I am therefore not satisfied that Mr Rozdolovschii made the Seventh Workplace complaint and inquiry.

Ninth workplace complaint (lifting of heavy objects)

(a) On about 14 May 2021, at the end of his work, Mr Giesh directed Mr Rozdolovschii that on his way home he should drive to the store and buy a safe. Mr Rozdolovschii bought a 30-kg safe. When manually lifting the safe to place it in the trunk of his car, Mr Rozdolovschii immediately felt pain in his back; and the pain intensified later during the day and during the night.[54]

(b) On the following day Mr Rozdolovschii informed Mr Giesh that he bought the safe and injured his back. Mr Giesh did not say any words responsive to that statement, but only directed Mr Rozdolovschii to screw the safe into the ground.[55]

(c) Mr Rozdolovschii's back hurt intensely for another 7 days.[56]

(d) On about 21 May 2021 Mr Rozdolovschii told Mr Giesh that his back still hurt. Mr Giesh said that Mr Vasili Sava had the same issue; and Mr Rozdolovschii should buy a leather support belt.[57]

(e) Mr Rozdolovschii bought a support belt, and from around early June 2021 he wore it on a regular basis, especially when he performed heavy lifting.[58]

(f) On at least three occasions from June 2021 onwards, on seeing Mr Rozdolovschii wearing his belt, Mr Giesh asked what was wrong, in response to which Mr Rozdolovschii said his back hurt. Mr Giesh would then shrug his shoulders and walk away.[59]

(a) Mr Giesh first became aware Mr Rozdolovschii had a back injury on 5 April 2022 when Mr Rozdolovschii texted Mr Giesh.[60] (I refer to that text message later.)

(b) In around May 2021 Mr Giesh made a passing comment to Mr Rozdolovschii that there were expensive analysers in the office, and that "[m]aybe it would be a good idea to buy a safe box for them". Mr Rozdolovschii did not respond; but a few days later Mr Rozdolovschii sent Mr Giesh images of safes from Officeworks; and Mr Giesh instructed them to buy one of the safes.[61] Mr Giesh denies he instructed Mr Rozdolovschii to buy a safe on his way home.

(c) Mr Giesh recalls seeing Mr Rozdolovschii wearing what looked like a sports belt on one or two occasions. Mr Giesh says he did not make any inquiry why Mr Rozdolovschii was wearing it; and Mr Rozdolovschii did not tell Mr Giesh that he was wearing it because of back pain. Mr Giesh otherwise denies having the conversations Mr Rozdolovschii says he had with Mr Giesh about his back pain.[62]

June 2021 to October 2022 - complaints regarding heavy lifting

1. Mr Rozdolovschii says that throughout his employment, and on a daily basis, he and the workshop labourers performed unloading tasks which consisted of pouring 20-40 kgs of sandbags into a crusher; unloading the material that had been crushed into the mixer; unloading the material from the mixer into the bucket of the industrial vacuum machine; and pouring the contents of the bucket into big white bulk bags which were hung on a forklift. The buckets normally weighed 35 kg to 75 kg, depending on how long the vacuum cleaner would have been operating. The "non-experienced employees" would not normally know when to stop pulling out the material from the mixer, which meant that the labourers and Mr Rozdolovschii would need to manually lift 30-75 kg bucket and pour it into the bags. Mr Rozdolovschii would pour around 10-12 buckets a day, as a result of which he experienced back pain. From around mid-2021 to October 2022, "on at least 10 occasions", Mr Rozdolovschii "would complain" to Mr Giesh by stating words to the effect of: "It is very heavy, I am lifting too much on my own and it's hurting my back". Mr Giesh responded: "It's the business, don't load that much".[63]
2. In his affidavit Mr Giesh says that employees of ARPL were required to read and sign manuals, one of which stipulated that employees were not to lift manually materials weighing over 20 kgs; he does not recall any conversation in which Mr Rozdolovschii complained about heavy lifting; the crusher could not hold more than 15 kgs; and the vacuum had a capacity of 15 kgs.[64]
3. Mr Rozdolovschii also says that from around March 2022 onwards, "the Moscow headquarters began requesting the bags to be up to 15 kilograms so as the motors would not burn out"; but, in his experience, Mr Rozdolovschii says that the bags were never weighed on a scale "and regularly weighed more than 15 kilograms as we would not normally weigh the bags".[65] Mr Giesh denies that "Moscow" was involved in instructing ARPL's business decisions; ARPL had two investors in Russia, but Mr Rozdolovschii did not speak or report to them.[66]

July 2022 - October 2022: further complaints about heavy lifting

1. Mr Rozdolovschii says that from around July 2022 to October 2022, "on at least 5 occasions", he "would approach" Mr Giesh at the workshop when he was alone and have a conversation to the following effect:[67]

I said: "75 kg bucket is too much to carry, we can't guess what's the weight of the bucket. The employees are instructed to stop when it's time, but they don't have experience. I will hurt my back if I continue this way. Sergei, we're lifting what should not be lifted manually. David hurt his back, Bakhtiar's knees hurt. Bakhtiar has been complaining about feeling pain and has asked me to make an appointment with a doctor."

Sergei Giesh: "Figure out something. Put the vacuum on the scale to see how much there is in the bucket. Put it on the scale before starting to fill it."

I said: "It's impossible to do that. The tube is not that long."

Sergei Giesh: "Show me in the workshop, on the spot."

I would then demonstrate to Sergei Giesh in the workshop that his suggestion would not work, and he would say words to the effect of: "Well, do something, you're wasting my time. I am paying too much attention to the workshop. I cannot do that."

1. Mr Giesh says he did not have a conversation with Mr Rozdolovschii in which Mr Rozdolovschii complained about heavy lifting; and he denies he had a conversation with Mr Rozdolovschii to the effect Mr Rozdolovschii deposes.[68]

1. I do not accept Mr Rozdolovschii's evidence of his conversations with Mr Giesh for reasons I have already not accepted his evidence in relation to the Fourth and Seventh workplace complaints and inquiries. First, I am not satisfied Mr Rozdolovschii has given evidence from his recollection; he deposes to a conversation he had "on at least 5 occasions", after he "would" have approached Mr Giesh. Second, it is implausible that Mr Rozdolovschii and Mr Giesh would have had substantially the same conversation on at least five occasions. Third, the 19 October 2022 email does not refer to Mr Rozdolovschii having complained to Mr Giesh about heavy lifting. Fourth, Mr Rozdolovschii did not communicate in writing the complaints Mr Rozdolovschii deposes he made orally, something it is reasonable to expect he would have done, given the fact that he had communicated complaints in writing in the 16 August and 19 October 2022 emails and in the 12 September 2022 message; and given the frequency with which Mr Rozdolovschii says he complained orally.

1. I am not satisfied Mr Rozdolovschii made the Ninth workplace complaint and inquiry.

Tenth workplace complaint (disrespectful attitude)

1. According to Mr Rozdolovschii, on one occasion, Mr Giesh sent a message through Threema requesting that Mr Rozdolovschii work during the Russian Christmas holidays. Mr Rozdolovschii refused, after which Mr Giesh telephoned Mr Rozdolovschii and had a conversation as follows:[69]

Sergei Giesh (yelling): "If I am telling you to do something, you should do it without question. Who are you to argue with me? I told you to do it. Moscow does it. You should do it too. Do what you're told to do!"

I said: "Don't talk to me like that. It's not my job. It's not our job, nor our responsibility. We save company money every day and I get this instead of acknowledgement and gratitude."

Sergei Giesh: "Because I am the director."

1. Mr Giesh says that Mr Rozdolovschii was on annual leave from 27 December 2021 to 7 January 2022 inclusive. Russian Orthodox Christmas is on 7 January. On 6 January 2022 Mr Giesh sent to Mr Rozdolovschii the following message:

Hi Yura!

Can you and Ivan come to work tomorrow by any chance? We need to mix and pack a lot, as we will be shipping.

1. Mr Rozdolovschii responded with the following email:

Morning, greetings! Happy Orthodox Christmas 7 January!

Tomorrow is Friday. Will the lot be shipped on Monday?

Working on the Orthodox Christmas is a sin) (smile).

1. Mr Giesh denies he had a conversation with Mr Rozdolovschii to the effect Mr Rozdolovschii deposes.[70]
2. Mr Rozdolovschii was cross-examined about this part of his evidence.

(a) Mr Rozdolovschii was first asked whether he had taken leave from 27 December 2021 to 7 January 2022. Mr Rozdolovschii did not answer the question but instead asked the cross-examiner whether the cross-examiner expected Mr Rozdolovschii to remember the days he took leave.[71]

(b) The cross-examiner then put to Mr Rozdolovschii a copy from ARPL's payroll system which records that Mr Rozdolovschii had taken annual leave from 27 December 2021 to 7 January 2022.[72] Mr Rozdolovschii, however, was not prepared to accept that he had taken leave for the period recorded by the copy that was put to him; he said: "I have never seen this document before and I do not remember the dates of my annual leave".[73]

(c) The cross-examiner then asked Mr Rozdolovschii what the dates of the Russian Christmas holidays are; Mr Rozdolovschii asked that he be referred to the relevant part of his affidavit.[74] The cross-examiner directed Mr Rozdolovschii to paragraph 201 of his affidavit and, after it was translated into Russian, he was asked whether he accepted that sometime in early January 2022 Mr Rozdolovschii was taking some leave for Russian Christmas holidays. Mr Rozdolovschii answered: "This is possible. As far as I remember, that could be like that".[75]

(d) The cross-examiner then put to Mr Rozdolovschii that it was his evidence that Mr Rozdolovschii at least recalled a telephone conversation with Mr Giesh. Mr Rozdolovschii responded as follows:[76]

The initial conversation in the writing was in Threema, but possibly it was followed up by a voice conversation, but this voice conversation was not necessarily on the phone. It could have been either on WhatsApp or on Telegram because when Giesh was on holiday, sometimes he wasn't able to access the telephone network, and this is why he asked to communicate with him via these applications.

1. I do not accept Mr Rozdolovschii's evidence that he had a conversation with Mr Giesh about working on Russian Christmas. The exchange of messages to which Mr Giesh referred in his affidavit tell against so finding; the exchange reveals Mr Giesh made an enquiry whether Mr Rozdolovschii would be willing to work on Russian Christmas, not a direction that he work on Russian Christmas, to which Mr Rozdolovschii responded that he was not available. The messages, therefore, are inconsistent with there being a conversation at all, let alone a conversation in which Mr Giesh, having made a polite an enquiry by message whether Mr Rozdolovschii was available to work, yelled at Mr Rozdolovschii demanding that he work on Russian Christmas day. Further, given that in the 16 August 2022 email Mr Rozdolovschii complained about the manner in which Mr Giesh had spoken to him on 15 August 2022, and in the 12 September 2022 message Mr Rozdolovschii having complained about the "somewhat accusatory tone" of the meeting of 5 September 2022, it is reasonable to expect that Mr Rozdolovschii would have complained to Mr Giesh in writing if in truth Mr Giesh had spoken to Mr Rozdolovschii in the manner in which he deposes he did.
2. I am therefore not satisfied Mr Rozdolovschii made the Tenth workplace complaint and inquiry.

5 April 2022 - back injury (First adverse action)

1. According to Mr Rozdolovschii, on 5 April 2022 he injured his back during loading. Mr Rozdolovschii approached Mr Giesh at the car park and said to Mr Giesh that he injured his back; and he was going to see a doctor. Mr Rozdolovschii says that Mr Giesh said: "If anything - it did not happen at work. If you put in a claim. I will fire you".[77] The statement of claim identifies Mr Giesh's statement as the First adverse action.[78] Mr Rozdolovschii further says that he did not confront Mr Giesh, but he worked "for several more hours, experiencing pain".[79] Mr Rozdolovschii also says that on 5 April 2022 he attended a doctor, and at around 14.22 he sent a text message to Mr Giesh via Threema, to which Mr Giesh responded as follows:[80]

I wrote: "I am going to see a doctor. I hope everything will be okay. Whatever GP says, we have some salve (ointment) at home that Anton uses. I wasn't planning on letting you down. In the workshop, Ivan cut whatever was left. He is about to upload the photo. Tomorrow I will grind and analyse everything."

Sergei Giesh: "Get well.

Isn't that for horse's [salve] by chance? [three laughing emojis]

Seriously, someone told me about some salve for horses [two laughing emojis]

1. In his affidavit Mr Giesh says that on 5 April 2022 Mr Rozdolovschii sent him an SMS message, being a copy of a screenshot of a message apparently written in Russian which is annexure IR6 to Mr Rozdolovschii's affidavit. Mr Giesh annexed an English translation to his affidavit, which is as follows:

Sorry Sema, I will not finish today. I pulled my back. I am off to see a doctor. I hope everything is ok and will listen to the doctor. I have the rub at home. Anton uses it all the time. I didn't plan on letting you down. Ivan already cut everything we've had in the workshop. Ivan is also uploading the photo. I will meal everything and analyse it tomorrow.

Get better soon. Is the rub for horses? It was not a joke. Someone was telling me about the magic rub for horses.

1. Mr Giesh says Mr Rozdolovschii returned the next day. Mr Giesh asked him how is back was, and how he was feeling generally. Mr Rozdolovschii said he felt fine, and had decided to come back to work.[81]
2. I do not accept Mr Rozdolovschii's evidence that Mr Giesh said words to the effect of "If anything - it did not happen at work. If you put in a claim. I will fire you".

(a) First, it is inherently improbable. Mr Giesh is alleged to have made that statement without there being any apparent reason why it would even have occurred to Mr Giesh that the injury was of such a nature as might lead Mr Rozdolovschii to claim workers compensation.

(b) Second, in the email sent to Mr Giesh Mr Rozdolovschii said he did not plan on letting Mr Giesh down. That is not a sentiment Mr Rozdolovschii would have conveyed if Mr Giesh in fact had threatened to fire Mr Rozdolovschii if he made a claim on workers compensation.

(c) Third, the email Mr Giesh sent to Mr Rozdolovschii hoping that he would get well is inconsistent with a person who had threatened to fire Mr Rozdolovschii if he made a workers compensation claim.

(d) Fourth, given the matters about which Mr Rozdolovschii complained in the 16 August and 19 October 2022 emails, and in the 12 September 2022 message, it is unlikely that Mr Rozdolovschii would not also have complained in writing about Mr Giesh threatening to fire him if Mr Rozdolovschii made a workers compensation claim. Mr Rozdolovschii's not having complained or otherwise referred to in writing that Mr Giesh threatened to fire Mr Rozdolovschii is a reason for not accepting Mr Rozdolovschii's evidence that Mr Giesh made any such threat.

1. Given I do not accept Mr Rozdolovschii evidence that Mr Giesh made any threat to fire Mr Rozdolovschii, I do not accept that ARPL took the First adverse action.

Eleventh workplace complaint - January 2022 - October 2022 - complaints about Mr Giesh's disrespectful attitude

1. Mr Rozdolovschii says that from around January 2022 to October 2022, "on a regular and systematic basis, and occasionally in the presence of" Mr Kasimov (the Alligator shearing machine operator), Mr Klymuk (the processing plant operator), and Mr Vazhenin (also a process plant operator), Mr Giesh "would yell" at Mr Rozdolovschii by saying words to the effect of "I am fed up with you"; "Do I have to hire a babysitter for you"; "C'mon damn"; "Ivan has always covered you. I can create unbearable conditions for you". By January 2022 Mr Rozdolovschii says he was more confident to stand up for himself, at least once a week, on the occasions Mr Giesh "demanded unrealistic tasks and/or manifested abusive and disrespectful language towards" Mr Rozdolovschii; and he "would confront" Mr Giesh in front of his coworkers, using words to the effect of:

I said:

1. Why are you so disrespectful?
2. If you don't like stop talking to me like that, I will hang up. Why are you talking to me like that?
3. Don't you dare speak to me like that.
4. The way you are talking to me is completely humiliating and unacceptable.
5. Stop publicly humiliating me in front of the other coworkers and stop accusing me of doing things that I have not done.
6. Why are you swearing at me?

1. Mr Rozdolovschii says that, in response to these statements, Mr Giesh "would respond" with words to the effect of: "Because I am the director", or "Everyone swears".[82]
2. Mr Giesh denies he used abusive language towards Mr Rozdolovschii and the conversations to which Mr Rozdolovschii deposes.[83]
3. Mr Klymik, in his affidavit, (among other things) says as follows:[84]

I never observed Iurii being bullied by anyone at Autokat and I certainly did not bully or mistreat Iurii.

Iurii and I were friends for most of my time at Autokat. We would talk about things outside of work and we had a good relationship.

At some point during our time working together (l cannot recall the exact date), I remember that Iurii shut down and stopped talking to me openly. I do not know why Iurii stopped talking to me.

1. Mr Vazhenin in his affidavit says that he never witnessed Mr Rozdolovschii being bullied or harassed by anyone including Mr Giesh.[85]
2. I do not accept Mr Rozdolovschii's evidence.

(a) First, I am not satisfied it is based on his recollection. Mr Rozdolovschii deposes that he "would" confront Mr Giesh, and Mr Giesh "would" respond in the manner Mr Rozdolovschii deposes he would; and Mr Rozdolovschii does not identify the time place or context in which the words to which he deposes were spoken.

(b) Second, as will appear later, on 16 August 2022 Mr Rozdolovschii sent an email to Mr Giesh (this being the 16 August 2022 email) in which he complained about a particular conversation to which he took issue, where Mr Rozdolovschii complained that Mr Giesh had accused him of doing something he denied doing. If, as Mr Rozdolovschii claims, Mr Giesh yelled with words to the effect of "I am fed up with you"; "Do I have to hire a babysitter for you"; "C'mon damn"; and "Ivan has always covered you. I can create unbearable conditions for you", and Mr Giesh had in fact complained about such yelling, Mr Rozdolovschii would have complained in writing, just as he did by the 16 August 2022 email.

(c) Third, the transcript of the CCTV footage of the meeting in the Workshop garage on 19 August 2022 (to which I refer later), records Mr Rozdolovschii having complained to Mr Giesh about the way Mr Giesh spoke to him. Mr Rozdolovschii said: "I get barked over by you out of nowhere. I am trying to explain things to you, and you lose your temper with me without good reason". The CCTV footage shows that Mr Rozdolovschii conveyed this complaint civilly, and Mr Giesh received the complaint civilly. The words the CCTV transcript records Mr Rozdolovschii used to convey his complaints are at variance with the words Mr Rozdolovschii says he "would" have used when he "confronted" Mr Giesh. Further, Mr Rozdolovschii's deposing that Mr Giesh "would respond" with words to the effect of: "Because I am the director", or "Everyone swears" is at variance with the words the transcript of the 19 August 2022 meeting at the garage records Mr Giesh used when Mr Rozdolovschii complained about being "barked over" by Mr Giesh. Mr Giesh responded with: "It's true, facts are facts". The transcript does not record Mr Giesh stating, "because I am the director", or "everyone swears".

1. I am therefore not satisfied Mr Rozdolovschii made the Eleventh workplace complaint and inquiry.

Twelfth and thirteenth workplace complaints - injury to jaw

1. According to Mr Rozdolovschii, on or around 11 July 2022, at around 11.00 am, and in the presence of Mr Klymuk and Mr Kasimov, while Mr Rozdolovschii was cutting some metal using the alligator scissors, a piece of the converter bounced back and hit his jaw, causing Mr Rozdolovschii sharp, intense pain. Mr Klymuk, in his affidavit, says that on 11 July 2022 he was present when Mr Rozdolovschii was giving him a demonstration on the allegator shears. As Mr Rozdolovschii was cutting a catalytic converter, suddenly there was a loud "pop". No part of the alligator shears or catalytic converter hit Mr Rozdolovschii in the face; and he was not injured. Mr Rozdolovschii did not complain about being hurt or injured.
2. Mr Rozdolovschii says he went to the upstairs office, holding a handkerchief on his jaw, stained with blood. Mr Giesh and Mr Shtern were sitting in the office. The following conversation occurred:[86]

I said: "A metal piece that flew out from under the alligator's scissors at great speed hit my jaw. Let's see how it goes."

Sergei Giesh: "You have to be more careful."

1. The statement of claim identifies this as the Twelfth workplace complaint.
2. Mr Giesh denies this conversation occurred.[87] In his affidavit, Mr Shtern says he visited Australia for tourism purposes from 14 June 2022 to 15 July 2022, and also came to Australia to visit the university at which his son was planning to study. Mr Shtern decided to visit Mr Giesh at the Workshop on 12 July 2022, and Mr Giesh took a photograph of a group of people, which included Mr Shtern and Mr Rozdolovschii.[88]
3. It is common ground that at 8.37 am on 12 July 2022 Mr Rozdolovschii sent the following email to Mr Giesh:[89]

Yesterday, 07/11/2022, [American date format] at about 11 o'clock in the afternoon, I notified my director that during working hours in the production process I was hit in the jaw by a metal piece that flew out from under the alligator's scissors at great speed.

The pain continued throughout the shift, but I worked.

During the night, the pain intensified and now reflects on the head; from a sharp tilting/turnover of the head, it is possible that some kind of nerve was pinched.

I need to see a doctor about a work injury.

1. The statement of claim identifies this as the Thirteenth workplace complaint.
2. I am satisfied on the basis of the email Mr Rozdolovschii sent to Mr Giesh at 8.37 am on 12 July 2022 that Mr Rozdolovschii reported to Mr Giesh that he had suffered an injury to his jaw, and that he informed Mr Giesh that he intended to see a doctor about it. I do not accept that these two statements Mr Rozdolovschii made constitute a complaint or inquiry. They do not manifest any "discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved";[90] nor do they manifest the seeking of information about or concerning something.[91]
3. For these reasons, I am not satisfied what the statement of claim identifies as the twelfth and Thirteenth workplace rights constitute the exercise of workplace rights.

1. According to Mr Rozdolovschii, at around 10.37 am on 12 July 2022, Mr Giesh telephoned Mr Rozdolovschii and the following conversation occurred:[92]

Sergei Giesh: "Do not tell him it happened at work. If you put in a workers' comp claim, I will fire you. You understand that it did not happen at work, right?"

I said: "I am leaving to attend a doctor."

1. The statement of claim identifies the statement Mr Giesh made as the Second adverse action.[93]
2. According to Mr Rozdolovschii, at around 12.00 pm on 12 July 2022 he telephoned Mr Giesh and said that the doctor did not have a window that day; and that his appointment was on the following day. Mr Rozdolovschii said that Mr Giesh told him to "come back to work today".[94] Mr Rozdolovschii drove to work, and performed his work duties until the end of his shift at 6.00 pm. Later in the evening, the pain on Mr Rozdolovschii's jaw subsided; and he did not see his doctor the following day because he had a lot of work to do.[95]
3. Mr Giesh gives a different account. He says that after he received Mr Rozdolovschii's email of 11 July 2022 he was shocked, thinking that the jaw injury "just happened" because on 11 July 2022 "everything appeared fine and no incident was reported" to Mr Giesh. At around 8.53 am Mr Giesh telephoned Mr Rozdolovschii to check in on him, asking whether Mr Rozdolovschii's jaw was ok. Mr Rozdolovschii said he was ok, but he just wanted to see the doctor in case to check his jaw. Mr Giesh arrived at work at around 9.40 am, very soon after which Mr Rozdolovschii arrived at work. Mr Giesh asked Mr Rozdolovschii how the doctor's appointment was. Mr Rozdolovschii said he decided not to go to the doctor; he felt fine. Mr Giesh otherwise denies he had a conversation to the effect Mr Rozdolovschii deposes he had with Mr Giesh.[96]
4. I do not accept Mr Rozdolovschii's evidence that Mr Giesh said words to the effect: "Do not tell him it happened at work. If you put in a workers' comp claim, I will fire you. You understand that it did not happen at work, right?"

(a) First, it is inherently improbable. Mr Giesh is alleged to have made that statement without there being any apparent reason why it would have occurred to him that the injury was of such a nature as might lead Mr Rozdolovschii to claim workers compensation.

(b) Second, given the matters about which Mr Rozdolovschii complained in the 16 August and 19 October 2022 emails, and in the 12 September 2022 message, it is unlikely that Mr Rozdolovschii would not also have complained in writing about Mr Giesh threatening to fire him if Mr Rozdolovschii made a workers compensation claim, had Mr Giesh made any such threat. Mr Rozdolovschii's not having complained or otherwise referred in writing that Mr Giesh threatened to fire Mr Rozdolovschii is a basis for not accepting Mr Rozdolovschii's evidence that Giesh made any such threat.

1. I am therefore not satisfied ARPL took the Second adverse action.

1. Mr Rozdolovschii deposes that in July 2022 he had the following conversation with Mr Giesh:[97]

I said: "Adrian gets a car allowance, why don't I get it?"

Sergei Giesh: "Did you fill in your declaration for reimbursement/tax return? I recommended you to do so."

I said: "I don't think it's correct. A lot of other documents are needed for that. I need a logbook which I did not fill in and the tax ..."

Sergei Giesh (dismissively and irritated): "Fuck, Iura, who said that to you, Anton? Check that with the accountant.

1. Mr Giesh denies a conversation to this effect occurred.[98]
2. There are two matters that are relevant to determining whether I should accept Mr Rozdolovschii's evidence. The first is that Mr Rozdolovschii deposes that "a year prior" he made complaints to Mr Giesh regarding the fuel and car allowance and reimbursement, and he ceased making those complaints in February 2022.[99] Earlier in his affidavit Mr Rozdolovschii deposes that in June 2021 he made the very same enquiry to Mr Giesh, in response to which Mr Giesh said: "Add that into declaration/tax return and you'll be reimbursed".[100] Mr Rozdolovschii says that he consulted his stepson who advised him that Mr Rozdolovschii's fuel expenses could not be reimbursed through a tax return; he therefore became doubtful that Mr Giesh's suggestion was correct; and he "continued to complain about not receiving any car or fuel allowance".[101]
3. This evidence does not easily sit easily with Mr Rozdolovschii's evidence of his conversation with Mr Giesh in July 2022. First, it is implausible that Mr Rozdolovschii would have made the same enquiry in July 2022 he had made in June 2021, at least not without referring to the fact that he had made the same enquiry before, and that he had been advised it was not possible to claim a fuel allowance through a tax return. Second, in response to Mr Giesh's question whether Mr Rozdolovschii had filled in "your declaration for reimbursement/tax return? I recommended you to do so", Mr Rozdolovschii does not say that he told Mr Giesh he had received advice from his stepson that his fuel expenses could not be reimbursed through a tax return; Mr Rozdolovschii instead deposes he said he was unable to do so because he needed to fill a log book to be included in his tax return.
4. The second matter that is relevant to determining whether I should accept Mr Rozdolovschii's evidence is the 19 October 2022 email and Mr Giesh's response on 26 October 2022. In the 19 October 2022 email Mr Rozdolovschii said he agreed to give some little things to Mr Vazhenin, for example, "purchases, since Denis was provided with a working car, and I used a personal car for a year and a half without any compensation". In his response Mr Giesh said that "[r]egarding business trips in your car, I already informed you that you must include these expenses in your personal tax return and for this purpose you need to consult with your accountant". On the basis of this exchange, I am satisfied that at some time Mr Rozdolovschii made an inquiry in relation to amounts he paid for fuel when he used his car in the course of his employment, and that Mr Giesh informed Mr Rozdolovschii that he must include those expenses in his tax return. Given what I have found to be the implausibility of Mr Rozdolovschii's evidence, I am otherwise not satisfied that Mr Rozdolovschii made the inquiry in July 2022 in the terms he deposes he made that inquiry.
5. For these reasons I am not satisfied Mr Rozdolovschii made the Fourteenth workplace complaint and inquiry.

1. What the statement of claim alleges is the Fifteenth workplace complaint and inquiry is constituted by the following conversation Mr Rozdolovschii deposes he had with Mr Giesh "in or around August 2022", when Mr Giesh "was telling me off":[102]

I said: "I paid $50 for someone else's guilt. David caused a $200 damage of equipment and you did not make him to pay the money. Why this discrimination. I had told him not to do it. But he still was doing it and caused the damage. ?"

Sergei Giesh: "I could pay you back for the cable."

I said: "You should have paid."

1. This conversation purports to relate to an incident that occurred in August 2021, some one year before in which Mr Rozdolovschii says Mr Giesh had directed him to buy a cable "from your own pocket" because he blamed Mr Rozdolovschii for having unnecessarily called a specialist electrician to fix the SovPlym Compressor.[103] Mr Giesh denies the conversation, and affirms that Mr Rozdolovschii did not pay for any cable.
2. I do not accept Mr Rozdolovschii's evidence. First, it is implausible that Mr Rozdolovschii would have brought up the subject of having paid $50 out of his own pocket one year after he says he paid that amount. Second, Mr Rozdolovschii has not provided any record that he had paid the $50 he claims to have paid. I therefore do not accept that Mr Rozdolovschii made the Fifteenth workplace complaint and inquiry.
3. In his written submissions Mr Rozdolovschii submits there are "similar complaints made" by Mr Rozdolovschii, "but they are not expressly pleaded".[104] The evidence of these additional complaints and inquiries is said to be contained in paragraphs 241 and 242, and 275-280 of Mr Rozdolovschii's affidavit. In paragraphs 241 and 242 Mr Rozdolovschii deposes to Mr Giesh in July 2022 stating he would withhold "one overtime hour pay from each of you". I do not accept that evidence. Mr Rozdolovschii has not adduced any payslip or any other document which shows that any money had been deducted from his wages; and he has given no evidence to suggest he was unable to provide such evidence. Further, given that Mr Rozdolovschii had made complaints in writing, it is reasonable to expect that Mr Rozdolovschii would have complained in writing about Mr Giesh withholding $50 from Mr Rozdolovschii's wages; but Mr Rozdolovschii has not adduced any evidence of his so complaining.
4. In paragraphs 275-280 of his affidavit Mr Rozdolovschii deposes to the conversation to which I have already referred Mr Rozdolovschii has deposed, namely, that Mr Giesh, in August 2021, directed him to pay for a cable "from [his] own pocket" because he blamed Mr Rozdolovschii for having unnecessarily called a specialist electrician to fix the SovPlym Compressor.[105] I do not accept that evidence. Mr Rozdolovschii has not adduced any evidence to show that he made any such purchase, and he has given no evidence to say he was unable to do so.

1. Mr Rozdolovschii says that in around July 2022 an unplanned inventory was conducted in the Workshop. That made Mr Rozdolovschii think that Mr Giesh was planning to make major changes in the company.[106] Around the same period, Mr Rozdolovschii says Mr Giesh hired Mr Vazhenin as a processing plant operator; and Mr Giesh directed Mr Rozdolovschii to train Mr Vazhenin, and to pass all his knowledge to him, such as the X-ray fluorescence analysis, filing in the tables, and other tasks.[107]
2. From around August 2022 onwards, Mr Rozdolovschii observed that Mr Giesh's attitude towards him "had become very dismissive". Most of Mr Giesh's communications regarding workshop operations "would be" through Mr Vazhenin, who would pass on the information to Mr Rozdolovschii. Mr Rozdolovschii found this humiliating "because I felt that it would undermine my authority among the employees".[108] Moreover, Mr Giesh "would yell" at Mr Rozdolovschii "and use abusive words more often and would make [Mr Rozdolovschii] feel as though [he] was not wanted in the workshop".[109]
3. By July or August 2022 Mr Rozdolovschii started to get the feeling that he might be replaced soon because Mr Kasimov said to Mr Rozdolovschii: "You're going to be replaced. They do not know with who yet, but the director told David that they are going to replace you".[110] Mr Rozdolovschii then deposed as follows (Sixteenth Workplace Complaint Conversation):[111]

Consequently, in or around August 2022, on at least one occasion, in the kitchen area, while I was standing at the sink, and Sergei Giesh was making coffee at the coffee machine, I made complaints and enquiries to Sergei regarding my employment position, in words to the effect of:

I said: "You're trying to replace me, aren't you. You're trying to replace me, it's clear."

Sergei Giesh:

a. "We're just waiting for a specific person, Iura (referring to a contracted Design Engineer worker), what if you get ill, what if you go for a vacation?" or

b. "Think whatever you want."

I said: "I don't get sick, unlike all others who are much younger than me. I have never missed a working day, no matter how I felt, I would attend work."

Sergei Giesh: "Maybe not sick, but you might go to Russia or on vacation."

1. In considering whether to accept this evidence, it is necessary to refer to two matters. The first is that Mr Vazhenin did not commence employment with ARPL until 5 September 2022. Thus, if Mr Rozdolovschii had these conversations with Mr Giesh, they would have occurred after 5 September 2022, not in August 2022. The second matter is that in the 19 October 2022 email Mr Rozdolovschii addresses the same subject as the subject of the conversation with Mr Giesh to which he deposes in his affidavit. And it would be convenient at this point to set out in detail the contents of the 19 October 2022 email.

1. First, the 19 October 2022 email begins with Mr Rozdolovschii referring to his having sent at 16.34 a message asking Mr Giesh to set the date and time for an urgent meeting with Mr Rozdolovschii "on the issue of humiliation and bullying in the workshop"; and requested Mr Giesh to let him know of the date and time to meet. Mr Rozdolovschii said that, as head of the workshop, he had not had any information for the last month - "when, where you are going on business trips, when you will return".
2. Second, Mr Rozdolovschii described the purpose for which he wanted to hold a meeting with Mr Giesh "face to face"; and that was about "the situation in the workshop, at the workplace". Mr Rozdolovschii noted that he learnt from Mr Vazhenin that Mr Giesh was not in Sydney, and that he might be back on Friday.
3. Third, Mr Rozdolovschii says he was "now under psychological pressure in stress. And these events for humiliation and bullying did not begin today, you created the conditions for them". Mr Rozdolovschii claims that for a year and a half he tried to please Mr Giesh in everything; he was afraid of being fired; he did a lot that was not outlined in the Employment Contract; he "worked 2-3 hours overtime without pay every day with your connivance"; and he was "very afraid of being fired and endured constant humiliation from you".
4. Fourth, Mr Rozdolovschii recounted the events of a meeting of 27 September 2027. Mr Rozdolovschii said:

On September 27, 2022, at 11 a.m., you called me to a meeting that was prepared without my participation, I saw you and Denis at the scribbled board. Before the meeting, to my polite question about the purpose and objectives of the meeting, you yelled at me in the common kitchen of the workshop using profanity in my address. Probably the workshop workers heard it.

At the meeting itself, on the board, all my official duties were indicated, which you distributed during the meeting for Denis to perform. I did not agree with this. I agreed to give some little things to Denis. For example, purchases, since Denis was provided with a working car, and I used a personal car for a year and a half without any compensation. Or -- communication with the Moscow office, for me it is not so important. With what I argued, you did not pay any attention. At the end of the meeting, I repeated once again that the director does not dare to use swearing on the head of the workshop in front of his subordinates.

You said that following the results of this meeting, you will create a table about what and who will now perform my duties without changing my position in the contract. I said that I would also add my duties to this in written form. On the same day, or the next, the information was erased from the board, and I was so stressed that I don't remember the details well. And the director told me that he would send this information to me. This was not done.

In the conversation, in response to my objections, you persuaded me that none of the workshop workers would find out anything. And that I will continue to manage the workers of the workshop as before. To which I objected that it would be impossible, the shop workers are not stupid people.

This table was never designed or placed in the messenger.

I was not informed of any changes in my duties.

1. Fifth, Mr Rozdolovschii recounted events that occurred after the meeting of 27 September 2022. Mr Rozdolovschii stated he had continued to fulfil most of his duties, but communication with Mr Giesh "was carried out exclusively through Denis". Mr Rozdolovschii continued:

About where you are, what to do for the workshop, you would tell Denis. And Denis, a workshop worker, would bring the information to me, or often, directly to the workshop workers. I have been under tremendous stress, which has been going on since our last meeting with you, which you know very well anyway.

1. Sixth, Mr Rozdolovschii refers to his dealing with Mr Vazhenin, noting he had developed "an equal working relationship". Mr Rozdolovschii said that "[i]n case of my illness, on your instructions, I taught Denis all my duties"; and that "[t]his was done at your request". Mr Rozdolovschii said this was "logical for me - teamwork is needed in the workshop". Mr Rozdolovschii continued:

However, Denis was fully trained by me on all the details of the work - it was a pleasure to teach Denis and work in a team with Denis. In my opinion, [if?] Denis is worthy of the position of Deputy Director, then I would have fully recognized my subordination to Denis. But if you decide to give Denis my position as head of the workshop, then, I told you more than once, do everything strictly according to the policy. Denis's position was also not announced to the workshop staff.

1. Seventh, Mr Rozdolovschii claims that the way Mr Giesh had created Mr Vazhenin's role has undermined Mr Rozdolovschii's reputation in the Workshop; and he identifies what he says was the bullying and humiliation he experienced in the Workshop after 27 September 2022:

From September 27, 2022, I was subjected to humiliation and bullying in the workshop, which gradually increased.

At first, there were many questions from the shop workers:

- why the workshop worker Denis does not work in the workshop;

- why is constantly missing;

- why I, as the head of the workshop, do not know where he is and on what instructions;

- why the director never called the head of the workshop, but calls Denis every hour;

- why the instructions of the director are voiced by Denis;

And under all these circumstances, you, as director, assured me that no one would notice anything?

1. Eighth, Mr Rozdolovschii referred to an employee sending him an offensive text message which was followed up one hour later with an apology. Mr Rozdolovschii said he did not think that was normal, and he wanted to discuss that with Mr Giesh but Mr Giesh was not in.
2. Ninth, Mr Rozdolovschii refers to a worker or workers not abiding by his directions, or otherwise insulting Mr Rozdolovschii:

While working with new employees, I tried to make remarks to everyone in private, so as not to humiliate them, I repeated the same thing many times, including, and brought the information in writing.

As part of my work, I am obliged to make remarks to employees, for example:

- 4 grinding per hour is not enough;

- finishing work 15 minutes ahead of time is bad;

- being late is bad;

- 5 baskets per shift is not enough;

- from the barrel it is necessary to clean the material with a spatula;

To which I was openly declared - "do not tear your ass; the faithful dog was kicked in the ass; you are a worker just like us - one of us; and others do not require as much."

Since this was done in private, and disguised as a joke and banter, I insisted on my demand, but without too much fuss.

To my reasonable demand today, the worker answered openly: - Let Denis tell me. I insisted to follow my directives, but the situation you created is absolutely unacceptable.

I am still under stress, and this excuses my confused letter.

That's about the attitude of the workers of the workshop created by you towards me, and I wanted to have a meeting about this.

1. Given that Mr Vazhenin commenced employment on 5 September 2022, and the contents of the 19 October 2022 email, I do not accept the evidence Mr Rozdolovschii gives of the Sixteenth Workplace Complaint Conversation, or the circumstances to which he deposes led up to his having that conversation. The matters to which Mr Rozdolovschii deposes appear to be the matters he addressed in the 19 October 2022 email. Although in that email Mr Rozdolovschii claimed that Mr Giesh yelled at him at the meeting of 27 September 2022 in response to a question Mr Rozdolovschii asked, Mr Rozdolovschii did not claim that Mr Giesh "would yell" at Mr Rozdolovschii "and use abusive words more often and would make [Mr Rozdolovschii] feel as though [he] was not wanted in the workshop". On the contrary, Mr Rozdolovschii claimed that Mr Giesh did not make himself available to Mr Rozdolovschii, but instead communicated with him through Mr Vazhenin; and the humiliation Mr Rozdolovschii claimed he suffered was its being made apparent to the other workers that instructions were being conveyed through Mr Vazhenin, not Mr Giesh.
2. Further, Mr Rozdolovschii did not claim in the 19 October 2022 email that Mr Giesh was planning on replacing him with Mr Vazhenin. Mr Rozdolovschii stated that if Mr Vazhenin "is worthy of the position of Deputy Director", Mr Rozdolovschii would "have fully recognised [his] subordination to" Mr Vazhenin; but Mr Rozdolovschii insisted that if Mr Giesh decided to give Mr Vazhenin his position, then, as Mr Rozdolovschii says he had told Mr Giesh more than once, Mr Giesh needed to "do everything strictly according to policy". That does suggest that sometime before the 19 October 2022 email Mr Rozdolovschii discussed the possibility that Mr Giesh would give Mr Vazhenin Mr Rozdolovschii's position; but if Mr Rozdolovschii did have any such conversation, it would not have been to the effect of the Sixteenth Workplace Complaint Conversation because that conversation does not refer to Mr Vazhenin, and it does not refer to Mr Rozdolovschii stating that, if Mr Giesh were to give Mr Rozdolovschii's position to Mr Vazhenin, it needed to be done "strictly according to policy".
3. I am therefore not satisfied that Mr Rozdolovschii made the Sixteenth workplace complaint and inquiry.

Seventeenth workplace complaint - 16 August 2022

1. At 2.19 pm on 16 August 2022 Mr Rozdolovschii sent an email to Mr Giesh. It began with Mr Rozdolovschii stating that on Monday 15 August 2022, at 4.41 pm, Mr Giesh "accused" Mr Rozdolovschii by phone of actions at work Mr Rozdolovschii did not commit.[112] The statement of claim identifies this email as the Seventeenth workplace complaint and inquiry. In that email Mr Rozdolovschii made a number of statements, including the following:

(a) In a very rude way "they demanded" from Mr Rozdolovschii an explanation why Mr Rozdolovschii did not enter data into Excel, when he would do it, and why he did not do it, since there was not much work now.

(b) At that time Mr Rozdolovschii was at the workplace, entering data into the table. Mr Rozdolovschii told Mr Giesh he was completely absorbed in his work.

(c) Mr Giesh responded "in a very rude manner that he had just watched", and "there was no data".

(d) In response to Mr Rozdolovschii's objection that it would not take long, because Mr Rozdolovschii was sitting at a computer, Mr Giesh told Mr Rozdolovschii "insultingly" that "I'm spinning aroung [sic], that is, I'm trying to get out"; "no data"; "that I was not saved in the table"; "that I just entered the client's data into the table in order to mislead the director".

(e) In a stressful state with shaking hands, Mr Rozdolovschii opened the data of the client into the table "on 08/10/22".

(f) Over Mr Rozdolovschii's objections, he entered the data, and completed his work on time. But Mr Giesh continued to accuse Mr Rozdolovschii of what he did not do.

(g) Mr Giesh said, "you can't enter 6 lines with a lot of information in a minute, or you can't save it - an unsaved copy will remain".

(h) When Mr Rozdolovschii asked Mr Giesh why he dared to talk to Mr Rozdolovschii like that, Mr Giesh explained by saying he was Mr Rozdolovschii's director.

(i) Mr Rozdolovschii apologised, and told Mr Giesh he could not talk to Mr Rozdolovschii like that, and he hung up.

(j) "Further communication took place with the director of the working network in writing, until 20:00".

(k) Already other working moments were clarified "with predilection during non-working hours". Mr Rozdolovschii experienced extreme stress. Mr Rozdolovschii had "not been so humiliated for a long time".

(l) From "resentment and injustice" Mr Rozdolovschii did not sleep all night; he had a headache, heartbeat, shaking hands, increased heart rate, and blood pressure.

(m) Mr Rozdolovschii came to work to discuss "this situation" with Mr Giesh and go to a doctor.

(n) Mr Rozdolovschii was already at work at 9.00 am but Mr Giesh was at home with COVID, which meant Mr Rozdolovschii could not leave the workshop and employees.

(o) It was with great difficulty that Mr Rozdolovschii completed the working day. It was very difficult; the stress did not go away. And it was possible Mr Rozdolovschii got infected with COVID.

1. Mr Rozdolovschii ended his email with the following:

WITH STRESS AND WEAKENED IMMUNITY IT IS EASY.

Therefore, in an hour I will close the shop, put it on the alarm.

I ask you to take measures - who will open the workshop tomorrow and will be present at the work of two workers.

After the director leaves and I go to work, I ask you to schedule an official meeting, with the presence of my HR representative,

Please notify me in writing of the time and place of the meeting.

1. The words "HR specialist" are a reference to Mr Rozdolovschii's son in law, Anton,[113] who worked as a human resources manager.[114]
2. I am satisfied that, by his email of 16 August 2022, Mr Rozdolovschii expressed two distinct grievances. The first is that in a telephone conversation of 15 August 2022 Mr Giesh had falsely accused Mr Rozdolovschii that he had entered data when he had not; and the second being the tone with which Mr Giesh accused Mr Rozdolovschii. I am also satisfied the expression of grievances related to Mr Rozdolovschii's employment, and by making them Mr Rozdolovschii exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.
3. Mr Giesh responded at 9.47 am on 17 August 2022 with the following email:[115]

Thank you for you [sic] email!

I would like to inform you that I cannot agree with statements in your email.

Reason of my call on Monday, August 15 2022 was to reconfirm following things:

If all records from previous week were input in the relevant spreadsheets

If any records are missing, when they will be input in spreadsheets

Is there any delay in inputting data to spreadsheets

Conversation was made in polite way with no humiliation or blaming.

1. Mr Rozdolovschii responded to Mr Giesh's email by email sent at 20.56 pm on 17 August 2022. Mr Rozdolovschii says that he sent the email "in English"; and it would be convenient to set out the email in full (errors in original):[116]

Thank you for providing your own interpretation of the way you communicated to me in the email you sent on Wednesday 17, August 2022 at approximately 9.47am.

Whist I acknowledge that you do not agree with the concerns raised in my inital email, nevertheless it is not the the matter for you to determine how it made me feel. As mentioned before, during the conversation over the phone that occured at approximately 16.41pm on Monday 15, August 2022, I would like to remind you to be mindful of the way you communicate with myself and others in the workplace. This is particulary so, that in the same phone conversation i said to you words to the effect "why do you talk to me this way" to which you had responded to me words to the effect "because I am the director". I had finished conversation with words to the effect "the way you talk to me is unacceptable and i have to finish this call'".

I am concerned that this is not the first time that you have spoken to me in unprofessional and accusative manner.

Further acknowledge in your email response you have raised the reason/s for your call that occured on Monday 15, August 2022 at approximately 16.41pm. As noted above, the way you have communicated to me was unprofessional and will certainly not constitute a polite manner. Put simply, it was unacceptable to the extent that it has indeed made me feel humiliated.

In addition, as noted in my inital email this particular instance caused me significant level of stress to the extent that I had to request a sick leave and as such I will be providing you with a medical certificate outlining the reason for my absence today Wednesday 17, August 2022.

Sergey, again i would like to reiterate this is not the first time you made feel that way. Thus, I ask you to be mindful of the way you communicate with me in the workplace.

Should you wish to discuss this matter further, please let me know and we may arrange a meeting between us. I trust this will not be necessary as the my concerns raised above will be actioned immediately.

1. I am satisfied that by his email sent on 17 August 2022 Mr Rozdolovschii expressed a grievance, namely, about the way in which Mr Giesh spoke to him during the telephone conversation of 15 August 2022; and that that was not the first occasion on which Mr Giesh had spoken to Mr Rozdolovschii in an unprofessional and accusative manner. I am also satisfied the expression of grievances related to Mr Rozdolovschii's employment, and by making them, therefore, Mr Rozdolovschii exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.
2. It is common ground that Mr Rozdolovschii and Mr Giesh had a telephone conversation in the later afternoon of 15 August 2022. According to Mr Rozdolovschii, the conversation was as follows:[117]

Sergei Giesh (yelling): "Why did you not enter the client's data to the excel spreadsheet? When are you going to do that?"

I said: "I am completely absorbed in this work and not to give you inaccurate information, I need to quickly check the table."

Sergei Giesh (yelling and in a rude tone): "I have just looked, there's no data about the client."

I said: "Sergei, I am sitting at a working computer, it won't take long. I will check. It's there."

Sergei Giesh (rudely): "You're spinning around, trying to get out. You're lying to me."

I checked the excel spreadsheet with shaking hands and said: "The data was entered on 10 of August. I completed my work on time."

Sergei Giesh (yelling): "You just entered the data into the table to mislead me. Why do you lie to me? You're trying to justify yourself all the time."

I said: "Don't talk to me like that. I am not lying or misleading you. This is really offensive to me, it's an attack on my character"

Sergei Giesh: "I talk to you like that because I am your director. Don't lie to me. "

I said: "Sorry Sergei, the way you talk to me is unacceptable. I have to finish this conversation. I am hanging up"

Immediately thereafter, I hang up the telephone and a few minutes later, Sergei Giesh wrote me a Threema message with words to the effect of: "The data is there now."

1. According to Mr Giesh, a conversation to the following effect occurred:

Mr Giesh: "Hi Iurii, I'm in the airport waiting for my flight to Sydney. I'm checking data on the server and can't find data entries for the [name of client].. Can you please check if this client data complete."

Mr Rozdolovschii: "I don't know.. I can't remember..."

Mr Giesh: "Are you in front of computer by any chance?"

Mr Rozdolovschii: "I did everything ... probably..."

Mr Giesh: "Can you please check now, client is asked me for 3 times already. I need at least provide him with the time frame when results would be ready..."

Mr Rozdolovschii: I can't talk ... I drop the call ...

1. Mr Giesh's account of the conversation does not reflect what Mr Giesh said to Mr Rozdolovschii in the email he sent to Mr Rozdolovschii on 17 August 2022. In his email Mr Giesh did not refer to his making enquiries about data having been entered in relation to a particular client; Mr Giesh says that he phoned Mr Rozdolovschii to "reconfirm" what appear to be general inquiries about data entry. Mr Rozdolovschii's account of the conversation, on the other hand, substantially reflects what Mr Rozdolovschii, in the email he sent to Mr Giesh on 16 August 2022, said occurred in the telephone conversation.
2. I find that Mr Giesh believed that data had not been entered; he telephoned Mr Rozdolovschii about this; in the course of the telephone conversation Mr Giesh formed the belief that Mr Rozdolovschii, although stating that he had entered the data, in fact only entered the data at the time Mr Giesh telephoned him about the data entry; and Mr Giesh conveyed to Mr Rozdolovschii this belief. I am not satisfied, however, that Mr Giesh shouted during the conversation. Mr Rozdolovschii did not in his email state that Mr Giesh shouted at Mr Rozdolovschii; Mr Rozdolovschii said that Mr Giesh spoke to him in a "rude way". If Mr Giesh had in fact shouted at him, Mr Rozdolovschii would have said so.
3. According to Mr Rozdolovschii, on 16 August 2022, when he arrived at work, he approached Mr Giesh at the office and had the following conversation:[118]

I said: "You were impermissibly rude."

Sergei Giesh: "Well, it was Monday, a difficult day."

1. In the email he sent to Mr Giesh on 16 August 2022, however, Mr Rozdolovschii said that Mr Giesh was at home suffering from COVID. I attach greater credibility to what Mr Rozdolovschii said in his email about whether Mr Giesh was at the Workshop on 16 August 2022 than what Mr Rozdolovschii deposes to in his affidavit about that subject. I therefore do not accept that Mr Rozdolovschii had a conversation with Mr Giesh on 16 August 2022 to the effect he deposes.

17 August 2022 - Temporary absence from work and Third adverse action

1. On 17 August 2022 Mr Rozdolovschii obtained a medical certificate from a general practitioner certifying Mr Rozdolovschii was unfit for work from 17 to 19 August 2022.[119] Mr Rozdolovschii, however, attended work on 18 and 19 August 2022. Mr Rozdolovschii says he did so because he had the workshop keys and "after Sergei Giesh's above-mentioned remarks", he was afraid to lose his job if he did not show up at work.[120]
2. On his return to work on 18 August 2022 Mr Rozdolovschii sent an email to Mr Giesh attaching the medical certificate. Mr Rozdolovschii says Mr Giesh telephoned him and said: "Any GP can give you that. It's nothing. I will fire you in case you put in a claim", by which Mr Rozdolovschii understood Mr Giesh to be referring to a workers compensation claim.[121] The statement of claim identifies this alleged statement as the Third adverse action.[122] Mr Rozdolovschii says he remained "silent, feeling smashed, defeated, and lost".[123] Mr Giesh denies ever threatening Mr Rozdolovschii to fire him for putting in a workers compensation claim or for taking personal leave.[124]
3. I do not accept Mr Rozdolovschii's evidence that Mr Giesh said words to the effect: "Any GP can give you that. It's nothing. I will fire you in case you put in a claim". First, it is inherently unlikely because there was nothing that could reasonably have suggested that the medical certificate related to any matter that could give rise to a workers compensation claim; the medical certificate indicated that Mr Rozdolovschii was unfit for work only from 17 to 19 August 2022. Second, Mr Rozdolovschii was at work at the time he sent the medical certificate by email to Mr Giesh, which by itself would have indicated to Mr Giesh that, notwithstanding the medical certificate, Mr Rozdolovschii was fit to attend work. Third, given the matters about which Mr Rozdolovschii complained in writing, and in particular, the matters stated in the email of 16 August 2022, the 12 September 2022 message, and the 19 October 2022 email, Mr Rozdolovschii would have made a complaint in writing to Mr Giesh had Mr Giesh threatened to fire Mr Giesh if he made a workers compensation claim.
4. I am therefore not satisfied that ARPL took the Third adverse action.

1. According to Mr Giesh, on 19 August 2022 he had a face-to-face conversation with Mr Rozdolovschii at the Workshop car park. Mr Giesh says that during the conversation Mr Rozdolovschii said to Mr Giesh the following:

"My son in law Anton is a HR consultant. Anton wants to bring fake cases against Autokat to get money from me and the company. All of my emails about issues, injures etc were written by Anton.

You'll be punished and made to pay."

1. There is in evidence four CCTV footage files which depict Mr Rozdolovschii and Mr Giesh having a conversation at what appears to be an industrial car park;[125] and there is also in evidence two transcripts of an English translation of parts of what was picked up by the CCTV footage. The translation was made by a Ms Olga Kozyrevitch, who appears to be a NAATI Certified translator. The first of the transcripts states as follows:[126]

Video interpreting and transcription

File Name: 2022-08-19 14.03.59 - 14.31.42 (1)

Case Name: 1st video, August 19, 2023

Speaker 1 - Sergey | Speaker 2 - Yuri

Method: the video was analysed, and the soundtrack was enhanced in Audacity to reduce background noise, slow the playback speed, and assist the interpreter with the meaning transfer.

Background: this transcript reproduces a workplace conversation recorded via a keyhole security camera.

Total video time: 10 minutes 10 seconds

1. The second of the two transcripts contains the same statement, except it is described as the "2nd video", and that the total video time is 9 minutes 31 seconds.[127]
2. The first of the transcripts begins with Mr Giesh completing a call after which Mr Rozdolovschii asks if everything was ok. Mr Giesh appears to have reported on what was said by the other party to the telephone call. It appears to be another employee who had been away sick. Mr Rozdolovschii and Mr Giesh spoke a little more about the other party to the telephone call. Mr Rozdolovschii then said the following (emphasis added):

2: I wanted to say that when you called me, you really snapped at me. You know perfectly well that I cannot save the data, and that's why it was so hurtful and bewildering. I didn't understand why are you having a go at me.

3:30-

I have worked here for a year and six months, and for a year and three months, Anton constantly saying he's had enough and threatening to [translator note: possibly quit?] and saying he's had enough. Anton has said it for over a year now. I heard it at the BBQ with Vanya, even though it was work-related; he talked about it till the morning, which was emotional for him. There were many occasions where he said, that's it, enough, I'll tear shit down, fuck it, that's it!

So when that [translator note: a historical reference not mentioned at the time] happened, he said: "That's it, someone must answer for this." The wish is now to ask for help and build a case to punish you and make you pay.

1. Mr Rozdolovschii then moved to a different topic, namely, that although his contract says that Mr Rozdolovschii can select and hire workers, there are still times "when they bring me someone and say, here, fucking work with this one"; and Mr Rozdolovschii appeared to refer to an employee whose explanation for being late was that he had overslept. The following is then recorded:

2 [Mr Rozdolovschii]: I get barked over by you out of nowhere. I am trying to explain things to you, and you lose your temper with me without good reason.

1 [Mr Giesh]: It's true, facts are facts.

2 [Mr Rozdolovschii]: When Anton came, the same thing happened. He was on the receiving end of this. He was once at a meeting: "Sit down. Sergey will apologise to you", "I don't fucking need his apology!" Yura, you are an arsewipe. You get paid twice the amount.

I want to say, start looking for a worker, but don't hire the young 23-year-olds. We work together well [possibly Ivan], even though we quarrel.

1. The transcript then records Mr Rozdolovschii and Mr Giesh discussing other person, namely, "Anton" and his brother.
2. The second of the two transcripts begins with Mr Giesh reporting on a discussion with what appears to be another employee; and this is followed with discussion about an employee named "Vanya". Towards the end of the transcript, the following is recorded:

7:10-

1 [Mr Giesh]: I want to ask for a favour. We said things [translator note: unclear, but something about a system malfunction], and it all got heated. Anyone would lose it in situations like these.

2 [Mr Rozdolovschii]: I could not contain myself.

1 [Mr Giesh]: You would not believe it, but Valera wasn't there, and I didn't know what was happening.

2 [Mr Rozdolovschii]: I don't know.

1 [Mr Giesh]: I will send you a photo later. Maybe the server malfunctioned.

2 [Mr Rozdolovschii]: I wanted Vanya to assist and was waiting for him. You don't know about the SovPlym, and I know that doesn't excuse me...

1 [Mr Giesh]: You were on high alert and became overwhelmed.

2 [Mr Rozdolovschii]: No, it's just I was already on edge and shaking. You have no idea what it took for me to stay! I was this close to smashing the fucking door shut. Shove your SovPlym up yours! I was fuming, but I stayed, and Vanya called out: "Sensor, sensor, the problem is with the sensor!". I begged him to get Vanya to help with technical support.

1. Neither of the two transcripts contain the word "fake"; and although the first of the two words contains the expression "build a case" and "Anton", I am satisfied that this was not intended to be a reference to Mr Rozdolovschii's son in law, "Anton", but to some other "Anton". The transcripts, however, and the CCTV footage itself, are relevant. First, they disclose a civil discourse between Mr Rozdolovschii and Mr Giesh, and one based on the familiarity one would expect between two persons who had been working together for some time. Second, Mr Giesh stated the words "It's true, facts are facts" in response to Mr Rozdolovschii's statement: "I get barked over by you out of nowhere. I am trying to explain things to you, and you lose your temper with me without good reason". Mr Giesh was cross-examined about this part of the first transcript, and he gave evidence that included the following:[128]

I just want to, again, understand this, and I apologise to the court if I'm labouring, but it's important. So where you see, for example:

I get barked over by you out of nowhere. I'm trying to explain things to you -

your evidence is there was more conversation, and then you said:

It's true. Facts are facts.

That's your evidence?‑‑‑So we were talking about, after the phrase, "I get barked over", etcetera, etcetera, etcetera, then were more conversations - I mean, more words.

Yes. All right?‑‑‑And then, "It's true".

And then you say, "It's true"?‑‑‑It's not - so in other words, "It's true. Facts are facts" - not related to, "I get barked over".

Well, I want to suggest to you that's not right. I want to suggest to you that you can see from this transcript, it says 3.30, which is a time, and it says 4.15, and then it documents the conversations at 4.15, and my client said - complained about your behaviour, said:

You barked over me. I'm trying to explain things to you. You lose your temper -

and you responded:

It's true. Facts are facts.

What do you say to that?‑‑‑I could not accept that I was barking over and I would not say that's fact. I agree. That's related to different things.

1. By this evidence Mr Giesh intended to convey that the words "It's true, facts are facts" related to a conversation that occurred after Mr Rozdolovschii referred to getting barked at by Mr Giesh. I do not accept that evidence; there is nothing in the transcript that could reasonably support Mr Giesh's evidence. Nevertheless, Mr Giesh's admission recorded on the transcript of the CCTV footage must be read in the context of the entire conversation depicted on the CCTV and in the two transcripts. The admission goes no further than that, at least when Mr Rozdolovschii explained things to Mr Giesh, Mr Giesh was liable to lose his temper with Mr Rozdolovschii.

Eighteenth workplace complaint - suggestion of third persons HR

1. In his affidavit Mr Rozdolovschii gives the following evidence in support of what the statement of claim identified as the Eighteenth workplace complaint and inquiry:[129]

From in or around August 2022 until around October 2022, on at least 3 separate occasions, I approached Sergei Giesh in person at the car park and requested him to outsource a HR Person to solve numerous work-related issues, using words to the effect of:

I said:

1. "If you don't know something and I don't know something, maybe it is a good idea if a third person, HR, explains those things to us."

2. "I need an official meeting with you in the presence of a third person,

HR or support."

1. "I ask for a meeting, I want an official conversation, we have to discuss all and solve the situation. I will ask Anton, who works in HR to be my support person. We don't have HR. I have a representative; he can protect me and help you act correctly."

In response to my requests, Sergei Giesh would look displeased and would say words to the effect of:

Sergei Giesh said:

1. "Let's slow down. We don't need any HR. If you keep bringing this up, I will hire a lawyer against you two (referring to me and Anton)."
2. "Why would you need Anton? What do you want, why do you write me these emails?"
3. "In three months I can make your life very difficult and you will drown in technical issues without my support, I can create toxic relationships and I can even fire you."
4. "Stop mind-fucking me. I know you talked to Anton."- (Sergei Giesh made this comment near the coffee machine, I think David and Denis in a 3-meter distance, I didn't see their faces I had my back towards them and I do not know how they reacted)

1. In the statement of claim, the statements Mr Rozdolovschii deposes Mr Giesh made are identified as the Fourth adverse action.[130]
2. Mr Giesh denies the conversations.[131]
3. Mr Rozdolovschii's evidence is not credible, and I do not accept it. Mr Rozdolovschii does not identify the "numerous work-related issues" that were to be outsourced to a third party HR person; the evidence is inconsistent with the email Mr Rozdolovschii sent to Mr Giesh on 16 August 2022 in which he demanded Mr Giesh "schedule an official meeting, with the presence of my HR representative", without referring to such meeting being mediated through a third person; Mr Giesh is said to have asked why Mr Rozdolovschii has written "all these emails", but Mr Rozdolovschii does not identify the emails to which Mr Giesh was supposedly referring; and the responses Mr Giesh is said to have given are disproportionate to what Mr Rozdolovschii deposes he said, and, moreover, inconsistent with the civil manner in which Mr Giesh responded to the complaint Mr Rozdolovschii made at the meeting in the car park on 19 August 2022 that Mr Giesh barked over him. Further, given the matters about which Mr Rozdolovschii complained in writing, and in particular, the matters stated in the email of 16 August 2022, the 12 September 2022 message, and the 19 October 2022 email, Mr Rozdolovschii would have made a complaint in writing to Mr Giesh had Mr Giesh made the threats Mr Rozdolovschii deposes he made.
4. I am therefore not satisfied Mr Rozdolovschii made the Eighteenth workplace complaint and inquiry, or that ARPL took the Fourth adverse action.

1. Mr Rozdolovschii deposes that in around late August 2022 Mr Kasimov, whom Mr Rozdolovschii describes as a processing plant operator, approached him and said that Mr Giesh and Mr Klymuk told him that Mr Rozdolovschii was going to be replaced, they did not say by whom, and that Mr Rozdolovschii was a " nobody here".[132] Mr Rozdolovschii deposes that later that day he approached Mr Giesh, and they had the following conversation:[133]

I said: "You tell me that I am the supervisor, yet you defame me and diminish my authority in front of David and I am just a labourer."

Sergei Giesh: "That is not true. David and I talked only about the job.'

1. Mr Rozdolovschii further deposes that, "on at least two more occasions, once in the smoking area and in the office", Mr Rozdolovschii had the following conversation with Mr Giesh:[134]

I said: "You tell me that I am the supervisor, yet your action towards me makes people think otherwise. Other labourers question my authority when I instruct them to do something, they say let the director tell me this.

Sergei Giesh: "That is not true"

1. The statement of claim identifies the statements to which Mr Rozdolovschii deposes he made in these conversations as the Nineteenth workplace complaint.[135]
2. Relevant to determining whether I should accept Mr Rozdolovschii's evidence is the evidence Mr Rozdolovschii gives of the Sixteenth Workplace Complaint Conversation. By his evidence Mr Rozdolovschii said that "[b]y July-August 2022" Mr Kasimov advised Mr Rozdolovschii: "You're going to be replaced. They do not know with who yet, but the director told David [Klymuk] that they are going to replace you". Mr Rozdolovschii does not depose to Mr Kasimov also having stated that it was both Mr Giesh and Mr Klymuk who had told him that ARPL was going to replace Mr Rozdolovschii; and he does not depose to Mr Kasimov having stated that Mr Giesh and Mr Klymuk said that he was "nobody here".
3. That difference has led to Mr Rozdolovschii deposing to two separate conversations he says resulted from what Mr Klymuk had told him, one where Mr Rozdolovschii says he complained about Mr Giesh planning to replace him; and one where Mr Rozdolovschii complained about having been defamed. This would only make sense if either Mr Kasimov informed Mr Rozdolovschii on two occasions that Mr Giesh intended to replace him and on the second occasion adding that Mr Giesh had stated to Mr Klymuk that Mr Rozdolovschii was a nobody; or if Mr Kasimov told Mr Rozdolovschii what in support of the Nineteenth complaint and inquiry Mr Rozdolovschii deposes he told Mr Giesh, but Mr Rozdolovschii had two separate conversations with Mr Giesh, one in which he complained about Mr Giesh intending to replace him, and one in which Mr Giesh defamed him. Neither of these possibilities is plausible.
4. I therefore do not accept Mr Rozdolovschii's evidence in support of the Nineteenth complaint and inquiry; and, for that reason, I am not satisfied Mr Rozdolovschii made the Nineteenth workplace right and inquiry.

1. Mr Rozdolovschii also deposes to having complained to Mr Giesh about threats Mr Rozdolovschii says another employee, Mr Bahktiar Kasimov, made to him. That is so, even though these alleged complaints are not pleaded as a workplace complaint. Mr Rozdolovschii deposes that "from around August 2022 to October 2022, on at least 3 separate occasions at the car park" he "made complaints and inquiries to Sergei Giesh about Bakhtiar's conduct towards" Mr Rozdolovschii in words to the following effect:[136]

I said: "Bakhtiar is questioning my authority. I am the workshop supervisor. Can you please tell him to cut this out, it may be a good idea to talk to the labourers and explain to them who's the supervisor and why a labourer [Denis Vajenin [sic]] is giving orders."

To my above complaints and/or questions, Sergei Giesh would reply with words to the effect of:

Sergei Giesh said:

(a) "I am the director, I decide who does what."

(b) "Business needs it."

(c) "That's the business."

1. I do not accept this evidence. It is implausible that Mr Rozdolovschii would on three occasions have said the same words to Mr Giesh about Mr Bahktiar Kasimov. The conversation would be implausible even if Mr Rozdolovschii had deposed it occurred once. Mr Rozdolovschii does not identify the conduct Bahktiar Kasimov engaged in which Mr Rozdolovschii believed constituted the questioning of his authority, and therefore the conduct Mr Rozdolovschii wanted Mr Giesh to ask Mr Bahktiar Kasimov to stop doing.

1. On 5 September 2022 Mr Vazhenin commenced employment with ARPL as a processing plant operator who would report to Mr Giesh. Mr Vazhenin did so pursuant to the terms of a written contract of employment.[137] The schedule to that contract specified the duties and responsibilities of Mr Vazhenin. They are substantially the same as the duties specified in Mr Rozdolovschii's contract of employment, except they included "equipment upgrade, modification, improvement, including but not limited to upgrade existing equipment and ordering new equipment after obtaining all required internal approvals and confirmations"; and they did not include "[w]orking with subordinates, planning vacations, maintaining a healthy working team spirit", being one of the duties specified in Mr Rozdolovschii's contract of employment. Mr Vazhenin's salary was stated to be $75,000 per annum plus superannuation.

Twentieth workplace complaint -Britix24 messages 6 and 12 September 2022

1. According to Mr Giesh, on 5 September 2022 he had his monthly meeting with Mr Rozdolovschii where he and Mr Rozdolovschii discussed workshop issues, and the setting up of plans for September 2022.[138] On 6 September 2022 Mr Giesh sent to Mr Rozdolovschii what he said was a "record" of "the results of our meeting on 05.09.2022".[139] The message, as translated by Ms Kozyrevitch, was as follows:

Yuri, hi!

I will record here the results of our meeting on 05.09.2022.

Results of the workshop work for August 2022

- Breakage of the cable tension bar on alligator shears. Repaired by Adrian and myself.

- Adrian made adjustments to alligator shear cutters

- oil leakage from the alligator shears tank cover - not fixed

- SB500 - repair of tank lid fasteners - completed

- compressor for Sovplim - repaired by Adrian

- Shredders - due to not cleaning the breather filters and the breathers themselves, material infiltrated the electric motors, causing them to fail. Adrian repaired the electric motors.

- Alligator helmets/nets have not been ordered

- an error was discovered in the SGS Parts Plus customer analysis dated 09.08.2022

05.08.2022. Access to the server's analysis and weight accounting file is restricted to read-only for everyone and read/write access is available for Yuri. Care must be taken to ensure that the correct analysis is entered as incorrectly entered analysis has caused a loss to the company of approximately AUD18000 (Car and Metal Field client, purchase dated 08.06.2022.

- Nilfisk hoovers - fixing of filter fixings - rectified by Adrian.

Plans for September 2022

- regular maintenance/adjustment of alligator shears

- shredder maintenance

- cleaning of breathers, milks and filters every 2-3 grinds MUST be done!

- assess the need to replace filters in Nilfisk hoovers and replace if necessary

- order the extension hose on the exhaust of your Nilfisk hoover (must be done by 14 September 2022)

- Extension of the exhaust hose (on SovPoim) on the Nilfisk hoover to be able to pump material out of the SB500 with the hose on the exhaust of the hoover (to be done by 14 September 2022).

- check availability of components and consumables. If necessary, order

- check availability and order PPE (masks, alligator helmets, special clothing, gloves).

- Design and build a box or other structure on alligator shearwaters to reduce loss and spread to the air.

Develop and implement baskets or other structures for receiving cut material under the alligator shears to minimise the loss of material when cutting cans on the alligator shears.

- select, obtain/negotiate pricing and order pallet racking for the receiving area

- catalogue replenishment - at least 50 pcs per week starting from September 19 (by this date, Denis should be more or less up to speed, and I think he will help with catalogues)

- other tasks arising in the course of operational activities during the month

At the end of September, we will meet to discuss the results.

1. Mr Rozdolovschii responded on 12 September 2022 (this being the 12 September 2022 message I identified earlier in these reasons), which the statement of claim identified as the Twentieth workplace complaint and inquiry.[140] It would be useful to set out Mr Rozdolovschii's response (as translated by Ms Kozyrevitch) in full (italics in original).

Sergei, hi!

Thank you so much for returning the format of setting weekly/monthly tasks and monitoring their fulfilment.

After reading all the above points in the email, I would like to clarify a few comments.

First, I would like to point out that I was surprised that this time, our meeting, which took place on Monday, 5 September 2022, at 16:00, had a somewhat accusatory tone.

Secondly, during the whole work period, apart from fulfilling my main duties (stipulated in the contract) as foreman, I worked as a handyman in the shop (Ivan cut and I threshed). And the two of us made about 2 to 6 tonnes a month. Moreover, I was forced to perform many tasks that were not stipulated in my contract.

Thirdly, since July 2022, two employees have been working in the workshop besides me. Both of them have no local industrial experience. Despite the lack of necessary experience, we processed up to 9 tonnes of material in July and August, which was an incredible load for me and the equipment.

Fourthly, I want to remind you how you hired me and how I passed my 6-month probationary period. When I was hired, you and I discussed important topics, which included the following:

- I have no electrical experience or education. You announced that this would not be a problem.

- Excellent English language skills were not a prerequisite for the job, and you agreed that you would take phone orders yourself (anything regarding texting or online ordering is not a problem).

- everything related to purchasing and delivering goods from the shop, as we agreed, I can do myself.

- The company did not provide me with work transport, and I used my personal car without any compensation for work purposes.

- Adrian, Ivan, and I always worked as a team, and it was normal practice to help each other.

So:

- Adrian helped me change and repair the Nilfisk filter, as did Ivan, both during the probationary period and afterwards, which is never a problem for you.

- Adrian made various deliveries with his vehicle, which is a Ute and is leased from the company.

- Adrian repaired a broken cable tensioning bar on the alligator shears, and I asked Adrian for advice after the end of work and to look at the alligator shears. The inspection didn't go well, and after the inspection, both you and Adrian spent about two hours looking at it. But anyway, I want to remind you that I have no engineering background and you know it. I have gratefully always accepted any help I can get.

- Adrian made the alligator shear cutter adjustment.

- An oil leak from under the alligator shear tank lid - not fixed.

The leak was fixed by me personally. As you know, the contractor you sent was sick with Covid and couldn't come to the site. We both called the contractor, and he notified us.

- Compressor for Sovplim - repaired by Adrian.

Adrian took the compressor to a shop in his Ute, for which the company reimbursed him. In my case, I don't have a proper car, and as shown above, in all the times I have used a personal car, I have never been compensated for service or petrol. Let me remind you that I took the same compressor to the warranty repair with Ivan's personal car without any compensation.

In addition, I use my car on your errands almost every day without any compensation for the car. The petrol is purchased from my salary.

- Shredders - due to not cleaning the breather filters and the breathers themselves, material infiltrated the electric motors, causing them to fail. Adrian repaired the electric motors.

New plant employees were instructed to clean the breather plug right from the very first time. Moreover, as I have already mentioned - they did not have any experience in production, which is a big factor in making such a mistake. I conducted another training session, this time under sign-off.

Additional reasons could include both the sheer volume of material in those two months and the normal wear and tear of the equipment over a year. In addition, I have reported to you all the breakdowns and why they occurred.

- Alligator helmets/nets have not been ordered

I went to the shop you mentioned on the 11th of August 2022, and there were no such items there. I reported to you and sent you a photo from the shop. After a long time, you told me to order with delivery. I paid for the helmet before your letter. I also reported to you and sent you a photo of the order. You can see the date and hour on the cashier's cheque. Again, I had to spend my own money, which you return to me sometimes within a month.

- an error was discovered in the SGS Parts Plus customer analysis dated 09.08.2022

05.08.2022. Access to the server's analysis and weight accounting file is restricted to read-only for everyone and read/write access is available for Yuri. Care must be taken to ensure that the correct analysis is entered as incorrectly entered analysis has caused a loss to the company of approximately AUD18000 (Car and Metal Field client, purchase dated 08.06.2022.

Indeed, in June, we discussed the damage I allegedly caused to the company. I want to remind you that in this case, which took place on 08.09.2022, I was not the only one with access to the file. I was initially quoted a figure of AUD9000. After a very short time, you gave me the figure of $10,000. Then, after a long time, you and I discussed the figure of $3,500 and some measures that will solve this incident. In violation of your words, you have now voiced the figure of $18,000. I am surprised at this variation in the sums of the losses and have not been presented with any calculations.

Let me remind you that I have always been sensitive to my responsibility to put figures in the tables. In order to reduce the probability of damage to the company due to the absence of (0), I have introduced an error-checking system (highlighting high analyses in red) and notified you.

To which you said: "Then I won't pay attention to your system". I was very surprised.

Now, both you and I have access to make changes to the table, and if I understand correctly, it is system administrator access. Elena's access to the table has been changed. I don't think that's right. If I am still not the only one with access, and I have a choice, I ask to return the access to the table to Elena. It was not my intention to insult Elena by distrusting her. Elena has often helped me with the table distantly.

Plans for September 2022

- catalogue replenishment - at least 50 pcs per week starting from September 19 (by this date, Denis should be more or less up to speed, and I think he will help with catalogues)

I need your clarification on the catalogues. If we go back to the beginning of the question, more than a year ago, you were looking for a separate employee for this amount of work with separate pay for this job. I was present at the viewing of the candidate for this scope of work. Negotiations ended in nothing, and the person declined.

Gradually, we took over these duties, and our workload increased, but the remuneration for the increased workload did not.

1. In his affidavit, Mr Rozdolovschii refers to Mr Giesh having sent him a message via Britrix24 Messenger "with a number of accusation[s] and, among other things, he mentioned that I owed money to the Company, in words to the effect of" a passage he sets out.[141] The passage is an English translation of the Russian that Ms Kozyrevitch prepared, commencing from "05.08.2022. Access to the server's analysis . . . . purchase dated 08.06.2022" that appears in the message Mr Giesh sent to Mr Rozdolovschii on 6 September 2022. Mr Rozdolovschii says that he cannot recall what else was stated in Mr Giesh's statement, but says that "upon reading the above message" he "immediately replied", and the set out an English translation of the message he sent to Mr Giesh on 12 September 2022.[142]
2. In paragraph 33(a) of the statement of claim, Mr Rozdolovschii alleges that the 12 September 2022 message conveyed the following:
   1. the Applicant was not at fault for the incorrect data that had been put in an excel sheet on or about 8 June 2022;
   2. that the Applicant had been given different and varying financial quantum's that he allegedly owes the company due to this error;
   3. that the Applicant is surprised in the amount of money that the company are saying he allegedly owes them, the Applicant has always been diligent in his data entry duties;
   4. that the Applicant believes the Respondent asking him to pay for this loss is wrong and that he is not at fault for what happened.
3. I am satisfied that the 12 September 2022 message conveyed information to the effect alleged in paragraphs (i), (ii), and (iii); I am not satisfied, however, that the 12 September 2022 message conveyed information to the effect alleged in paragraph (iv).
4. Mr Rozdolovschii made no submissions about the basis on which he alleges that the conveying of this information constituted the making of a complaint or inquiry. In Alam v National Australia Bank Limited, the Full Federal Court considered the notion of "complaint" for the purposes of s 341(1)(c) of the FW Act as follows:[143]

In the context of s 341(1)(c), the term "complaint" connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

1. I am not satisfied that the information paragraph 33(a) of the statement of claim alleges was conveyed constitutes an expression of grievance; and, for that reason I am not satisfied that paragraph 33(a) of the statement of claim pleads the exercise of a workplace right.
2. In his closing written submissions, however, Mr Rozdolovschii submits a different set of statements were conveyed by the 12 September 2022 message, these being the following:[144]

The twentieth workplace complaint and Annexure IR15 sets out complaints made by the Applicant and the Applicant submits that they include the following:

1. the Applicant complaining about being a shop manager, but yet working full-time hours as a labourer;
2. the Applicant saying that he did his job well and he was processing 2 - 6 tonnes per month;
3. the Applicant complained that two new employees of July 2022 had no manufacturing experience and even so they managed to process up to 9 tonnes of material in July and August, which was: "an incredible burden on both me and the equipment" that when he was first employed a number of representations were made to him that he would receive help in respect of electrician matters, that he would be assisted by other employees if necessary and he would generally be assisted by Mr. Giesh in his work duties;
4. that the Applicant is not reimbursed for car expenses, but Adrian is and he pays for fuel out of his own salary;
5. that equipment was breaking down;
6. that it was not necessarily the Applicant's fault that the Applicant allegedly lost $18,000.00 which was then changed to $9,000.00 then $10,000.00 and the Applicant's volume of work increased a lot and there was no reward.

1. Mr Rozdolovschii has not applied for leave to amend paragraph 33(a) of the statement of claim to include this information; and, indeed, his lawyer did not during oral address direct my attention to the fact that Mr Rozdolovschii was submitting that the Twentieth workplace complaint and inquiry constitutes complaints and inquiries that are different from those alleged in paragraph 33(a) of the statement of claim. This approach ignores what the Full Federal Court, in Monash Health v Singh has said about the importance of an applicant clearly putting a respondent on notice of a case based on contraventions of general protection provisions:[145]

(1) To assert that "a party is to be held to its pleadings" or that the "scope of the trial is to be determined by the pleadings, and only the pleadings" is misconceived. The course of the proceedings is in the control of the Court in the attainment of a just outcome. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party: Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 at [51], [55]; Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; 290 FCR 239 at [141]-[142] per Bromberg, Kerr and Wheelahan JJ; BHP Coal at [60]-[61].

(2) But allegations of contravention of the general protections provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it: Celand per Bromberg at [102], citing BHP Coal at [63]-[65]. Some precision is required so that they do not involve a "broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome" (Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]; Celand at [100]) and where the "crucial issue" is the causal relationship between the adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1.

(3) Despite ambiguity or infelicity in an applicant's pleading, however, no procedural unfairness may arise where the respondent has meaningfully engaged with the pleading in its defence and the trial proceeded in a way, by reason of the applicant's opening, the manner in which the hearing was conducted and defended, and it can reasonably be inferred that the respondent understood the applicant's case against them: BHP Coal at [65]-[77].

(4) The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of Hall at [15]-[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that "taking that action for that reason or with that intent would constitute a contravention of this Part" (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to "plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent": Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40].

(5) The nature of a general protections proceeding does not vary according to whether it is instituted before this Court or in the Federal Circuit and Family Court of Australia (FCFCoA). The fact that the objects of the FCFCoA include operating "as informally as possible" also does not change its nature. The proceeding is one for the recovery of a pecuniary penalty and thus penal in nature, such that where a case proceeds by pleadings, the rules of pleading should be applied: Sabapathy at [41]-[42].

(6) What is important is not the medium by which the allegations are made but whether the allegations are, in fact, made. Where proceedings in this Court or in the FCFCoA do not proceed by way of pleadings, what comprises the allegations may be identified by reference to any filed application or concise statement but may be supplemented in other ways, such as by making an order for pleadings, or particulars, or by statements of facts, issues and contentions, or by the written opening submissions filed in advance of the hearing so as to expose the issues: Regional Express at [139]-[142].

1. I will, however, proceed on the basis that the 12 September 2022 message conveyed only one complaint and one inquiry; and I am prepared to do so because, for reasons that will appear later, no prejudice will flow to the respondents. The complaint comprises Mr Rozdolovschii's stating that Adrian was reimbursed when he took the compressor to a shop while, and that in all the times Mr Rozdolovschii used his personal car, he had never been compensated for service or petrol. The inquiry comprises Mr Rozdolovschii's request for Mr Giesh's clarification about the catalogue.
2. I am therefore satisfied that by sending the 12 September 2022 message Mr Rozdolovschii made a workplace complaint and inquiry.

1. According to Mr Rozdolovschii, in around 27 September 2022, Mr Giesh and Mr Vazhenin approached him while Mr Rozdolovschii was working, when the following conversation occurred:[146]

Sergei Giesh: "Let's go. We need to discuss something."

I said: "Regarding what? What's the topic?"

Sergei Giesh: "Ti menya zayebal (You've fucked my brain in translation from Russian)."

I said: "Why do you talk to me like that? Everyone can hear you."

1. On entering the office, Mr Rozdolovschii observed a whiteboard with writing on it. Mr Rozdolovschii says that the whiteboard recorded all of Mr Rozdolovschii's responsibilities next to which the letter "D" was written, which signified Mr Vazhenin's first name, Denis. A photo of the whiteboard with the writing is in evidence together with an English translation as follows:[147]

Intake-D/Y

Processing - D/Y

Processing Management - Y

Preparation of samples - Y, or D if Y is not available

Analysing - Y/D

Data entry, record keeping (mills, sub-lots, lots, metal)

Status of processing - Y/D - 1 month discussion

Accounting for consumables [illegible] - D

Regular equipment maintenance / scheduled D/Y + everybody

Workshop performance optimisation - D

[illegible] equipment/workshop - D

Customer communication/merchandising - D

Customer visits - D

[illegible] (selection, photo, entering[//] - Y/D), (cutting, sampling - Y)

Liaising with CS on technical issues - D

Analysers (calibration, etc.) - D

Warehouse inventory - D/Y

Emails,FB, calls - D

1. Mr Rozdolovschii deposes at length to the conversation he says occurred at the meeting, the effect of which is as follows:[148]

(a) Mr Rozdolovschii said he will be taking notes because Mr Giesh had just sworn at him.

(b) Mr Giesh told Mr Rozdolovschii to sit down; he needed "to make a reorganisation in the company"; from now on, all Mr Rozdolovschii's duties will be performed by Mr Vazhenin; Mr Rozdolovschii's contract will not be changed, but he will be only working as a labourer.

(c) Mr Rozdolovschii said that on Mr Giesh's directives Mr Rozdolovschii demanded a lot from the employees which he should not have demanded; but now that everyone was against him, Mr Giesh wanted Mr Rozdolovschii to put him in the workshop where he will be torn apart; Mr Rozdolovschii had been a plant supervisor for a year and 9 months; and he needed a desk on the second floor.

(d) Mr Giesh said it was going to be temporary; Mr Rozdolovschii will have to teach Mr Vazhenin "how to do all of this".

(e) Mr Rozdolovschii said he had a contract and duties; but now Mr Giesh was writing on the board all of Mr Rozdolovschii's duties, but saying that Mr Vazhenin would be doing them while Mr Rozdolovschii would be responsible for everything Mr Vazhenin would be doing. Mr Rozdolovschii said he wanted these changes in writing. It was not right that Mr Rozdolovschii had been working as a labourer, with Mr Giesh saying it was temporary and that he would be a supervisor soon, yet Mr Vazhenin came, he had not worked a single day in the workshop, and Mr Giesh was telling Mr Rozdolovschii that he had to teach him everything.

(f) Mr Giesh asked why Mr Rozdolovschii was clinging to his position; Mr Giesh was the director, and he added these changes; he needed them for the company.

(g) Mr Rozdolovschii said that if Mr Giesh needed it for the company, he was required to follow "all the procedures. Give it in a written form".

(h) Mr Giesh said he needed it now; but Mr Rozdolovschii said that "[t]hose are my responsibilities". Mr Giesh said he was the director, and he got to decide who did what: "You're nobody to object me". Mr Rozdolovschii asked that Mr Giesh not talk to him like that.

(i) Mr Giesh said he would make an excel spreadsheet of newly assigned responsibilities, and will share it out in their work group chat. Mr Rozdolovschii objected because everyone would see that Mr Vazhenin will be doing Mr Rozdolovschii's job, so nobody will be following Mr Rozdolovschii's instructions.

1. According to Mr Rozdolovschii the conversation ended as follows:

I said: "The labourers are not stupid. Just openly announce to the staff what's Denis' real position and role. Why can't I do all these things? Is it because Denis is younger?"

Sergei Giesh: "I think it's better for the company."

I said: "Sergei, I have asked you before if you're going to replace me with Denis."

Sergei Giesh: "I have not promised you anything. I did not know before. This meeting is over."

1. Mr Rozdolovschii gave a near contemporaneous account of what occurred at the meeting of 27 September 2022 in the 19 October 2022 email; and I have set out that account earlier in these reasons. There are differences between what Mr Rozdolovschii deposes was said at the meeting and what in the 19 October 2022 email Mr Rozdolovschii claimed was said at the meeting. The most significant difference is that Mr Rozdolovschii did not claim in the 19 October 2022 email, as he deposes in his affidavit, that Mr Giesh said that from now on, all Mr Rozdolovschii's duties will be performed by Mr Vazhenin; Mr Rozdolovschii's contract will not be changed; but he will be only working as a labourer.
2. In evidence given under cross-examination Mr Rozdolovschii said that he took notes during the meeting.[149] An English translation of those notes is as follows:

27/09, 11:00

- Don't fuck around

- Not notice and not desu

- gas + bins

- 1 month

- Prepared a meeting with Denis, and not with me or the three of us

- Wrote on the board and discussed in front of Denis.

- Said would write to @ table, I stated I would answer my objections in writing

After the discussion:

He would have given me 3 months to drown in equipment repairs if he wanted.

1. I am not satisfied Mr Rozdolovschii prepared this note during the meeting of 27 September 2022. First, the last sentence purports to record what was said after "the discussion". Second, the note appears to describe the events that led to the meeting, not to what was said in the meeting. There is nothing to suggest that at the meeting anyone said that a meeting was prepared with Mr Vazhenin and not with Mr Rozdolovschii. Third, the first item on the handwritten note which has been translated "Don't fuck around" appears to be written in letters that are different from "Ti menya zayebal" (which Mr Rozdolovschii translated to "you've fucked my brain in"), being the words Mr Rozdolovschii says Mr Giesh stated when Mr Rozdolovschii asked what the purpose of the meeting was.
2. According to Mr Giesh, on 29 September 2022 he organised a meeting with Mr Vazhenin and Mr Rozdolovschii to discuss what processes could be improved at ARPL, what equipment would be required, what equipment would be needed, and how work distribution among staff could be improved to ensure work distribution was fair and manageable.[150] Just before the meeting Mr Giesh prepared a list on the whiteboard "of technological processes, procedures, and equipment", for Mr Vazhenin and Mr Rozdolovschii to provide input.[151] When Mr Rozdolovschii entered the room, the following conversation occurred:[152]

Iurii (yelling): "You are reassigning my duties to Denis!"

Me: "Your duties aren't being reassigned, I assure you. We are just having a meeting to try to improve processes."

I recall that it seemed impossible to speak to the Applicant as he was using offensive language and yelling loudly.

Because of this, I then said "This meeting is over."

I then ended the meeting.

1. Mr Vazhenin does not in his affidavit refer to the meeting of 29 September 2022; but he gave the following evidence under cross-examination:[153]

MR ASLANIAN: All right. Do you recall attending a meeting on 27 September with my client and Mr Giesh?

THE INTERPRETER: Yes. I remember.

MR ASLANIAN: Can you tell the court, to the best of your memory, what happened during that meeting?

THE INTERPRETER: At that meeting, Sergey was trying to - to solve the issue of how we can work more effectively and how we can divide our responsibilities between us.

MR ASLANIAN: And did Mr Giesh ever swear in that meeting?

THE INTERPRETER: As far as I remember, Iurii said that he didn't understand Sergey's intentions and - and he said that he did not want to participate in that. I don't remember exactly what words were - were said.

MR ASLANIAN: Well, sir, my question is, do you recall Mr Giesh swearing at that meeting?

THE INTERPRETER: No.

MR ASLANIAN: And do you accept that my client was upset during that meeting?

THE INTERPRETER: Maybe he was upset, but there was no reason for being upset. That was his idea. He just, sort of, made up that idea about something, and he started to argue with Sergey. But Sergey just wanted to - to discuss some work issues, and he - he didn't swear at that meeting.

MR ASLANIAN: And you have a clear recollection of that meeting?

THE INTERPRETER: Yes, quite - quite clear; yes.

1. Mr Vazhenin also gave the following evidence:[154]

MR ASLANIAN: Okay. Let's put it this way, you say that you have a clear recollection of the meeting. Tell the court now your memory of what my client said in the meeting as best you can, in summary form if you wish.

THE INTERPRETER: It started with the words - Sergey's words. He said that we came to this meeting to divide the duties between us so that our work was more productive. I - I think Iurii was saying that that is his work and he doesn't want to share it with anyone else. After that he said that he doesn't want to participate in that meeting and refused to listen to what Sergey was going to offer.

MR ASLANIAN: And do you agree with me, sir, that my client was raising an issue with Mr Giesh? Do you agree or disagree?

THE INTERPRETER: No. He was just refusing to listen and to participate in the meeting - in the meeting and to listen to Sergey's arguments. He refused to do that.

1. In evidence given under cross-examination Mr Giesh denied the purpose of the meeting was to reassign duties from Mr Rozdolovschii to Mr Vazhenin; Mr Giesh said that "[t]he purpose of the meeting [was] to discuss the procedures, processes. How to optimise, how to improve, etcetera, etcetera. How to better distribute".[155] Mr Giesh was taken to the tasks that were recorded on the whiteboard, and was asked in relation to each of them whether Mr Rozdolovschii had been performing them. Mr Giesh accepted that Mr Rozdolovschii liaised with CS on technical issues; and analysed calibration; but Mr Giesh said that Mr Rozdolovschii did not perform customer communication and merchandising, or workforce performance optimisation, or account for consumables.[156] Mr Giesh said Mr Rozdolovschii was invited to the meeting because "he was supervisor. He was involved in processing. He was responsible to all processing. That was his responsibilities [sic]".[157]
2. In the email he sent to Mr Rozdolovschii on 26 October 2022, Mr Giesh said:

(a) there was no bullying against Mr Rozdolovschii; Mr Rozdolovschii is "the head of the shop"; and Mr Giesh always emphasized to his subordinates that Mr Rozdolovschii is their boss;

(b) "no one gave reasons for bullying, I always set my subordinates to a working mood, although this is your direct responsibility", noting the Employment Contract stated that Mr Rozdolovschii must monitor the discipline of his subordinates;

(c) there was no work without pay, noting there was an agreement that where there is little work that Mr Rozdolovschii could take "time in lieu";

(d) denied he intimidated Mr Rozdolovschii with dismissal or allowed humiliation;

(e) the meeting of 27 September 2022 was a regular meeting dedicated to the optimisation of work practice; and he denied yelling at or using a profanity;

(f) "arguing with the head of the company is not part of your duties";

(g) the issue of transferring Mr Rozdolovschii's duties to Mr Vazhenin was not discussed;

(h) he had already informed Mr Rozdolovschii that he needed to include expenses associated with business trips using his car in his personal tax return, and that he needed to consult his own accountant;

(i) Mr Rozdolovschii's position had not been changed;

(j) he has not left a single call or message from Mr Rozdolovschii unanswered; and

(k) the fact that Mr Rozdolovschii received a text message from an employee "indicates that you are not coping with the function of managing employees", and he suggested that it "is necessary to find out what the conflict . . . related to, who is the initiator of the conflict, what actions you have taken to resolve the conflict, etc".

1. Due to its near contemporaneity of the event it describes, I am satisfied that the most credible evidence of what occurred at the meeting of 27 September 2022 is what Mr Rozdolovschii in the 19 October 2022 email claimed occurred, although I consider much of the evidence Mr Vazhenin gave under cross-examination, general as it was, to be credible. On the basis of this evidence, I make the following findings:

(a) Mr Giesh invited Mr Rozdolovschii to attend a meeting to discuss matters that Mr Giesh had written on a white board.

(b) Mr Rozdolovschii asked Giesh what the meeting was about, in response to which Mr Giesh lost his temper and swore. The meeting, however, proceeded.

(c) When Mr Rozdolovschii observed the information contained on the whiteboard, he formed the view that all of his duties were being assigned to Mr Vazhenin, and he expressed his disagreement with that proposal. Mr Rozdolovschii insisted that if Mr Giesh were to assign his duties to Mr Vazhenin, the workers in the Workshop would notice, and Mr Rozdolovschii would lose his authority. Mr Giesh insisted that no one in the workshop would find out anything, and Mr Rozdolovschii was persuaded that that would be so.

(d) Near the end of the meeting Mr Giesh said that he would create a table about who would perform duties Mr Rozdolovschii currently performed without changing his position under the Employment Contract. Mr Giesh, however, did not produce any such table.

Alleged conversations after meeting of 27 September 2022

1. Mr Rozdolovschii says that in "around late September to early October 2022, on at least 5 occasions, both face to face (on three occasions) and via Threema messages (on two occasions)" he "would request" Mr Giesh to "gather a meeting with the labourers as follows":[158]

I said: "Sergei, gather a meeting. Tell Bakhtiar and David that I am their supervisor. They think all my demands are groundless and unlawful. I have told them that the director wanted so. You created a situation that people do not understand whose directives to follow."

Sergey Giesh: "Go to work." Or "You're the plant supervisor."

1. Mr Giesh denies the conversations.[159]
2. I do not accept Mr Rozdolovschii's evidence. It is inconsistent with what Mr Rozdolovschii stated in the 19 October 2022 email. As I noted earlier, Mr Rozdolovschii stated that, after the meeting of 27 September 2022, he had continued to fulfil most of his duties, but communication with Mr Giesh "was carried out exclusively through Denis". Further, Mr Rozdolovschii has not produced evidence of the Threema messages he says he sent to Mr Giesh; and he provided no explanation for not providing those messages.

1. On or shortly after 3 October 2022 Mr Giesh received a letter dated 3 October 2022 from Ms Bayazitova, a chartered accountant and tax agent.[160] The letter is as follows:

Please find enclosed the financial report and company tax return for Autokat Recycling Pty Ltd for the 2022 financial year.

There is no tax payable for the financial year as the company has incurred further losses in the 2022 financial year.

The net loss for the year was ($479,640.12) in addition to the losses brought forward from the prior year of ($713,258.71) brings our net equity to ($1,192,798.83)

The operations of the company are maintained through the personal investment of the shareholders, however I would recommend implementing the below recommendations in order to ensure that the business can continue the operations in the Australian market:

The gross profit margin appears to be very small; my understanding is that the goods are sold for a price that is under the market value to earn the share of the market, however, it might be beneficial to re-negotiate the prices with the customers and suppliers. The largest expense appears to be wages paid to employees; you may need to review the job descriptions of each employee in the attempt to consolidate some positions. Overall expenses need to be reviewed and cost cutting procedures implemented, any unnecessary expenditure should be eliminated.

Please do not hesitate to contact me directly and to book in a meeting to discuss the above in detail.

1. Mr Giesh does not in his affidavit give evidence of the circumstances in which he received the letter; and in evidence given under cross-examination, Mr Giesh said he did not recall how he came to receive the letter.[161] Mr Giesh acknowledged that he did not annex to his affidavit the financial reports and tax returns to which the accountant's letter referred because he "did not decide it important to provide the documents".[162] Mr Giesh also said that he had a verbal discussion with the accountant "about that", namely, about terminating Mr Rozdolovschii's employment, but he did not give evidence of that conversation in his affidavit because he "did not need that", the letter being "the main evidence".[163]
2. In his written submissions Mr Rozdolovschii submits there is "something uncanny" about the letter; and he identifies a number of anomalies. Mr Rozdolovschii does not, however, submit that the letter is not what it purports to be, namely, a letter from a chartered accountant which expresses opinions about the financial position of ARPL. In those circumstances, it is not open to me, solely on the basis of the anomalies and curiosities Mr Rozdolovschii submits attends the letter, not to proceed on the basis that the Ms Bayazitova is what it purports to be. If Mr Rozdolovschii intended to challenge the truth or reasonableness of the opinions stated in the letter, he ought to have issued a notice to produce or subpoena about those matters. That, however, was not done.
3. In any event, whether the accountant's letter accurately reflected ARPL's financial position is not by itself important. The important question is whether Mr Giesh in fact relied on the contents of the accountant's letter in determining to dismiss Mr Rozdolovschii from his employment.

19 October 2022 - Mr Rozdolovschii reports being bullied

1. Mr Rozdolovschii deposes that on 19 October 2022 Mr Kasimov sent to Mr Rozdolovschii a one-word message stating "Bastard". Later that day Mr Rozdolovschii exchanged messages with Mr Giesh as follows:[164]

I wrote: "My question-I am asking you to organise a meeting regarding my situation in the workshop ASAP. Today I have been bullied and abused which affects negatively my duty operations as a workshop manager. Notify me about the date and time of the online meeting in case you are not in Sydney. Thank you."

Sergei Giesh: "What happened exactly?"

I wrote: "Too long to write. Let's discuss all in detail at the meeting. Thanks."

Sergei Giesh: "Please, write down a detailed description of the incidents and send me via email.

1. In the statement of claim Mr Rozdolovschii alleges that the messages he sent constituted the Twenty-first workplace complaint and inquiry;[165] but in his written submissions Mr Rozdolovschii says he no longer relies on the twenty first workplace complaint as a reason for ARPL's termination of his employment.[166]

Twenty-second workplace complaint - the 19 October 2022 email

1. On 19 October 2022 Mr Rozdolovschii sent to Mr Giesh the 19 October 2022 email. Mr Rozdolovschii alleges that the email contains a number of complaints, and that these constitute the Twenty-second workplace complaint and inquiry. As I have already noted, Mr Giesh responded by email sent on 26 October 2022.
2. I am satisfied that by sending the 19 October 2022 email to Mr Giesh, Mr Rozdolovschii expressed the following grievances:

(a) Mr Rozdolovschii was under psychological pressure and stress caused by his being bullied in the Workshop by other employees.

(b) Mr Giesh created the conditions for the bullying Mr Rozdolovschii experienced.

(c) Mr Rozdolovschii had worked 2-3 hours overtime without pay every day with Mr Giesh's "connivance".

(d) Mr Giesh did not, as he stated in the meeting of 27 September 2022 he would do, provide to Mr Rozdolovschii a table identifying the duties he and others would perform.

(e) The creation of Mr Vazhenin's role had undermined Mr Rozdolovschii's reputation in the Workshop.

(f) An employee had sent Mr Rozdolovschii an offensive text message.

1. I am also satisfied the expression of grievances related to Mr Rozdolovschii's employment and by making them, therefore, Mr Rozdolovschii exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.

Complaint about Mr Giesh disclosing complaint Mr Rozdolovschii made

1. Mr Rozdolovschii says that between 20 and 27 October 2022, "on one occasion", Mr Kasimov approached Mr Rozdolovschii and said: "I know about your complaint. I know you mentioned me. The director doesn't give a shit about you".[167] Mr Rozdolovschii says he did not reply to Mr Kasimov; but this made Mr Rozdolovschii realise that Mr Giesh "had breached confidentiality" by informing Mr Kasimov "regarding my complaint regarding him".[168] Mr Rozdolovschii further says that from 24 October to 27 October 2022, "around 2 days" after his conversation with Mr Kasimov, while "passing" Mr Giesh in the car park, he said to Mr Giesh: "My letter was confidential and yet Bakhtiar knows about it". Mr Giesh did not reply to Mr Rozdolovschii's remark, but continued walking.[169] Mr Giesh denies this part of Mr Rozdolovschii's affidavit.
2. Although the statement of claim alleges Mr Kasimov told Mr Rozdolovschii of the matters Mr Rozdolovschii deposes Mr Kasimov told him, the statement of claim does not allege that Mr Rozdolovschii said to Mr Giesh the words he deposes he said to him; and is, therefore, not alleged to be a workplace complaint and inquiry. In any event, Mr Rozdolovschii's evidence is implausible, given the response Mr Giesh gave in the 26 October 2022 email to the complaint Mr Rozdolovschii made in the 22 October 2022 email about Mr Kasimov. Mr Giesh told Mr Rozdolovschii that it was necessary for Mr Rozdolovschii "to find out what the conflict . . . related to, who is the initiator of the conflict, what actions you have taken to resolve the conflict, etc". This shows that Mr Giesh expected Mr Rozdolovschii to deal with Mr Kasimov and, therefore, renders improbable that Mr Giesh discussed the matter with Mr Kasimov.

1. Mr Rozdolovschii says that on or about 28 October 2022 Mr Giesh approached him and words to the following effect were spoken:[170]

Sergei Giesh: "We need to talk"

I said: "My lower back really hurts a lot."

Sergei Giesh: "Go, finish the job first."

1. Mr Rozdolovschii says that, after this conversation, he worked for another hour at the workshop, performing labourer duties on the crusher.[171]
2. Mr Giesh denies the conversation; and he exhibits CCTV footage which shows Mr Rozdolovschii hopping down from a forklift; running to help a truck driver, walking, and carrying an empty pallet.[172]
3. I do not accept Mr Rozdolovschii's evidence because it is implausible. If, as Mr Rozdolovschii deposes, Mr Giesh had informed Mr Rozdolovschii that they needed to talk, Mr Giesh would not have responded to Mr Rozdolovschii's statement that his lower back really hurts by directing him to do the job first, being a direction that would have been inconsistent with Mr Giesh's having indicated that he and Mr Rozdolovschii had to talk. I therefore do not accept Mr Rozdolovschii made the twenty-third workplace complaint and inquiry.

1. According to Mr Rozdolovschii, on 28 October 2022 he went to the office where Mr Giesh and Mr Vazhenin were present. Mr Rozdolovschii deposes as follows:[173]

I sat down at the round table. Sergei Giesh was sitting across from me and Denis Vajenin [sic] was standing on my left and Sergei Giesh read my termination letter and said words to the effect of:

Sergei Giesh: "I have had an audit in the Sydney office, I am bankrupt, you're made redundant, because I am bankrupt."

I was astonished and silently looked at Sergei Giesh and he read my termination letter again and said words to the effect of: "You're made redundant. You'll be paid $9,000.00, including all your payouts."

Immediately thereafter, Sergei Giesh handed me the termination letter and following conversation occurred with words to the effect of:

I said: "It's illegal. I am going to claim a workers' comp for my back and psychological injury."

Sergei Giesh: "Collect your stuff. Give in your keys."

I said: "I will."

Sergei Giesh: "Do it in my presence.'

I said: "There's a lot of private information in my work laptop. Can I delete it in your presence?"

Sergei Giesh (yelling): "It's the company property. Don't touch it. It's the company property."

Sergei then grabbed some papers regarding the grinding from my hands.

The above conversation lasted around 5 minutes. Immediately thereafter, Sergei Giesh, Denis Vajenin [sic] and I went downstairs where I collected my backpack and all other belongings and Sergei Giesh tried to forcefully put the termination letter into my backpack and the following conversation occurred with words to the effect of;

I said: "Keep your hands off."

Sergei Giesh: "I am just giving you the letter."

I said: "I do not need that illegal paper."

Sergei Giesh: "You already have it in your email."

. . . Denis turned to me and said words to the effect of: "Thank you, Iura."

Upon exiting the gate, I remembered that I had not gathered some of my tools, and I returned and from near the door, I shouted out loud words to the effect of:

I said: "Denis, I will take my hammer drill."

Denis: "Yes, of course."

1. Mr Giesh has given the following account of the meeting:[174]

On 28 October 2022 at around 3:00pm, I held a termination meeting with the Applicant. Denis was present at the meeting.

I handed the Applicant a termination letter dated 28 October 2022 . . .

I recall the conversation at the meeting went as follows:

Me: "Autokat is currently operating at a loss not made any money this year. Because of this, we have had to make some decisions to cut costs, Unfortunately your employment is being terminated because of redundancy."

Iurii (in loud/aggressive tone) "I do not accept this! I am going to sue you and the company! I am going to create cases for bullying and get $600,000 from the company!"

Me: "It wasn't easy made decision, but we have to apply such measures."

Iurii "You will regret this, you will know soon what I'm going to do"

Me: "Iurii please calm down"

Iurii: "I don't want to hear anything, I am not taking this termination letter."

The Applicant then stormed out of the meeting room and moved downstairs. He took the company laptop with him.

I went downstairs and said to the Applicant, "please leave the company laptop on the desk."

The Applicant then packed up his belongings and left Autokat.

1. Mr Giesh denies he told Mr Rozdolovschii he is bankrupt, or that he was having an audit; and Mr Giesh denies swearing or that he grabbed papers from Mr Rozdolovschii.
2. On 28 October 2022 Mr Giesh emailed the Termination Letter to Mr Rozdolovschii, which was as follows:

Autokat Recycling Pty Ltd ACN 683 349 461 (the Company) is hereby terminating your employment by way of redundancy on the basis of insolvency. The Company financial position has recently been reviewed and professional advice sought. Such advice included recommendations related to costs cutting measures. This decision is not a reflection on your performance.

Due to your employment ending, you will be entitled to the payment of $9230.76, which will be paid to you in the ordinary course, together with your accrued entitlements, during the next pay cycle.

Affected employees and their partners have immediate access to tailored employment services under the Early Access initiative, prior to becoming eligible for income support. For information about support services available to you, please feel free to visit website link: Next steps if you lose your job at workforceaustralia.gov.au/individuals/coaching/assistance/retrenched-workers. In addition, the 'What's Next' website provides an online self-help resource for affected employees and employers. This support is provided under Workforce Australia Services. For more information, visit whatsnext.dese.gov.au.

Please contact me if you wish to obtain a reference in the future.

CASE AGAINST ARPL BASED ON s 340(1) OF THE FW ACT

A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

1. Three matters must be alleged and proved in a cause of action based on a person's having allegedly contravened s 340(1) of the FW Act. First, the person must have taken "adverse action against another person". That expression is defined in a table contained in s 342(1) of the FW Act, which includes an employer dismissing an employee.
2. The second matter that must be alleged is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a "workplace right". That expression is defined in s 341(1) of the FW Act, which relevantly provides:

A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) . . . .

(ii) if the person is an employee - in relation to his or her employment.

1. I have set out earlier in these reasons the meaning of "complaint" and "inquiry". The expression "workplace law" is defined in s 12 to mean (among other things) the FW Act, or "any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)".
2. In Qantas Airways Limited v Transport Workers Union of Australia the High Court said that the words "is able to" in s 341(1)(b) and (c), "while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom", these being the powers and freedoms specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).[175] In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression "in relation to" as used in s 341(1)(c)(ii) of the FW Act, and concluded that a person will make a complaint or inquiry "in relation to" his or her employment if the complaint is about his or her employment rights or obligations, or "about a subject that may prejudice the person in his or her employment".[176]
3. The third matter that must be alleged in a cause of action based on an alleged contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason, namely, the existence of, or exercise of, or the failure to exercise, a workplace right. That requirement arises from the presence of the word "because": s 340(1) of the FW Act prohibits a person from taking adverse action "because" a person has a "workplace right", or "because" the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right (proscribed reasons). Further, where it is alleged that a proscribed reason is one of a number of reasons for which the employer took adverse action, the proscribed reason must be "a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons",[177] or must be an "operative or immediate reason for an action".[178]
4. An important aspect of determining whether in any given case a person has taken adverse action for a proscribed reason, that is, "because" of one or more of the matters specified in s 340(1) of the FW Act, is s 361(1) of that Act, which provides:

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

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

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

1. There are, however, procedural requirements that must be satisfied before s 361(1) of the FW Act is engaged; and these were identified by the Full Federal Court in Australian Building and Construction Commissioner v Hall:[179]

Before this presumption operates . . . two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word "particular" in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: "2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial". See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.

It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions . . .

1. The authorities have considered the means by which a person who, by the operation of s 361(1) of the FW Act, is taken to have taken adverse action for the particular reason for which it is alleged he or she took adverse action unless "the person proves otherwise". In Board of Bendigo Regional Institute of Technical and Further Education v Barclay French CJ and Crennan J said (emphasis added):[180]

[44] ... The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

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

1. Shariff J recently summarised the relevant principles in Laing O'Rourke Australia Management Services Pty Ltd v Haley (emphasis in original):[181]

It follows from the combination of the reasons in Barclay, Cummins and Qantas Airways 1 that:

(a) direct and credible testimony from the decision-maker (or decision-makers) is capable of discharging the reverse onus in s 361 and it will usually be extremely difficult to discharge the onus absent such evidence;

(b) however, direct testimony from that person (or persons) is not a necessary pre-condition for the discharge of the statutory presumption;

(c) in any event, whether the reverse onus is discharged must be considered not merely by reference to the testimony of the purported decision-maker (or decision-makers), but by reference to all of the facts and circumstances relevant to whether the alleged reason was a reason which actuated the action in question;

(d) the finding that the onus is discharged need not be based solely on the evidence of the decision-maker (or decision-makers) or on the evidence called or otherwise put before the court by a respondent.

1. In his statement of claim Mr Rozdolovschii alleges ARPL took adverse action on five occasions. I have found that ARPL did not take what the statement of claim identifies as the First, Second, Third, and Fourth adverse actions. There is no question, however, that ARPL's termination of Mr Rozdolovschii's employment constituted ARPL's taking adverse action against him.

Did Mr Rozdolovschii exercise workplace rights?

1. I have not accepted that Mr Rozdolovschii made the Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Eighteenth, Nineteenth, or Twenty-third workplace complaints and inquiries. I have, however, found that Mr Rozdolovschii made:

(a) the Seventeenth workplace complaint and inquiry, by sending the emails of 16 and 17 August 2022 to Mr Giesh by which Mr Rozdolovschii expressed the following grievances (First established exercise of workplace rights):

(i) in the telephone conversation of 15 August 2022 Mr Giesh had falsely accused Mr Rozdolovschii that he told Mr Giesh he had entered data when he had not;

(ii) the tone with which Mr Giesh accused Mr Rozdolovschii;

(iii) the telephone conversation of 15 August 2022 not being the first occasion on which Mr Giesh had spoken to Mr Rozdolovschii in an unprofessional and accusative manner;

(b) the Twentieth workplace right and inquiry, by sending the 12 September 2022 message by which Mr Rozdolovschii expressed the grievance that he had never been reimbursed for business use of his personal car (Second established exercise of workplace rights); and

(c) the Twenty-Second workplace complaint and inquiry, by sending the 19 October 2022 email by which Mr Rozdolovschii expressed the following grievances (Third established exercise of workplace rights):

(i) Mr Rozdolovschii was under psychological pressure and stress caused by his being bullied in the Workshop by other employees;

(ii) Mr Giesh created the conditions for the bullying Mr Rozdolovschii experienced;

(iii) Mr Rozdolovschii had worked 2-3 hours overtime without pay every day with Mr Giesh's "connivance";

(iv) Mr Giesh did not, as he stated in the meeting of 27 September 2022 he would do, provide to Mr Rozdolovschii a table identifying the duties he and others would perform;

(v) the creation of Mr Vazhenin's role had undermined Mr Rozdolovschii's reputation in the Workshop; and

(vi) an employee had sent Mr Rozdolovschii an offensive text message.

1. To the extent he expressed these three sets of grievances, Mr Rozdolovschii exercised workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act on the occasions on which he expressed them.

Did Mr Rozdolovschii have a right under s 352 of the FW Act?

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

1. By not attending work on 17 August 2022 Mr Rozdolovschii could be said to have had a right (352 right) that adverse action could not have been taken against him because he did not attend work on that day.

Did Mr Rozdolovschii have a protected attribute?

1. In paragraph 49 of the statement of claim, Mr Rozdolovschii alleges he had a back injury, aggravation of said back injury, and a jaw injury; and he alleges that this constituted a "disability" for the purposes of s 351(1). Mr Rozdolovschii, however, has identified no medical evidence in support of that allegation, and he made no submissions as to how a back injury, aggravation of a back injury, or a jaw injury is a "disability". I am, therefore, not satisfied that these alleged conditions constitute a "disability" for the purposes of s 351(1) of the FW Act.

Did ARPL terminate Mr Rozdolovschii's employment "because" he exercised workplace rights and a 352 right, and because he had protected attributes?

1. The first question to consider is whether Mr Rozdolovschii has satisfied the procedural requirements for engaging s 361(1) of the FW Act. That requires me, first, to refer to paragraphs 54 and 55 of the statement of claim, which are as follows:

54. By reason of the conduct pleaded as the Dismissal Adverse Action:

1. The First Respondent took adverse action against the Applicant for the purposes of s.340 s.351 and s.352 of the FWA.

Particulars

1. the conduct amounted to a dismissal or a course of conduct that amounted to dismissal;

2. see item 1 of the table in s.342(1) of the FWA.

3. a substantial and operative reason for the adverse action was the Applicant exercising his workplace rights, his temporary absence of work and protected attributes pleaded in paragraphs 45 to 49;

4. the First Respondent contravened s.340, s 351 and s 352 of the FWA.

55. The Applicant relies on s.360 and s.361 of the FWA.

1. The expression "temporary absence of work" is a reference to paragraph 30.a of the statement of claim, which alleges that on 17 August 2022 Mr Rozdolovschii was absent from work on the basis of an illness which gave rise to a 352 right; and the words "protected attributes" are a reference to paragraph 49 of the statement of claim, which alleges that by Mr Rozdolovschii having the back injury, aggravation of back injury, and jaw injury, Mr Rozdolovschii had a disability within the meaning of s 351(1) of the FW Act. The words "exercising his workplace rights" in paragraph 54.b of the statement of claim is a reference to the allegation made in paragraph 47 of the statement of claim that the applicant exercised workplace rights within the meaning of s 341(1)(c)(ii) by making "the second, third, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-first, twenty-second, twenty-third and twenty-fourth workplace complaints and inquiries".
2. Paragraph 54.b. of the statement of claim, therefore, alleges that on 28 October 2022 ARPL terminated Mr Rozdolovschii's employment for three classes of reasons: first, because on 17 August 2022 Mr Rozdolovschii was temporarily absent from work for one day; second, because Mr Rozdolovschii injured his back, he aggravated his back injury, and in July 2022 he suffered a jaw injury; and third, because Mr Rozdolovschii made 24 classes of workplace complaints and inquiries. As I noted earlier in these reasons, however, the statement of claim in fact alleges Mr Rozdolovschii exercised his workplace rights on at least 188 occasions. Thus, paragraph 54.b. of the statement of claim in effect alleges in one rolled up allegation that ARPL terminated Mr Rozdolovschii's employment for three classes of reasons, one class of which is alleged to comprise of the exercise of workplace rights on at least 188 occasions.
3. Paragraph 54.b. of the statement of claim, however, cannot reasonably be characterised as an allegation that ARPL had taken action, namely, the termination of Mr Rozdolovschii's employment, "for a particular reason" within the meaning of s 361(1), as construed by the Full Federal Court in Hall. It is in effect an allegation that ARPL terminated Mr Rozdolovschii's employment for 192 reasons, these being the sum of each of the 188 occasions the statement of claim alleges Mr Rozdolovschii exercised his workplace rights, Mr Rozdolovschii's being temporarily absent from work for one day due to injury, and the three protected attributes. I am therefore not satisfied that paragraphs 54 and 55 of the statement of claim engaged s 361(1) of the FW Act. ARPL, did not come under an obligation to prove "otherwise", that is, that ARPL did not terminate Mr Rozdolovschii's employment because Mr Rozdolovschii exercised workplace rights on 188 occasions, or because Mr Rozdolovschii had protected attributes, or because he had a 352 right.
4. In any event, Mr Rozdolovschii presented his case on the assumption that his burden extended no further than to allege and prove that he exercised his workplace rights on at least one of the 188 occasions the statement of claim alleges he did; or that he possessed the 352 right, or that he possessed one of the three alleged protected attributes. Once he satisfied that burden, Mr Rozdolovschii assumed, s 361(1) would apply to cast the burden on ARPL to prove otherwise. Accordingly, on Mr Rozdolovschii's approach, if ARPL were to fail to prove it terminated Mr Rozdolovschii's employment for the reasons Mr Giesh gave in his affidavit, ARPL will be presumed to have terminated Mr Rozdolovschii's employment for whatever workplace right the Court would find Mr Rozdolovschii exercised, or for the 352 reason, or for Mr Rozdolovschii's having any one or more of the three alleged protected attributes, assuming the Court were to find Mr Rozdolovschii had such attributes.
5. That this is Mr Rozdolovschii's approach is apparent in the second and third paragraphs of his closing written submissions (emphasis added):

The applicant will submit that he has exercised workplace rights by making complaints and inquiries in relation to his employment and therefore, the reverse onus in respect of the First Respondent discharging its onus and having a positive case to prove to the Court that he did not take the dismissal adverse action for a prohibited reason.

Prima-facie, the Applicant submits that the First Respondent has failed in discharging the onus, particularly where its chief and only reason for dismissal is financial reasons and yet, the Second Respondent who is the Director of the First Respondent is now the Director of another company, which undertakes the same work as Autokat, at the same location with the same equipment.

1. This approach is reflected even more clearly at the end of Mr Rozdolovschii's written submissions (emphasis added):[182]

The importance in which a date in which the decision was made to terminate, distinct from when the termination actually happened is important because the Applicant maintains that the Court can consider all of the remaining pleaded workplace complaints as possibly being reasons for the termination and not for example, complaints on which the evidence finds post-date when the decision was made. The Applicant submits that the Court should make its determination on the basis that the decision was made on 28 October and the decision was made to terminate the Applicant's employment on 28 October 2022.

1. The consequence of this approach is that, by the time he made his closing submissions, Mr Rozdolovschii did not identify any reason or reasons he alleged or submitted constituted the particular reason or reasons for ARPL terminating Mr Rozdolovschii's employment. He left it to the Court to determine for which of the many reasons the statement alleged ARPL terminated Mr Rozdolovschii's employment ARPL in fact decided to terminate Mr Rozdolovschii's employment. Mr Rozdolovschii, therefore, has not satisfied the first of the two conditions for the application of s 361(1). That means there is no particular reason or reasons for the purposes of s 361(1) for which Mr Rozdolovschii alleges ARPL decided to terminate Mr Rozdolovschii's employment, which in turn means there is no alleged particular reason or reasons in relation to which ARPL could prove otherwise. There is therefore no alleged reason or reasons for which it can be presumed ARPL terminated Mr Rozdolovschii employment. In short, s 361(1) of the FW Act has not been engaged.
2. Given that s 361(1) of the FW Act has not been engaged, the burden lies on Mr Rozdolovschii to prove each of the elements that would constitute a contravention by ARPL of s 340(1) of the FW Act. Mr Rozdolovschii, however, has not assumed any such burden. As I have noted, Mr Rozdolovschii goes no further than alleging and seeking to prove that Mr Rozdolovschii exercised workplace rights on 188 occasions, Mr Rozdolovschii possessed the 352 right, and he possessed the three protected attributes. Mr Rozdolovschii has left it to the Court to determine, if it does not accept Mr Giesh's evidence concerning the reasons for which ARPL terminated Mr Rozdolovschii's employment, which of these matters constituted the reasons for which ARPL terminated Mr Rozdolovschii's employment.
3. For these reasons, Mr Rozdolovschii has not proved that ARPL terminated Mr Rozdolovschii's employment for the reasons, or for reasons that included as a substantial and operative factor those workplace rights I have found Mr Rozdolovschii exercised, namely, the First, Second, and Third established exercise of workplace rights, or because Mr Rozdolovschii had the 352 right, or because Mr Rozdolovschii possessed the three alleged protected attributes (assuming, contrary to what I have found, Mr Rozdolovschii possessed those attributes). I would have arrived at the same conclusion in relation to any other alleged exercise of workplace rights I would have found Mr Rozdolovschii exercised.

Did ARPL terminate Mr Rozdolovschii's employment for the reasons Mr Giesh gave in his affidavit?

1. Given my conclusions in the previous section, it is unnecessary to consider whether I should accept the evidence Mr Giesh gave in his affidavit about the reasons for which he says ARPL terminated Mr Rozdolovschii's employment. I will nevertheless consider that question, and the consequences that flow from the answer I give.

1. In his affidavit Mr Giesh deposed that, on receiving the letter from Ms Bayazitova, Mr Giesh's attention was drawn to that part of the letter which stated that ARPL's largest expense appeared to be wages paid to employees; and that ARPL "may need to review the job description of each employee in the attempt to consolidate some positions". Mr Giesh says he considered that advice, and decided that ARPL needed to restructure its business, in particular its staffing levels. Mr Giesh says ARPL's business declined primarily due to "major . . . significant drop in the price of" PGMs, including platinum, palladium, and rhodium. The decision was then made to reduce costs. The costs reduction process included, but was not limited to, reducing the transportation cost of materials; reducing commissions; reducing the costs of day-to-day expenses in the business, and the termination of Mr Rozdolovschii's employment. Mr Giesh further says that, following ARPL's termination of Mr Rozdolovschii's employment, it continued to suffer losses, which led to its making redundant Mr Vazhenin on 15 September 2023, and Mr Klymuk on 22 September 2023.[183] ARPL ceased trading on 7 August 2023.[184]
2. Later in his affidavit Mr Giesh deposed as follows:[185]

On 3 October 2022, a few weeks prior to the Applicant being made redundant, I received correspondence from my accountant notifying me of the significant economic loss suffered by Autokat in the 2022 financial year. Because of this, I decided that Autokat could no longer afford the Applicant's wages.

The reason for terminating the Applicant was due to the precarious financial position of Autokat. It had nothing to do with his alleged complaints made or his performance.

The reason for terminating the Applicant was due to the precarious financial position of Autokat. It had nothing to do with his alleged complaints made or his performance.

As I have discussed in this Affidavit, Autokat failed as a business primarily due to plummeting prices of Platinum Group Metals, which meant that Autokat's suppliers stopped supplying the necessary materials to Autokat.

Now, all of Autokat's operations have stopped, all employees have been terminated and the processing plant has been dismantled.

The Applicant was the first employee to be terminated, however I terminated all other employees of Autokat shortly after, also on account of redundancy.

I deny that the Applicant was terminated for any reason other than financial reasons.

1. Mr Giesh was cross-examined about a number of matters relevant to his decision to terminate Mr Rozdolovschii's employment. First, Mr Giesh was cross-examined about the creation of a business conducted by Evo Metals Pty Ltd (EMPL). Mr Giesh accepted that EMPL basically conducted the same type of business as ARPL conducted,[186] that it began to trade in February of 2024;[187] that it operates from the same location from which ARPL operated;[188] and it used the same equipment as ARPL used in its business.[189] Second, Mr Giesh was cross-examined about the employment of Mr Vazhenin. Mr Giesh did not accept that ARPL employed Mr Vazhenin, not as a factory worker, but in a much more senior position;[190] he accepted that the duties of Mr Vazhenin specified in his contract of employment were similar to those specified in Mr Rozdolovschii's contract,[191] but Mr Giesh did not accept that they were described similarly because he intended they be similar.[192] Third, Mr Giesh was asked why he decided to employ Mr Vazhenin; and he gave the following evidence:[193]

MR ASLANIAN: Okay. Yes. So I want to put to you that the duties you allocated to my client are almost identical to the duties you allocated to Mr Vazhenin. Do you agree or disagree?‑‑‑I listed - so, let's divide this question. The list of responsibilities listed in the contract, and actual responsibilities which he was doing.

Well ‑ ‑ ‑?‑‑‑In fact.

‑ ‑ ‑ my question is the duties you allocated in the contract?‑‑‑Allocated in the contract?

Yes. They're almost identical?‑‑‑Yes they're similar. In contract, they're similar.

All right. And they were similar because that is what you intended them to be?‑‑‑No.

Correct?‑‑‑No.

Then why did you do it?‑‑‑Because Lurii always was complaining last time he was since - can't remember what time, complaining on - on work load. And I put intentionally that just in case we would need to divide that responsibilities between more people or delegate the responsibilities of Lurii to someone else which, actually, we discussed on the meeting.

So you accept that my client complained to you about work load. Correct?‑‑‑Not work load - like, complained but, possibly the work load would increase and that was the reason.

Sir, you just gave evidence that you did this because my client complained about work load. I put that to you again, and you've changed your mind?‑‑‑Well, let me say in another way. Possibly. Possibly need to give help with work load to Lurii. And that was reason to share his responsibilities - not just - to give him help, in other words, in his responsibilities

1. The following was put to Mr Giesh:[194]

. . . . my client was complaining to you; you wanted him out; you employed a new worker; you put in the contract that that new worker reports to you and not to my client?‑‑‑No.

And the truth is you were planning to terminate my client from that point; correct?‑‑‑No.

1. Fourth, Mr Giesh was cross-examined about the circumstances in which he received the letter from Ms Bayazitova, whether he had conversations with Ms Bayazitova about its contents, and why Mr Giesh did not include in his evidence the financial statements and tax return Ms Bayazitova identified in her letter, and the extent of his knowledge of the matters stated in that letter;[195] not having given evidence of cost-cutting measures he had taken other than terminating Mr Rozdolovschii's employment;[196] and whether Mr Giesh discussed with ARPL's investors his decision to terminate Mr Rozdolovschii's employment.[197]

1. As I have noted, Mr Rozdolovschii submits that the date for determining the reasons for which ARPL terminated Mr Rozdolovschii's employment is 28 October 2022, being the date on which he submits ARPL decided to terminate Mr Rozdolovschii's employment. Mr Rozdolovschii further submits there is "significant evidence in both the affidavit material and at trial that goes to [ARPL] not discharging the onus it has";[198] and Mr Rozdolovschii identifies 21 matters to support that submission. Mr Rozdolovschii submits, among other things, that:

(a) Mr Giesh gave no evidence of any conversation he had with the accountant, Ms Bayazitova;

(b) Mr Giesh could not provide a date in his mind when he decided to terminate Mr Rozdolovschii's employment;

(c) Mr Giesh did not provide the actual financial reports and the company tax return for the 2022 financial year which, if produced, would well and truly have proved the alleged financial losses of ARPL;

(d) Mr Giesh had employed two new employees, one in July 2022, and another on 5 September 2022, which was inconsistent with ARPL having financial losses;

(e) Mr Giesh did not explain how the financial losses occurred;

(f) the respondents failed to provide affidavits from "the relevant individuals" (which I understand includes Ms Bayazitova);

(g) Mr Giesh could not recall how he received Ms Bayazitova's letter;

(h) Mr Giesh did not provide evidence of any steps he took to consider whether other employees should be made redundant, and what considerations, if any, he took into account in choosing that Mr Rozdolovschii be made redundant;

(i) Mr Giesh was unable to reconcile the reasons for which he says ARPL decided to terminate Mr Rozdolovschii's employment with the fact that it cost ARPL more money to make Mr Rozdolovschii redundant than any other worker because of the significant redundancy pay and notice;

(j) although ARPL's business was ostensibly making substantial losses, Mr Giesh gave evidence that he believed the business could service others, he was on business trips generating sales, and employing new employees;

(k) the close temporal connection between the meeting of 27 September 2022 and the date of Ms Bayazitova's letter;

(l) the close temporal connection between the complaints Mr Rozdolovschii made in the 19 October 2022 email and ARPL's decision to terminate Mr Rozdolovschii's employment on 28 October 2022; and

(m) the close temporal connection between ARPL's employment of Mr Vazhenin and 28 October 2022, being the date on which ARPL terminated Mr Rozdolovschii's employment.

1. In their counsel's written submissions, the respondents submit as follows:[199]

[I]n respect of the Termination Adverse Action, the reason for the termination of the Applicant was that the First Respondent was in financial difficulty (which is supported by correspondence and advice from an accountant) and the decision was made to cut costs, being the most expensive employee, the Applicant was the first to go. The First Respondent no longer trades, there are no employees, and it has sold all its assets and handed over the lease of the premises to another company.

1. Mr Rozdolovschii directed his cross-examination of Mr Giesh, and his submissions, to the evidence Mr Giesh gave in his affidavit about the reasons for which he says he decided that ARPL should terminate Mr Rozdolovschii's employment. That, however, is not the only evidence, and is not the most directly relevant item of evidence of the reasons for which ARPL decided to terminate Mr Rozdolovschii's employment. The most direct evidence is the reasons ARPL stated in the Termination Letter, namely, that ARPL was terminating Mr Rozdolovschii "by way of redundancy on the basis of insolvency". Mr Giesh was not cross-examined about what he understood those words to mean in relation to Mr Rozdolovschii, or whether he believed them to be true as they applied to Mr Rozdolovschii. Their intended meaning, however, is readily ascertainable from the evidence.
2. The evidence reveals that the duties for which ARPL employed Mr Vazhenin were substantially the same as the duties for which ARPL employed Mr Rozdolovschii to perform. Mr Rozdolovschii believed that to be the case by the time he attended the meeting of 27 September 2022, and he complained to Mr Giesh about it. Given that the duties of Mr Rozdolovschii and Mr Vazhenin substantially overlapped, it would have been accurate to describe, as the Termination Letter described, the termination of Mr Rozdolovschii's employment as "redundancy", because the duties Mr Rozdolovschii's had been employed to perform were the duties for which Mr Vazhenin was employed to perform; and, for that reason, ARPL did not require Mr Rozdolovschii to perform duties that could be performed by Mr Vazhenin.
3. Next, there is the fact that in the Termination Letter the word "redundancy" is followed by the words "on the basis of insolvency". I find that these words were intended to be a reference to the contents of the letter dated 3 October 2022 Mr Giesh received from Ms Bayazitova. The letter reported ARPL suffered substantial trading losses of $479,640.12 and $713,258.71 for the 2022 and 2021 financial years respectively; and it also stated that the operations of ARPL were maintained through the personal investment of ARPL's shareholders. More precisely, the letter reported that, but for the continuing support of the shareholders, ARPL was insolvent.
4. Mr Rozdolovschii submits Ms Bayazitova's letter is not evidence of the truth of the opinions and facts expressed in the letter. There are two difficulties with that submission. First, Mr Rozdolovschii does not submit the letter is not what it purports to be. For that reason, Ms Bayazitova's letter is evidence of the truth of the opinions and states recorded in the letter, namely, that ARPL had made significant losses in the past two financial years, and that "the operations of the company are maintained through the personal investment of the shareholders". Second, it was not put to Mr Giesh that he did not believe in the truth of the statements and opinions contained in Ms Bayazitova's letter.
5. The position, then, is that when Mr Giesh provided the Termination Letter to Mr Rozdolovschii, it was correct to state, as the Termination Letter stated, that the dismissal of Mr Rozdolovschii was a redundancy, because Mr Rozdolovschii performed duties that were substantially the same as the duties Mr Vazhenin was employed to perform. And it was also accurate to state, as the Termination Letter stated, that ARPL was insolvent because Ms Bayazitova's letter contained opinions which revealed that ARPL would be insolvent unless its shareholders continued to support it. Further, it is the case that by terminating Mr Rozdolovschii from his employment, the costs to ARPL would be reduced by the amount of Mr Rozdolovschii's wages (less statutory payments on termination), and the financial position of ARPL would correspondingly be better, should its shareholders have continued to support it. In these circumstances, it is open to find that ARPL did terminate Mr Rozdolovschii's employment for the reasons stated in the letter, namely, because the tasks Mr Rozdolovschii was employed to perform were redundant, given some other person had been engaged to perform them, and ARPL was trading at a loss which meant that it could not or at least ought not employ two persons who perform the same duties.
6. It would not be correct, however, to find that the operative reason for which ARPL terminated Mr Rozdolovschii's employment was that Mr Rozdolovschii's role was redundant, and that ARPL's solvency depended on the continued support of its shareholders; and that is because such finding would not explain how it came to be that Mr Rozdolovschii was in the position where he could accurately have been considered to be redundant, so that his employment could truthfully have been terminated because he was redundant; and why it was Mr Rozdolovschii, rather than Mr Vazhenin, the employee who performed substantially the same functions as Mr Rozdolovschii was performing, whose employment was terminated on the ground of redundancy.
7. The answer the evidence suggests it is open to give to these questions, and I find, is that by 5 September 2022 Mr Giesh had decided to terminate Mr Rozdolovschii's employment, but he did not immediately implement that decision because Mr Vazhenin was to learn how to perform the duties for which he was employed, being duties that were substantially similar to those Mr Rozdolovschii performed; and being duties which, at least in large measure, Mr Rozdolovschii was to teach Mr Vazhenin to perform. Mr Giesh's having made that decision, but not communicating it to Mr Rozdolovschii's, gave rise to the circumstances that led to the grievances that Mr Rozdolovschii expressed at the meeting of 27 September 2022, and in the 19 October 2022 email. On this view, therefore, ARPL did not decide to terminate Mr Rozdolovschii's employment on 28 October 2022. What Mr Giesh did on 28 October 2022 by giving to Mr Rozdolovschii the Termination Letter was to implement the decision Mr Giesh made by 5 September 2022. That means that I do not accept the evidence Mr Giesh gave in his affidavit that he decided to terminate Mr Rozdolovschii's employment after he received Ms Bayazitova's letter dated 3 October 2022.
8. As I have already noted, it was put to Mr Giesh in cross-examination that Mr Rozdolovschii had been "complaining to you"; that Mr Giesh "wanted [Mr Rozdolovschii] out"; Mr Giesh "employed a new worker", Mr Vazhenin, who "reports to [Mr Giesh] and not to [Mr Rozdolovschii]"; and that the truth was Mr Giesh was planning to terminate Mr Rozdolovschii's employment "from that point".[200] As I also have already noted, however, in his closing submissions Mr Rozdolovschii submitted that Mr Giesh decided to terminate Mr Rozdolovschii's employment on 28 October 2022;[201] and the statement of claim does not allege ARPL had decided to terminate Mr Rozdolovschii at a time before 28 October 2022, or that, having decided to terminate Mr Rozdolovschii's at any such earlier time, ARPL did so for any particular reason.
9. On my findings, then, ARPL decided to terminate Mr Rozdolovschii' employment by 5 September 2022, and that the decision to terminate his employment on 28 October 2022 was no more than the implementation of a decision Mr Giesh had already made. The relevant focus of inquiry, therefore, ought to have been the reason or reasons for which Mr Giesh decided by 5 September 2022 to terminate Mr Rozdolovschii's employment. That, however, is not an inquiry that is open to me to undertake; and that is because it forms no part of Mr Rozdolovschii's pleaded case, or of Mr Rozdolovschii's closing submissions, that ARPL had decided to terminate Mr Rozdolovschii's employment by 5 September 2022, and that it did so because he had exercised workplace rights, or because he had the alleged protected attributes, or because he had the 352 right.
10. Thus, although I do not accept the evidence Mr Giesh has given about the circumstances in which he says he decided to terminate Mr Rozdolovschii's employment, I am satisfied on the evidence that Mr Giesh did not terminate Mr Rozdolovschii's employment on 28 October 2022 because Mr Rozdolovschii had exercised the established exercise of workplace rights. Mr Giesh had decided to terminate Mr Rozdolovschii by 5 September 2022, and his handing to Mr Rozdolovschii the Termination Letter on 28 October 2022 constituted the implementation of the decision Mr Giesh had made by 5 September 2022.

1. Mr Rozdolovschii's claims against ARPL based on an alleged contravention of s 340(1) of the FW Act, therefore, fails.

CLAIMS BASED ON s 351(1) AND s 352 OF THE FW ACT

1. Given my conclusion in relation to Mr Rozdolovschii's claims based on a contravention of s 340(1) of the FW Act, Mr Rozdolovschii's claims based on contraventions of s 351(1) and s 352 also fail. Mr Rozdolovschii's claim based on s 351(1) fails for the additional reason that I am not satisfied Mr Rozdolovschii suffered from any disability.

1. The statement of claim alleges Mr Giesh was a person involved, within the meaning of s 550(2) of the FW Act, in ARPL's contraventions of s 340(1), s 351(1), and s 352 of the FW Act. Given I have concluded that Mr Rozdolovschii has failed in his claims against ARPL, it necessarily follows that Mr Rozdolovschii fails on his claims against Mr Giesh.

1. Mr Rozdolovschii has failed in his claims against ARPL and Mr Giesh and, for that reason, the application will be dismissed.
2. I will reserve to the parties liberty to apply for orders in relation to costs within 35 days after orders are pronounced.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] See in particular Written Submissions for Applicant, at [334].

[2] EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2004] EWHC 2945; [2005] 1 WLR 3456, at [74].

[3] MacKenna, B., "Discretion" (1974) 9 The Irish Jurist (new series), 1 at page 10.

[4] The Third workplace complaint and inquiry was alleged to have been made "on approximately 10 separate occasions"; the Fourth workplace complaint and inquiry was alleged to have been made from "on or about June 2021 to October 2022 . . . on approximately one occasion per month" (making a total of 17); the Sixth workplace complaint and inquiry was alleged to have been made from "on or about August 2021 to October 2022 . . . on a few separate occasions", and the Eighth workplace complaint and inquiry was alleged to have been made from "on or about November 2021 to October 2022 . . . on approximately10 separate occasions".

[5] As should be apparent from this table, Mr Rozdolovschii deposes to making fewer complaints and inquiries than he alleges in the statement of claim. He nevertheless deposes to having made workplace complaints and inquiries on some 107 occasions. These are the sum of the 96 complaints totalled in the table and the single occasions on which the statement of claim alleges the Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twentieth, Twenty-second, Twenty-third, and Twenty-fourth complains were made.

[6] Affidavit I Rozdolovschii 29.09.2023, [343].

[10] Affidavit I Rozdolovschii 29.09.2023, [12].

[11] The platinum group metals, usually referred to by "PGM" refer to six rare precious metals: platinum, palladium, rhodium, iridium, osmium and ruthenium.

[12] Affidavit S Giesh 14.12.2023, [5].

[13] Affidavit S Giesh 14.12.2023, [6].

[14] All conversations to which I refer in these reasons were conducted in Russian.

[15] Affidavit I Rozdolovschii 29.09.2023, [14].

[16] Affidavit S Giesh 14.12.2023, [19].

[17] Affidavit I Rozdolovschii 29.09.2023, [16].

[18] Affidavit S Giesh 14.12.2023, [21].

[19] Affidavit I Rozdolovschii 29.09.2023, [21]; annexure IR3; Affidavit S Giesh 14.12.2023, [22]; exhibit SG-1, item 10.

[20] Affidavit I Rozdolovschii 29.09.2023, [20].

[21] Affidavit I Rozdolovschii 29.09.2023, [29].

[22] Affidavit I Rozdolovschii 29.09.2023, [38].

[23] Affidavit I Rozdolovschii 29.09.2023, [40]; annexure IR5.

[24] Affidavit I Rozdolovschii 29.09.2023, [40]; annexure IR5, page 173.

[25] Affidavit I Rozdolovschii 29.09.2023, [38].

[26] Affidavit S Giesh 14.12.2023, [37].

[27] Affidavit D Klymuk 13.12.2023, [4].

[28] Affidavit D Vazhenin 13.12 2023, [3].

[29] Affidavit I Rozdolovschii 29.09.2023, [139].

[30] Affidavit I Rozdolovschii 29.09.2023, [140].

[31] Affidavit S Giesh 14.12.2023, [124].

[32] Affidavit S Giesh 14.12.2023, [123], [125].

[33] Affidavit S Giesh 14.12.2023, [123]; exhibit SG-1, page 168.

[35] Affidavit S Giesh 14.12.2023, [123]; exhibit SG-1, page 169.

[36] Affidavit I Rozdolovschii 29.09.2023, [144].

[38] Affidavit S Giesh 14.12.2023, [129].

[39] Affidavit S Giesh 14.12.2023, [130]; Exhibit SG-1, pages 151-155.

[40] Affidavit I Rozdolovschii 29.09.2023, [303], annexure IR11.

[41] Affidavit S Giesh 14.12.2023, [297]; exhibit SG-1, item 36, page 194. I have taken judicial notice of Bitrix24 is an online cloud service that that can be accessed either via browser or via mobile/desktop app. It features several distinct components such as customer relationship management, tasks & projects, chats, online meetings, website builder, online documents, and others, all cross-integrated and available as part of a single platform: , accessed 15 November 2025.

[42] Affidavit I Rozdolovschii 29.09.2023, [163].

[43] Affidavit I Rozdolovschii 29.09.2023, [164].

[44] Affidavit S Giesh 14.12.2023, [148].

[47] Affidavit I Rozdolovschii 29.09.2023, [248].

[48] Affidavit S Giesh 14.12.2023, [223], [224].

[49] Affidavit S Giesh 14.12.2023, [225]; exhibit SG-1, item 16, page 179.

[50] Affidavit I Rozdolovschii 29.09.2023, [166].

[51] Affidavit I Rozdolovschii 29.09.2023, [167].

[52] Affidavit I Rozdolovschii 29.09.2023, [168].

[53] Affidavit S Giesh 14.12.2023, [151]-[156].

[54] Affidavit I Rozdolovschii 29.09.2023, [110]-[112].

[55] Affidavit I Rozdolovschii 29.09.2023, [114].

[56] Affidavit I Rozdolovschii 29.09.2023, [115].

[57] Affidavit I Rozdolovschii 29.09.2023, [116].

[58] Affidavit I Rozdolovschii 29.09.2023, [117].

[59] Affidavit I Rozdolovschii 29.09.2023, [118], [119].

[60] Affidavit S Giesh 14.12.2023, [50].

[61] Affidavit S Giesh 14.12.2023, [97], [98].

[62] Affidavit S Giesh 14.12.2023, [103].

[63] Affidavit I Rozdolovschii 29.09.2023, [156]-[162].

[64] Affidavit S Giesh 14.12.2023, [140]-[146].

[65] Affidavit I Rozdolovschii 29.09.2023, [162].

[66] Affidavit S Giesh 14.12.2023, [147].

[67] Affidavit I Rozdolovschii 29.09.2023, [258], [259].

[68] Affidavit S Giesh 14.12.2023, [237], [238].

[69] Affidavit I Rozdolovschii 29.09.2023, [201].

[70] Affidavit S Giesh 14.12.2023, [184]-[187]; exhibit SG-1, page 175.

[72] T99.20 The copy is at exhibit SG-1, page 174.

[77] Affidavit I Rozdolovschii 29.09.2023, [212].

[79] Affidavit I Rozdolovschii 29.09.2023, [213].

[80] Affidavit I Rozdolovschii 29.09.2023, [214], [215]; annexure "IR6".

[81] Affidavit S Giesh 14.12.2023, [200]-[202]; exhibit SG-1, page 176.

[82] Affidavit I Rozdolovschii 29.09.2023, [206]-[209].

[83] Affidavit S Giesh 14.12.2023, [191]-[193].

[84] Affidavit D Klymuk 13.12 .2023, [32]-[33].

[85] Affidavit D Vazhenin 13.12.2023, [33].

[86] Affidavit I Rozdolovschii 29.09.2023, [261].

[87] Affidavit S Giesh 14.12.2023, [246].

[88] Affidavit A Shtern 12.12.2023, [15]; annexure "A".

[89] Affidavit I Rozdolovschii 29.09.2023, [264]; annexure IR10.

[90] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59].

[92] Affidavit I Rozdolovschii 29.09.2023, [266].

[94] Affidavit I Rozdolovschii 29.09.2023, [267].

[95] Affidavit I Rozdolovschii 29.09.2023, [269].

[96] Affidavit S Giesh 14.12.2023, [241]-[244].

[97] Affidavit I Rozdolovschii 29.09.2023, [273].

[98] Affidavit S Giesh 14.12.2023, [257].

[99] Affidavit I Rozdolovschii 29.09.2023, [270]-[271].

[100] Affidavit I Rozdolovschii 29.09.2023, [134].

[101] Affidavit I Rozdolovschii 29.09.2023, [135].

[102] Affidavit I Rozdolovschii 29.09.2023, [281].

[103] Affidavit I Rozdolovschii 29.09.2023, [275]-[278].

[104] Applicant's Written Submissions, [48].

[105] Affidavit I Rozdolovschii 29.09.2023, [275]-[278].

[106] Affidavit I Rozdolovschii 29.09.2023, [283].

[107] Affidavit I Rozdolovschii 29.09.2023, [284].

[108] Affidavit I Rozdolovschii 29.09.2023, [287].

[109] Affidavit I Rozdolovschii 29.09.2023, [288].

[110] Affidavit I Rozdolovschii 29.09.2023, [289].

[111] Affidavit I Rozdolovschii 29.09.2023, [290].

[112] Affidavit I Rozdolovschii 29.09.2023, [303], annexure IR11.

[115] Affidavit I Rozdolovschii 29.09.2023, [306], annexure IR12.

[116] Affidavit I Rozdolovschii 29.09.2023, [308]; annexure IR13.

[117] Affidavit I Rozdolovschii 29.09.2023, [294].

[118] Affidavit I Rozdolovschii 29.09.2023, [298].

[119] Affidavit I Rozdolovschii 29.09.2023, [311], annexure "IR14.

[120] Affidavit I Rozdolovschii 29.09.2023, [312].

[121] Affidavit I Rozdolovschii 29.09.2023, [313].

[123] Affidavit I Rozdolovschii 29.09.2023, [314].

[124] Affidavit S Giesh 14.12.2023, [283].

[126] Affidavit S Giesh 14.12.2023, [284]; exhibit SG-183.

[127] Affidavit S Giesh 14.12.2023, [284]; exhibit SG-183.

[129] Affidavit I Rozdolovschii 29.09.2023, [324], [325].

[131] Affidavit S Giesh 14.12.2023, [292], [293].

[132] Affidavit I Rozdolovschii 29.09.2023, [330].

[133] Affidavit I Rozdolovschii 29.09.2023, [331].

[134] Affidavit I Rozdolovschii 29.09.2023, [332].

[136] Affidavit I Rozdolovschii 29.09.2023, [321]-[322].

[137] Affidavit D Vazhenin 13.12.2023, [3].

[138] Affidavit S Giesh 14.12.2023, [296].

[139] Affidavit S Giesh 14.12.2023, [297]; exhibit SG-1, item 36, page 194.

[140] Affidavit S Giesh 14.12.2023, [297]; exhibit SG-1, item 36, page 195.

[141] Affidavit I Rozdolovschii 29.09.2023, [335].

[142] Affidavit I Rozdolovschii 29.09.2023, [336].

[143] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59].

[144] Written Submissions for the Applicant, [77].

[145] Monash Health v Singh [2023] FCAFC 166, at [57].

[146] Affidavit I Rozdolovschii 29.09.2023, [338]. In his affidavit Mr Rozdolovschii says this occurred on 29 September 2022, but it is common ground that this occurred on 27 September 2022.

[148] Affidavit I Rozdolovschii 29.09.2023, [340].

[150] Affidavit S Giesh 14.12.2023, [300].

[151] Affidavit S Giesh 14.12.2023, [301].

[152] Affidavit S Giesh 14.12.2023, [303].

[158] Affidavit I Rozdolovschii 29.09.2023, [343].

[159] Affidavit S Giesh 14.12.2023, [305].

[160] Affidavit S Giesh 14.12.2023, [326]; exhibit SG-1, page 7.

[164] Affidavit I Rozdolovschii 29.09.2023, [348].

[166] Written Submissions of Applicant, [82].

[167] Affidavit I Rozdolovschii 29.09.2023, [343].

[168] Affidavit I Rozdolovschii 29.09.2023, [344].

[169] Affidavit I Rozdolovschii 29.09.2023, [345], [346].

[170] Affidavit I Rozdolovschii 29.09.2023, [355].

[171] Affidavit I Rozdolovschii 29.09.2023, [356].

[172] Affidavit S Giesh 14.12.2023, [311], [312]; exhibit SG-1, item 39.

[173] Affidavit I Rozdolovschii 29.09.2023, [358]-[364].

[174] Affidavit S Giesh 14.12.2023, [315]-[318].

[175] Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27, at [36].

[176] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77].

[177] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ).

[178] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J).

[179] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [13], [14] (emphasis in original).

[180] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [44]- [45] (Gummow and Hayne JJ agreeing at [71]).

[181] Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323, at [437].

[182] Written Submissions for Applicant, [329].

[183] Affidavit S Giesh 14.12.2023, [13].

[184] Affidavit S Giesh 14.12.2023, [16]; exhibit SG-1, item 6.

[185] Affidavit S Giesh 14.12.2023, [326]-[331].

[198] Written Submissions for Applicant, [333].

[199] Respondent's Outline of Closing Submissions, [55.b.].

[201] Written Submissions for Applicant, [329]: "The Applicant submits that the Court should make its determination on the basis that the decision was made on 28 October and the decision was made to terminate the Applicant's employment on 28 October 2022."