Shirmohammadi v MMP Industrial Pty Ltd [2026] FedCFamC2G 181

1. The claim for relief based on the allegation that the first respondent was bound, but failed to give, to the applicant three months' notice before it could terminate the applicant's employment, is dismissed.
2. The claims for relief based on the allegation that the first respondent contravened s 340(1) of the FW Act, and that the second respondent was involved in that contravention, are dismissed.
3. The matter be listed for a directions hearing at 9.30 am on 13 March 2026 for the purpose of making directions on the question of penalties.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant, Mr Shirmohammadi, commenced employment with the respondent (MMPL) on 31 October 2022 in the position of operations manager. He did so pursuant to the terms of a written contract (Employment Contract). MMPL continued to employ Mr Shirmohammadi until 17 April 2023, when it purported to terminate his employment.
2. The Employment Contract provided that MMPL would pay Mr Shirmohammadi a salary of $200,000 per annum, inclusive of superannuation contributions, and that MMPL would pay his salary on a weekly basis. MMPL did not, however, pay Mr Shirmohammadi's salary on a weekly basis. Instead, commencing on 3 November 2022, MMPL paid to Mr Shirmohammadi every week the gross amount of $1,923.18, which represented about 54% of his weekly salary, and on the sixteenth or seventeenth day of each month a company by the name of Avance Urban Pty Ltd (AUPL) paid to Mr Shirmohammadi $6,121. There is no dispute that the sum of the weekly and monthly amounts MMPL paid to Mr Shirmohammadi was less than the amounts MMPL ought to have paid to Mr Shirmohammadi for each month. (I will refer to the amounts ought to have paid, but did not pay as the shortfall amounts.)
3. There is also no dispute about the following:

(a) Although MMPL issued to Mr Shirmohammadi payslips for each of the weekly payments it made to him, MMPL did not issue any payslips for the monthly payments AUPL made.

(b) At the time MMPL terminated Mr Shirmohammadi's employment, Mr Shirmohammadi had accrued untaken annual leave of $4,390.84 but, contrary to s 90(2) of the Fair Work Act 2009 (Cth) (FW Act), MMPL did not, at the time it terminated his employment, pay Mr Shirmohammadi any amount for that leave.

(c) At the time MMPL terminated Mr Shirmohammadi's employment, MMPL had failed to pay $4,390.84of the superannuation contributions it was required to pay.

(d) On 13 June 2023 MMPL paid $3,856.20 to Mr Shirmohammadi's superannuation account.

(e) On 21 June 2023 MMPL paid to Mr Shirmohammadi $1,917.52 purportedly for Mr Shirmohammadi's final three days employment on 13, 14, and 17 April 2023; $4,390.84 in accrued but untaken annual leave of 47.94 hours; $222.64 in unpaid superannuation contributions; and $3,481 for one week's pay in lieu of notice.

1. In these circumstances, Mr Shirmohammadi (who often goes by the name of "Matt Shiro"[1]) commenced this proceeding in which he alleges that MMPL:

(a) contravened s 323(1) of the FW Act by failing to pay amounts totalling $1,917.52, being the sum of the shortfall amounts;

(b) contravened s 44 of the FW Act by failing to pay to Mr Shirmohammadi, contrary to s 90(2) of the FW Act, accrued but untaken annual leave at the time MMPL terminated Mr Shirmohammadi's employment;

(c) contravened s 536(1) of the FW Act by failing to provide to Mr Shirmohammadi a payslip within one working day of paying amounts for work performed on 16 November 2022, 17 December 2022, 17 January 2023, 19 February 2023, 17 March 2023, 16 April 2023, and 21 June 2023;

(d) contravened s 536(3) of the FW Act by providing a payslip that was false or misleading; and

(e) contravened s 117(1) of the FW Act by failing to provide to Mr Shirmohammadi written notice of the day of termination on or before 17 April 2023.

(I will refer to these claims as the NES and Payslips claims.)

1. Mr Shirmohammadi makes two additional claims. The first (Failure to Give Notice claim) is that it was a term of the Employment Contract that MMPL would give Mr Shirmohammadi three months' notice of its intention to terminate his employment but, in breach of that term, MMPL terminated Mr Shirmohammadi's employment on the assumption that it was required to give him no more than one week's notice. The second claim (Adverse Action claim) is that MMPL terminated his employment in contravention of s 340(1) of the FW Act because he had exercised workplace rights, these being Mr Shirmohammadi's making complaints in relation to work health and safety matters, in relation to not being provided with payslips, and in relation to MMPL's failure to make superannuation contributions. Mr Shirmohammadi further alleges that the second respondent, Mr King, was, within the meaning of s 550(2) of the FW Act, a person involved in MMPL's contraventions of the FW Act (Accessorial claim).
2. The respondents substantially admit the NES and Payslips claims, and the Accessorial claims to the extent they relate to the contraventions alleged in the NES and Payslips claims; but they dispute the Failure to Give Notice and the Adverse Action claims. The respondents contend that MMPL was entitled to terminate, and it did terminate Mr Shirmohammadi's employment, by giving no more than one week's notice, being the minimum notice period provided for by s 117 of the FW Act; and the respondents contend that MMPL terminated Mr Shirmohammadi's employment because he did not successfully complete his probation.
3. In these reasons for judgment, therefore, I will identify the extent to which the respondents have admitted the NES and Payslips claims; determine the (non-pecuniary penalty) relief to which Mr Shirmohammadi is entitled on the NES and Payslips claims; and consider the Failure to Give Notice and Adverse Action claims. I will proceed as follows. First, I will set out in narrative form the evidence or the effect of the evidence of the events leading up to and including MMPL's termination of Mr Shirmohammadi's employment. In that section of my reasons I make a number of findings. Unless the context suggests otherwise, any unqualified statement of fact should be taken to reflect a finding of the fact stated. Second, I will, consider each of Mr Shirmohammadi's claims.

1. In or about early 2022 Mr King arranged to incorporate MMPL for the purpose of acquiring the business that was being conducted by MMPL Industrial Pty Ltd (MMPL business). That business consisted of the manufacture of aerosol and other products. MMPL completed the acquisition of the MMPL business in April 2022. Before Mr King acquired it, the MMPL business was conducted by Mr David Stewart and his two sons, Mr Nathanael Stewart (Mr Stewart), and Mr Barney Stewart.[2]
2. MMPL's head office, factory, and warehouses were located at an approximately eight acre property in Mulgrave, New South Wales. MMPL currently employs approximately 45 people. Mr King is and at all times has been the sole director of MMPL.
3. On MMPL's acquiring the MMPL business, Mr King found the factory and warehouse to be badly run down, and he considered that they required significant cleaning, and extensive renovations.

1. On 16 September 2022 Mr Shirmohammadi signed a letter dated 10 September 2022 from MMPL titled " LETTER OF APPOINTMENT" (being the Employment Contract). The Employment Contract provided that Mr Shirmohammadi would be employed in the position of operations manager, having the duties "customarily held by your position together with any other duties" MMPL may have directed Mr Shirmohammadi to perform. The duties Mr Shirmohammadi was required to perform were set out in schedule 2 to the Employment Contract, which provided:

Operations Manager

MMP Industrial was established in 1976 and is now the largest industrial and paint aerosol producer and one of the largest aerosol and volumetric chemical companies in Australia. Our Australian and New Zealand facilities cover 2.8 hectares, has bulk chemical storage capacity of 750,000L, bulk LPG storage of 152,000t and produces approximately twenty million aerosol and volumetric products annually. Our proprietary brands are well known and stocked by all major automotive retailers. We also toll and contract manufacture, making products for some of the largest international brands.

Accountabilities

• Ensures safe working conditions and that the plant complies with relevant legislation, local requirements and environmental standards.
• Plans and organises production to ensure targets are achieved at maximum efficiency and within budgeted costs.
• Manages the planning of long-lead supplies.
• Manages process improvement across the entire procurement, production and warehousing spectrum.
• Ensures that customer orders are process and warehouse staff are packing according to packing priority.
• Participates in meetings relating to planning, production, quality, maintenance, safety and other matters.
• Ensures the best quality selection, training, development and utilisation of employees.

1. The Employment Contract provided that Mr Shirmohammadi would be paid $200,000 per annum, including superannuation contributions, and that the "salary component" of Mr Shirmohammadi's remuneration, less applicable tax, would be paid weekly. Clause 15 of the Employment Contract provided for the termination of employment; and it relevantly provided as follows:

15.1 Following the completion of your probationary period, being six months, or any extension to your probationary period, the Company may terminate your employment for any reason in accordance with the National Employment Standards.

15.2 You may terminate your employment by the giving of the period of written notice specified at Item 7 of Schedule 1. If you don't give this notice, you acknowledge that you will be in breach of this Letter of Appointment and the Company may elect to not pay you your salary and to terminate your employment immediately by giving written notice to you.

15.3 In addition, where notice is given by either party the Company may choose to make a payment of your salary in lieu of part or all of your period of notice. Also, the Company may require you not to attend work and/or to perform lesser, different or no duties during the period of notice or part of the period of notice.

15.4 If you resign or the Company gives you notice of the termination of your employment, the Company reserves the right to withdraw any approval it has given to you to take annual leave or long service leave during the period of your notice.

1. The reference to "Item 7" in cl 15.2 is an error. "Item 7" was intended to be a reference to item 9 of schedule 1 to the Employment Contract, which provides for a "Termination Notice Period" of three months.

1. Shortly after he commenced his employment, Mr Shirmohammadi hired his own team consisting of a procurement manager, Mr Hamed Assifi, a production manager, Mr David Cerone, and a production engineer, Mr Vipal Patel.[3] Mr Assifi, Mr Cerone, and Mr Patel, each reported to Mr Shirmohammadi, while Mr Shirmohammadi reported to Mr King.[4] Three other persons reported to Mr King. They were the sales manager, Mr Robinson, the Work Health and Safety Human Resources Manager, Ms Borgman, and a bookkeeper, Ms Samantha (Sam) Norman.[5]

1. According to Mr Shirmohammadi, on 3 November 2022 MMPL paid him $1,153.91 for work Mr Shirmohammadi performed from 31 October to 2 November 2022. Mr Shirmohammadi says this amount was calculated at an hourly rate of $50.61 when, under the Employment Contract, he was entitled to be paid at the hourly rate of $91.5969.[6] Mr Shirmohammadi says that this represented an underpayment of $40.9869 for each hour he worked. Mr Shirmohammadi further says that he received an additional payment each month to his bank account "with a description along the lines of it being a transfer from Avance Urban Pty Limi" (that is, AUPL).[7] This pattern of weekly payments from MMPL, and monthly payments from AUPL, continued throughout Mr Shirmohammadi's employment. Mr Shirmohammadi does not, in his first affidavit, say he had any discussion with Mr King about these payments; Mr Shirmohammadi only says he understood that the payment from AUPL was half of the salary to which he was entitled under the Employment Contract.[8]
2. In his affidavit Mr King says that in around early October 2022 he had an "in-person" conversation with Mr Shirmohammadi as follows:[9]

AK (Mr King): If you don't mind, I'd like to pay you $100,000 on the books and the rest through another entity.

MS (Mr Shirmohammadi): Why?

AK (Mr King): So the others can't see how much you get paid. I don't want the controversy.

MS (Mr Shirmohammadi): That should be fine, what about pay slips?

AK (Mr King): I'll do a consolidated pay slip for you when you need it.

MS (Mr Shirmohammadi): OK

1. In his second affidavit Mr Shirmohammadi referred to this part of Mr King's affidavit. Mr Shirmohammadi denies that Mr King offered to provide him with consolidated payslips, but he otherwise does not deny he had a conversation to the effect Mr King deposed. Mr Shirmohammadi instead said as follows:[10]

The issue regarding the salary arrangement between MMP Industrial and [AUPL] is not my responsibility or within my control. When I needed a payslip for a car loan application, Mr. King failed to provide one, forcing me to rely on an MMP payslip and include my wife as a second applicant to secure approval. This lack of transparency and support from Mr. King put me in a difficult position.

1. In evidence given under cross-examination, Mr Shirmohammadi accepted Mr King told Mr Shirmohammadi that the salaries of the persons who were at MMPL before Mr King acquired the MMPL business were lower than Mr Shirmohammadi's salaries;[11] and that the reason Mr King decided to split Mr Shirmohammadi's salary was that there would be no embarrassment internally in relation to how significantly high Mr Shirmohammadi's salary was compared to the others.[12] Mr Shirmohammadi, however, says that Mr King told him these things "later on".[13]
2. In these circumstances, I am satisfied Mr King had a conversation with Mr Shirmohammadi to the effect he deposed; and I find the conversation occurred at around the time MMPL made the first payment to Mr Shirmohammadi. I therefore find that in early October 2022 Mr King had a conversation with Mr Shirmohammadi in which he asked Mr Shirmohammadi whether he would mind if Mr King paid him "$100,000 on the books and the rest through another entity"; and that the reason he gave Mr Shirmohammadi for the request was "[s]o the others can't see how much you get paid". I further find that Mr Shirmohammadi acquiesced with Mr King's request.
3. There is no dispute that throughout his employment, Mr Shirmohammadi received two classes of payment on account of his salary. The first were weekly payments MMPL made of $1,923.18 gross and $1,442.18 net. MMPL issued payslips for each of these payments. The second class were monthly payments of $6,121 gross, and $4,275.00 net AUPL made to Mr Shirmohammadi.[14] There is also no dispute that in relation to the amounts MMPL paid, MMPL made superannuation contributions; but neither MMPL nor AUPL made any superannuation contributions in relation to the monthly amounts AUPL paid before MMPL terminated Mr Shirmohammadi's employment.[15]

1. In his first affidavit Mr Shirmohammadi deposes that in late January 2023 he asked Mr King to provide payslips for his entire salary because Mr Shirmohammadi wanted to apply for a car loan; but Mr King did not provide Mr Shirmohammadi with payslips for the payment of his own salary.[16] Mr King does not refer to this part of Mr Shirmohammadi's affidavit.
2. In his first affidavit Mr Shirmohammadi further deposes that he "subsequently intended to purchase an investment property", and again Mr King did not provide complete payslips to him. Mr Shirmohammadi deposes that Mr King said:[17]

Wait until the market is good and I will refer you to my broker for home loans because he can easily falsify the documents, including your payslips. We can provide you with payslips up to $400,000 if needed, you just make sure you can serve the loan.

1. Mr Shirmohammadi also deposes Mr King advised him "to disregard the inaccuracies in my pay slips and referred me to a different broker who could easily falsify the documents as he has been doing this in the last 10 years of his real-estate business".[18]
2. There are a number of difficulties with this evidence.

(a) First, the proposal Mr Shirmohammadi says Mr King made is internally inconsistent. If Mr King had in fact proposed that his broker could falsify Mr Shirmohammadi's payslips, it would have made no sense for Mr King also to have proposed to issue payslips that falsely record that Mr Shirmohammadi earned an annual income of up to $400,000; the payslips would have already falsely recorded Mr Shirmohammadi's annual income. If, on the other hand, Mr King had proposed to issue payslips that falsely recorded Mr Shirmohammadi's income, it would have made no sense for Mr King also to have suggested that his broker could easily falsify documents, including payslips, because the payslips Mr King were to have issued would have already falsely recorded Mr Shirmohammadi's income.

(b) Second, I have found that in early October 2022 Mr King had a conversation with Mr Shirmohammadi in which he asked Mr Shirmohammadi whether he would mind if Mr King paid him "$100,000 on the books and the rest through another entity"; and that the reason Mr King gave Mr Shirmohammadi for the request was "[s]o the others can't see how much you get paid". Given that finding, it is implausible that Mr King offered to issue payslips that would falsely record double the actual income Mr King said he did not wish to be recorded in payslips that MMPL would issue to Mr Shirmohammadi.

(c) Third, although he says that Mr King "referred me to a different broker", Mr Shirmohammadi does not identify the broker to whom Mr King is said to have referred Mr Shirmohammadi.

1. For any one of these reasons, I do not accept Mr Shirmohammadi's evidence that Mr King had proposed that he would refer Mr Shirmohammadi to Mr King's broker who would falsify documents, or that Mr King proposed that he would issue payslips that would falsely record Mr Shirmohammadi's income to enable Mr Shirmohammadi to apply for a loan.
2. The evidence Mr Shirmohammadi gave under cross-examination reinforces my non-acceptance of the evidence Mr Shirmohammadi gave in his affidavit. Mr Shirmohammadi said that Mr King indicated how documents could be falsified:[19]

And he said he would do that for you, didn't he?‑‑‑He said, "Don't worry about payslip. I know the broker", and I said, "Because I have issue, you know, because I will get two payslips". He said, "Don't worry about that. I can introduce you to the broker". So they just falsified document, just put extra zero. "That is what I have been doing the last 10 years. So I can give you payslip up to $400,000, as long as you can save the loan". Don't - don't worry about that.

A payslip adding an extra zero ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ would be a payslip that indicated that you earned $2 million. You accept that, don't you?‑‑‑Yes. But he said, "I can - he can put extra zero here and then and just change that - the document. That is what I have been doing for last 10 years. My investment - property investment, and they can easily falsify the document for you. Don't worry about that".

Mr Shirmohammadi, he never said to you that he would get a payslip and add an extra zero, did he?‑‑‑He - he said that.

He did?‑‑‑He did.

That explanation makes no sense at all, because adding an extra zero to your payslip would mean you would be paid $2 million?‑‑‑Not in my payslip. He didn't say in my payslip. He said they can put in my account number, and they can just falsify a document. "I have been doing this for many years, so don't worry about it. Get loan". So ‑ ‑

1. This evidence is implausible. Any document that reflected Mr Shirmohammadi's actual income could not be altered to reflect an income of up to $400,000 simply by adding a zero. As was put to Mr Shirmohammadi in cross-examination, the addition of a zero to an annual income of $200,000 would result in an annual income of $2 million.
2. In his affidavit, Mr King denies he had any conversation to the effect deposed by Mr Shirmohammadi. Mr King says he recalls Mr Shirmohammadi telling him, on "multiple occasions", that he wanted to buy an investment property, and that, on those occasions, Mr King provided opinions about the housing market, offered to provide him with consolidated pay slips, and to introduce one of Mr King's mortgage brokers to Mr Shirmohammadi. Mr King says he recalls one of the conversations to be to the following effect:[20]

MS: My payslips may affect my ability to obtain a home loan. At some stage, I'm going to need consolidated pay slips to apply for an investment property.

AK: No problem, whenever you're ready let me know.

MS: How do you do it?

AK: For residential mortgages, I use brokers. I have two I could recommend, they are very good. They're pretty creative at getting an outcome, it's definitely better than going to a bank.

By "they're pretty creative", I was trying to make light of the recent Hayne royal commission into the financial sector, which heavily implicated mortgage brokers. I did not at any time suggest, promise or guarantee that anyone would falsify documents for Mr Shirmohammadi.

14 April 2023 - Mr Shirmohammadi inquires about superannuation contributions

1. On 14 April 2023 Mr Shirmohammadi sent an email to Mr King in which he asked Mr King to "check with your accountant, my super for the other half of my salary (Avance) has not been paid to my super account since I started". Mr King responded later in the evening with an email stating: "its [sic] on the WIP list. I will get to it shortly".[21] In closing submissions, counsel for Mr Shirmohammadi that these statements were "fictitious", and that it should be inferred Mr King was not being honest when he made those statements.[22] The basis of that submission is that "no work that had been performed in terms of having [Mr Shirmohammadi] paid his superannuation".[23] I do not accept that submission. By stating "I will get to it shortly" Mr King unmistakably represented that he had not yet made any arrangements to pay Mr Shirmohammadi's superannuation.

1. In the statement of claim Mr Shirmohammadi alleges he raised many safety issues with Mr King, only some of which were "fixed".[24] In their defence, the respondents admit Mr Shirmohammadi raised various safety concerns, but say it was Mr Shirmohammadi's primary duty to ensure safe working conditions, and compliance with relevant legislation, local requirements, and environmental standards.[25] Mr Shirmohammadi has given the following evidence:

(a) During Mr Shirmohammadi's employment, a government inspector "would visit the premises". On those occasions, Mr King "would instruct" Mr Shirmohammadi "to cease production in certain areas particularly Warehouse 7 and were required to close the doors to the warehouse".[26]

(b) Mr Shirmohammadi formed the belief that warehouse 7, where MMPL made most of its paint products, failed to meet basic safety standards, including manual handling, chemical and flammable material management, and equipment safety.[27]

(c) Mr Shirmohammadi raised numerous safety issues with Mr King on an ongoing basis. The majority of the issues Mr Shirmohammadi raised concerned the paint-making area, and specifically in warehouses 1, 7, and 8 with regard to the daily driving of forklifts.[28] Some of these issues required long-term solutions, while others demanded immediate attention, such as improving ventilation to address the presence of toxic gases that pose a risk to people's health.[29]

(d) On 21 February 2023 Mr Inesh Rabin sent the following sms text message to Mr Shirmohammadi (errors in original):[30]

Good morning,

This is Inesh, i will be unable to come today i have a doctors appointment today.. I have been developing skin irritant. Actually on last Thursday my hand felt little pain while cleaning it didnt touched my skin though it was vapor of Acetone. So now after few days the irritation didnt went off so i have to visit and consult about the things. I am sorry i could not be there today. I'll update you about today's consultation thanks.

(e) It appears Mr Rabin sent another sms text message on 21 February 2023 in which he informed Mr Shirmohammadi that Mr Rabin would be unable to attend work on the following day. Mr Rabin requested if he "can do anything else in the factory other than blending" because "the chemicals rather are effective on me".[31]

(f) The issue of tanks integrity and the safety of individuals were repeatedly brought to Mr King's attention, highlighting the presence of highly dangerous chemicals in various locations throughout the factory.[32]

(g) Mr Shirmohammadi repeatedly advised Mr King to take measures regarding speeding with forklifts, and the improper use of mobile phones particularly by staff from the transport company.[33]

(h) Numerous employees "filed complaints about these issues".[34] Mr King told Mr Shirmohammadi to tell "the complainants" that he will acknowledge their concerns, and evaluate the possibility of replacing the current transport company. Mr King, however, "clarified to" Mr Shirmohammadi that "he had no intention of making such a change".[35] Mr King said that addressing the complaints would require replacing the current transport company, which he believed would result in an additional cost of at least $500,00.[36] Mr King chose to disregard the issues Mr Shirmohammadi raised, and instead insisted Mr Shirmohammadi accept and tolerate the existing situation.[37]

(i) Mr Shirmohammadi brought to Mr King's attention the hazardous transfer of vats to the production line; but Mr King dismissed Mr Shirmohammadi's concerns, "citing excessive expenses".[38] Transporting paint vats in an unsafe manner led to frequent incidents.[39]

(j) Mr Shirmohammadi had concerns about many holding tanks on the premises not being suitable for storing dangerous goods. Those concerns were corroborated by experts. When Mr Shirmohammadi attempted to address these matters, Mr King disregarded them and expressed dissatisfaction with his interactions with the experts.[40]

1. Mr King has given the following evidence:[41]

Given the nature of his role and his reporting line, in the course of his employment, Mr Shirmohammadi would regularly raise health and safety concerns with me. As a matter of practice, we or I would then assess those health and safety concerns, develop and take steps to eliminate or minimise health and safety risks, so far as reasonably practicable by, for example:

1. Undertaking substantial redesign works (for example, the removal of blending equipment from Warehouse 7 and relocating it to Warehouse 11 which commenced in early 2023 and is ongoing, the installation of a new production line in Warehouse 4 which occurred in or about late 2022, and the enclosure and ventilation of all new machines installed which is an ongoing process).
2. Engaging experts and consultants (for example, Arel Consulting was engaged for the redesign of Warehouse 7 and Recopak Machinery were engaged for the supply, installation and commissioning of a new packaging machine in Warehouse 1 and Warehouse 6).
3. Ensuring the appropriate training, policies and procedures are in place.

1. Mr King denied most of the matters to which Mr Shirmohammadi deposed in his first affidavit. Mr King, however, acknowledges there was poor ventilation in Warehouse 7, and;[42]

(a) says he was unaware of any complaints having been filed in relation to the speeding with forklifts, or improper mobile phone usage;[43]

(b) says MMPL has a blanket ban on the use of mobile phones on site; staff are directed to lock their phones in lockers before the start of their shift; and contractors are made aware of the ban through the "Electronic Visitor Register";[44]

(c) says that on limited occasions, where staff or contractors had been caught using a phone on-site, they had been issued with a warning, or had been terminated;[45]

(d) says that he is aware of one incident of spilled paint, but is unaware of any injuries;[46]

(e) agrees that some of the holding tanks, which had been decommissioned, were not suitable for storing dangerous goods; but these were labelled with the words "NOT IN USE".[47]

1. It is unnecessary, because it is not relevant, to make any findings on the particular matters about which there is a conflict of evidence. The matters about which Mr Shirmohammadi says he communicated to Mr King appear to be matters that fell within the duties MMPL had engaged Mr Shirmohammadi to perform as an employee of MMPL.

1. According to Mr King, during Mr Shirmohammadi's employment he observed Mr Shirmohammadi was focused predominantly on the renovations to the detriment of production planning, and the customer service aspects of his duties. While Mr Shirmohammadi was good at cleaning up the warehouse, "he and his team performed poorly when it came to procurement and production". In support of this evidence, Mr King refers to the following: [48]

(a) At 8:15 am on 1 March 2023 Mr Robinson sent an email to Mr Assifi and "Matthew Shir", that is, Mr Shirmohammadi, in which Mr Robinson referred to "Concepts" (which I infer was a customer of MMPL) were asking when they could have the fish oil, 2 pallets of which Mr Robinson had ordered on 17 February 2023. Mr Assifi had told Mr Robinson that no order was to be placed, and that "Matt said we are not doing this". Mr Robinson said he had "no communication on this", and he asked Mr Shirmohammadi to "tell me why you have put a stop to this".[49] Mr Shirmohammadi respondent by email (copied to Mr King) stating that "Andrew" advised Mr Shirmohammadi "we shouldn't start anything while we are not set up for the product", noting that "[a]s we all know, all resources focus on serving the current backlog, and we need a guild [sic] line for new product development". Mr King then sent an email stating that "as soon as bulk products and components are confirmed for OOS SCA products, they need to be made as a priority".

(b) At 8:18 am on 7 March 2023 Mr Cerone sent an email to a number of recipients, including Mr King and Mr Shirmohammadi, providing a "snapshot [of] .... Monday's results". Mr King then sent an email to Mr Shirmohammadi as follows:[50]

Hi Matt, we have heaps of staff and production remains stubbornly low

What is the main problem?

(c) At 7:55 pm on 9 March 2023 Mr King sent the following email to Mr Shirmohammadi and others (emphasis in original):[51]

Hello All, firstly, thanks for your hard work to date, I really appreciate it and the improvements are being noticed by our customers.

But until we are on top of everything, urgent orders will need to be slotted in as a priority from time to time. If you receive an urgent request from Greg [Robertson], please act on it - he is the primary interface with our customers (I am often directly involved in discussions with customers, and if not, I am briefed daily be [sic] Greg). If Greg loses credibility in the eyes of customers, we are quickly written off as just as bad as the previous management, which will be terminal.

We have to serve customers or we have no viable business.

....

(d) Between about December 2022 and April 2023 Mr King had numerous "in-person" meetings with Mr Shirmohammadi in which he said that Mr Shirmohammadi needed "to get on top of can orders for Supercheap".[52] "Supercheap" is a reference to Super Cheap Auto Pty Ltd (SCA), who was then MMPL's largest customer, accounting for around 40% of its revenue.[53]

1. Mr King also deposes that, at other times, Mr Shirmohammadi and his team "would grossly over-order product".[54]

1. Mr Robinson has given the following evidence about his interactions with Mr Shirmohammadi:

(a) Mr Robinson commenced employment with MMPL on 17 October 2022 in the position of sales manager.[55]

(b) Given Mr Robinson was in charge of sales, and Mr Shirmohammadi was in charge of operations; Mr Robinson and Mr Shirmohammadi interacted daily; and he and Mr Shirmohammadi attended weekly team meetings with between four to six other staff to discuss the business and potential improvements.[56]

(c) Before Mr Shirmohammadi commenced employment as operations manager, Mr Robinson interacted with Mr Stewart, who was responsible for ordering raw materials, ordering components such as valves, nozzles, and labels, ordering aerosol cans, and setting production.[57] After Mr Shirmohammadi commenced employment with MMPL, however, he hired a team consisting of a procurement manager (Mr Assifi), and a production manager (Mr Cerone), with the consequence that the role Mr Stewart had been performing was divided between Mr Shirmohammadi, Mr Assifi, and Mr Cerone.[58]

(d) When he sold a product, Mr Robinson communicated the purchase order to Mr Stewart and, after he left, to Mr Shirmohammadi's team. That team was then responsible for placing orders for raw materials, cans, and components to enable MMPL to manufacture the products ordered.[59]

(e) In about February 2023 Mr Robinson started to receive telephone calls from customers asking why they had not received their orders. SCA was one of those customers. Mr Robinson had placed an order on 17 February 2023 for SCA; on 1 March 2023 he received a call from SCA asking where the order was; and Mr Robinson then enquired of Mr Assifi who said Mr Shirmohammadi told him to put a stop to it.[60] A meeting was arranged for 2 March 2023, at which Mr Robinson asked Mr Shirmohammadi why he decided to stop the order. Mr Shirmohammadi said: "We're not making any new products, we can't handle it".[61]

1. Ms Borgman started working as a process worker with MMPL in about 2009 when the company was managed by Mr David Stewart, and his two sons. In about 2013, Ms Borgman completed a course in occupation health and safety consultation for safety committees and representation, and in 2019 she completed a Certificate IV in Workplace Health and Safety. When she completed that course, MMPL appointed her as its WHS and Human Resources Officer; and she continued in that role after Mr King acquired MMPL in 2022. In that position, Ms Borgman was responsible for undertaking induction and training of staff; dealing with staff complaints; administering payroll and employment benefits; organising site checks for compliance with WHS obligations; organising the servicing of equipment; and liaising with managers and supervisors in relation to the performance of staff and WHS protocols.[62]
2. By December 2022 Ms Borgman formed the view that Mr Shirmohammadi was dismissive of her opinions; and that, while he had technical experience, he did not understand the day-to-day running of a factory, and he was creating a divide in the office. Mr Shirmohammadi had a small team under him (Mr Assifi, Mr Patel, and Mr Cerone) with whom he did not conduct meetings in the open plan office, but would instead meet upstairs in a closed meeting room.[63]
3. Between December 2022 and March 2023 the divide widened between the new team (Mr Shirmohammadi, Mr Assifi, and Mr Patel) and the old team (Ms Borgman, Ms Norman, and Mr Stewart).[64] Ms Borgman formed the view that Mr Shirmohammadi and his team was "making decisions without consulting other teams, such as ordering large amounts (in the tens of thousands) of products that were not in demand, cancelling orders for products that were in demand, and hiring more production workers than capacity could handle".[65] Ms Borgman annexed four emails she had sent to Mr Shirmohammadi on 3 April 2023 about interpersonal issues that were developing between staff to which Mr Shirmohammadi did not respond.[66]
4. Ms Borgman further says that at one of the team meetings in person in around March 2023, Mr Shirmohammadi interrupted her several times when she was trying to give her opinion; he started raising his voice and said words to the effect that Ms Borgman should stop talking. A blender whom Mr Robinson brought to the meeting validated Ms Borgman's opinion. Shortly after the meeting, Mr King pulled Ms Borgman aside, and said to her words to the effect: "Matt's not good at taking opinions from people, is he?"[67]
5. Ms Borgman was cross-examined, but this part of her evidence was not challenged.

1. In his second affidavit, Mr Shirmohammadi does not dispute the difficulties Mr King identifies in his affidavit; but Mr Shirmohammadi denies that the difficulties were due to him. Mr Shirmohammadi says:

(a) his focus on renovations was strategic, being aimed at improving both operational efficiency, and worker safety;[68]

(b) his communication with Mr Robinson concerning prioritisation of jobs for SCA "was consistent and aimed at ensuring efficient production flow"; but "challenges arose due to a lack of understanding and flexibility in operation management, exacerbated by a premature push for implementing a new Material Requirements Planning . . . without fully appreciating its complexities or integration needs";[69] and

(c) Mr King's evidence concerning over-ordering "misrepresents the situation"; ordering was a collaborative process, which included inputs from various team members; and "[m]isinterpretations of order quantities were primarily due to Mr King's direct involvement and a lack of a robust inventory management system".[70]

1. Mr Shirmohammadi does not respond to Mr Robinson's affidavit or to Ms Borgman's affidavit. Mr Shirmohammadi was, however, cross-examined about the matters to which Ms Borgman and Mr Robinson deposed: Mr Shirmohammadi denied there had been a divide between the old and new teams;[71] he denied the relationship started to get progressively worse from December 2022;[72] he denied he had cancelled any order;[73] although he accepted Mr Shirmohammadi was hiring a lot of staff, he did not accept there were too many staff to be accommodated in the factories;[74] Mr Shirmohammadi denied he had ignored Ms Borgman;[75] Mr Shirmohammadi denied telling Ms Borgman to stop talking;[76] and he denied raising his voice at people.[77]
2. Whether Mr King's, or Mr Robinson's, or Ms Borgman's opinions about Mr Shirmohammadi's performance are correct is not a matter that is necessary to decide. What is relevant is whether Mr King's actually held the opinions he says he held about Mr Shirmohammadi's performance because, as I set out later, the reason Mr King (on his evidence) gave to Mr Shirmohammadi for terminating his employment was that he had "been unimpressed with [Mr Shirmohammadi's] performance and communication style".

1. I accept Mr King's evidence, and I therefore find Mr King formed the opinion that, although Mr Shirmohammadi was good at cleaning up the warehouse, he and his team performed poorly when it came to procurement and production, and that Mr Shirmohammadi and his team "would grossly over-order product";[78] and I further find that Mr King had formed these opinions by 17 April 2023. I also find that Mr King had reasonable grounds for holding such opinion. The grounds consist of the matters contained in the emails to which Mr King referred in his affidavit, the email Ms Borgman sent to Mr Shirmohammadi and copied to Mr King on 13 April 2023 (to which I refer later in these reasons), and also to the matters to which Mr Robinson and Ms Borgman referred in their affidavits, it being reasonable to suppose that the matters to which they referred were matters of which Mr King, as the sole director of MMPL, would have become aware.

6 April 2023 - management meeting before Mr King went on leave

1. According to Mr King, on 6 April 2023 he called a management meeting to delegate tasks while Mr King was going to be on leave from 7 to 16 April 2023. Mr King drew on a whiteboard a "matrix of responsibilities". Mr King wrote Mr Shirmohammadi's name at the top left corner of the whiteboard "indicating that he had the highest level of seniority and was to manage the employees while [Mr King] was away ".[79]
2. In his second affidavit, Mr Shirmohammadi appears to refer to this part of Mr King's affidavit as follows:[80]

Regarding the meeting arranged due to the production planner quitting, I wish to clarify that I took the initiative to organise it, not because Mr King delegated it to me, but because it was necessary for the smooth operation of the department. Mr King often communicated through Greg and Amy, and I was fulfilling my duties regardless of his direct involvement. The positioning of my name on the document is not indicative of Mr King's delegation of responsibilities.

1. From this evidence, it appears Mr Shirmohammadi accepts there was a meeting; and he accepts that Mr King had drawn something on a whiteboard and, on the top left had, Mr King had written Mr Shirmohammadi's name. Mr Shirmohammadi, however, says that the meeting was called "due to the production planner quitting". Mr Shirmohammadi does not set out his recollection of the meeting, or his recollection of what he understood was the purpose of the meeting, or what he understood by Mr King's having included Mr Shirmohammadi's name on the whiteboard. Mr King's having written Mr Shirmohammadi's name at the top left hand corner of the whiteboard is a basis for inferring that Mr King intended that Mr Shirmohammadi would manage employees while Mr King was on leave; but I am not prepared to find that Mr Shirmohammadi understood Mr King to have so intended.

6 April 2023 - conversation between Mr King and Mr Robinson

1. According to Mr King, on or about 6 April 2023, while driving home from work, he received a telephone call from Mr Robinson and had a conversation with Mr Robinson during which the following words were spoken:[81]

GR (Mr Robinson): "Matt just had another meltdown. He burst into my office and rattled off a bunch of rubbish, calling Amy a stupid bitch and said she could run the place because he wouldn't be here".

AK (Mr King): "Far out, more drama we don't need. I'll deal with it when I get back."

1. Mr Robinson, in his affidavit, deposes to having a telephone conversation with Mr King to substantially the same effect:[82]

GR (Mr Robinson): "Matt just blew up, He came into my office swearing his head off, saying 'I am not fucking putting up with this bullshit' and calling Amy a 'stupid bitch'. Things need to be sorted out; we can't keep working like this."

AK (Mr King): "I'll deal with it when I come back."

1. In his evidence in chief, Mr Robinson said that this part of his affidavit was incorrect to the extent it includes the words "stupid bitch"; Mr Robinson said that the correct words are "fucking bitch".[83]
2. Mr Robinson says he had the conversation with Mr King after the following occurred:[84]

During one meeting in or about April 2023, I observed Mr Shirmohammadi constantly interrupt Ms Borgman, who continued to give her opinion despite Mr Shirmohammadi treatment of her. After the meeting, he stormed into my office and said words to the effect of, "I am not fucking putting up with this bullshit anymore". He briskly walked towards me, leaned over my desk, pointed his finger at me, and said words to the effect of, "Amy is a fucking bitch". I was alone in the office. Due to Mr Shirmohammadi's body language, which I perceived to .be threatening; I responded with words to the effect of; "You might want to back up there a bit mate, maybe we should go outside". Mr Shirmohammadi continued swearing and complaining about office staff. I then said words to the effect of "Everything we keep trying to do, you say no to, you keep putting up roadblocks .... We need to be a 'yes' company. You don't listen to people, you don't talk to people that can help you, the ladies are trying to help you with all the experience they have." Mr Shirmohammadi responded in words to the effect of "This is bullshit" and walked away.

1. In their counsel's closing written submissions, the respondents submit that it was at the management meeting of 6 April 2023 that Mr Robinson observed Mr Shirmohammadi constantly interrupting Ms Borgman; and it was after that meeting that Mr Shirmohammadi stormed into Mr Robinson's office and said and did the things Mr Robinson deposes Mr Shirmohammadi said and did.[85] The evidence does not support that submission. Mr King does not in his account of the management meeting refer to Mr Shirmohammadi constantly interrupting Ms Borgman; and there is nothing in Mr Robinson's account of the meeting to which he deposes which suggests the meeting was the management meeting to which Mr King refers.
2. Mr Shirmohammadi does not in any of his affidavits address this part of Mr Robinson's affidavit. In his second affidavit, however, Mr Shirmohammadi appears to refer to the incident recounted by Mr Robinson when responding to paragraphs 29 and 31 of Mr King's affidavit:[86]

Paragraph 29

The characterisation of my conduct as a "meltdown" grossly misrepresents the nature of discussions about operational inefficiencies, which were exacerbated by Mr. King's absence and failure to provide support.

. . .

Paragraph 31

The incident described in the affidavit, supposedly involving inappropriate language, is entirely fabricated. On the Thursday before Good Friday, I left my car at a car wash and later received a ride from Amy to pick it up. I recall this distinctly because of her messy car. I jokingly commented on the cleanliness of her car, offering to pay for a car wash as an Easter gesture, which she accepted. Annexed hereto and marked "A" is a copy of the car wash receipt.

1. Counsel for the respondents put to Mr Shirmohammadi that he said to Mr Robinson the matters Mr Robinson in his affidavit deposes Mr Shirmohammadi said to him that led Mr Robinson (on his evidence) to telephone Mr King.[87] The cross-examination, however, was premised on the matters to which Mr Robinson deposed having occurred after Mr Shirmohammadi's conversations on 14 April 2023 concerning Mr Patel's wages to which I refer below. That premise is inconsistent with Mr Robinson's evidence. On Mr Robinson's evidence, Mr Shirmohammadi met with Mr Robinson after a meeting at which Mr Robinson was present. Mr Robinson was not present during the discussions between Mr Shirmohammadi and Ms Borgman on 14 April 2023 about Mr Patel's wages. In any event, Mr Shirmohammadi denied he used words Mr Robinson says he used.
2. Apart from asking Mr Robinson whether Mr Shirmohammadi stated to Mr Robinson, not to Ms Borgmann, that Ms Borgman was a "stupid bitch",[88] counsel for Mr Shirmohammadi did not challenge Mr Robinson's evidence of his encounter with Mr Shirmohammadi; and counsel did not challenge Mr Robinson's evidence of his subsequent telephone conversation with Mr King.[89] Counsel also did not challenge Mr King's evidence of his conversation with Mr Robinson. In closing submissions, however, counsel referred to the discrepancy between what Mr King recalls Mr Robinson reported to him on 6 April 2023, and what Mr Robinson recalls he reported to Mr King in the conversation. Mr Robinson says that he told Mr King that Mr Shirmohammadi called Ms Borgman "a fucking bitch", while Mr King says that Mr Robinson told him Mr Shirmohammadi called Ms Borgman a "stupid bitch".[90] Whether Mr Robinson reported Mr Shirmohammadi's having stated Ms Borgman was a "stupid bitch" or a "fucking bitch", however, does not much alter the character of what Mr Robinson reported Mr Shirmohammadi said to him.
3. I accept Mr Robinson's evidence, and therefore find that Mr Robinson participated in a meeting with Mr Shirmohammadi and Ms Borgman; that he observed Mr Shirmohammadi constantly interrupting Ms Borgman, who continued to give her opinion despite those interruptions; and that, after that meeting, Mr Shirmohammadi entered Mr Robinson's office and said, "I am not fucking putting up with this bullshit anymore", and Mr Shirmohammadi briskly walked towards Mr Robinson, leaned over Mr Robinson's desk, pointed his finger at him, and said words to the effect of, "Amy is a fucking bitch". I also accept the evidence of Mr Robinson and Mr King, and therefore find, that on about 6 April 2023 Mr Robinson telephoned Mr King and told Mr King that Mr Shirmohammadi had burst into Mr Robinson's office saying, among other things, that Ms Borgman "is a stupid bitch". I also find that Mr King believed what Mr Robinson told him.
4. The findings I make in the previous paragraph are supported by the following evidence Mr Shirmohammadi gave under cross examination:

During your time at MMP, you had an issue with a woman by the name of Ms Amy Borgen. Do you remember that?‑‑‑I didn't have any issue with anybody.

You did not like Ms Borgen's style at the firm - sorry - at the company. That is right, isn't it?‑‑‑I was concerned about a lot of mistakes with safety and HR, and we had a - I had a professional disagreement with her.

You had a what agreement? Sorry?‑‑‑Professional disagreement at the workplace with her, in terms of the ‑ ‑ ‑

She was in the role of HR, wasn't she?‑‑‑She was almost everywhere, and Mr King asked me, "Just come find her. It is just a couple of areas", because she was almost everywhere. That was his instruction to me.

She was someone who had come from the previous part of the company upon its acquisition, hadn't she? She had been there for a long time?‑‑‑Yes. Correct.

She knew how the factory operated, didn't she?‑‑‑No

And you see there that she lists a number of things, that:

She knew - well - well, she was everywhere. You agree with that?‑‑‑Yes. Correct.

And she had knowledge about the company and its operations. Do you agree with that?‑‑‑She had knowledge about the business in general, but she didn't know how to run the business.

Isn't it your view that you thought you knew more about how to run the company than her?‑‑‑Yes, because I have been working in the chemical industry almost 20 years.

And you felt that she was getting in the way of you being able to operate your role?‑‑‑No. I was coaching her to - in the right direction.

You were coaching her, were you?‑‑‑Yes.

1. It is apparent from this evidence that Mr Shirmohammadi had what he called a "professional disagreement" with Ms Borgman; Mr Shirmohammadi believed that Ms Borgman did not know how a factory operated, and did not know how to run a business. Yet the email she sent on 13 April 2023 (to which I refer in the following paragraph) indicates that Ms Borgman had a direct involvement in the MMPL business's operations, a fact Mr Shirmohammadi acknowledges in the evidence he gave that Ms Borgman "was everywhere". Mr Shirmohammadi's negative views of Ms Borgman, when set against Ms Borgman's active participation in the MMPL business's operations, increases the probability that Mr Shirmohammadi would have spoken over Ms Borgman, and would have expressed his frustration in the manner he did at Ms Borgman's continued involvement in those operations.

1. At 7.00 am on 13 April 2023 Ms Borgman sent the following email to Mr Shirmohammadi, which she copied to Mr King:[91]

With Hamed [Assifi] and Vipal [Patel], there is a gap with ordering and production.

We will run out of gloss black caps today, we will not be able to finish the S500 brake or run any products with this cap. until more come in. . . .

Vipal and Hamed need to communicate more in order to run product. Two main issues with this happening are that the lines are down and also the blenders vats and IBCs are tied up until components or raw materials come in which means they may not be able to make product we do have everything for.

I am only finding out about these gaps as the staff are telling me, I am helping Vipal but on the assumption he has the components under control with Hamed, I may need to get a little more involved for a while? Sam [Norman] is still not copied in on a lot to do with ordering. If it hasn't been done in the last week someone may need to get a list together of the main components and raw materials to start, check what we have against whet we intend to run and over order if we have to.

I think part of the problem at the moment is 'tunnel visions' with ordering and tunning. We are focusing mainly on one thing at a time, on cans the no [sic] 20L drums, then no [sic] this or that, instead of looking at everything that needs to be ordered in order to run the cans or drums etc.

Please do not just pull Hamed and/or Vipal aside this week about it. I think a discussion with Andrew when he returns is the best idea, before anyone is spoken to. . . .

1. In his second affidavit, Mr Shirmohammadi referred to the paragraph of Mr King's affidavit that referred to Ms Borgman's email, and said the following:[92]

The accusation of poor management and inconsistency stems from a lack of understanding of the operational challenges we faced. External distractions from HR and sales often interfered with our daily operations, leading to misjudgements and misunderstandings. The decision to remove Amy from operations was made after Mr King expressed concerns about her performance and lack of focus on her responsibilities, as discussed in his approval of Amy's email. His intention to dismiss both sisters was a result of their inability to fulfill their roles effectively, not due to any personal bias or prejudice.

1. In evidence given under cross-examination, Mr Shirmohammadi accepted that, as Ms Borgman stated in her email, there was a gap with ordering and production, that MMPL was going to run out of gloss black caps, would not be able to finish the S500 brake run products with this cap until more come in; and that these matters fell within his responsibility.[93] Mr Shirmohammadi did not accept, however, that this failure had occurred because he had not performed his role correctly; Mr Shirmohammadi said that MMPL did not have "a proper system";[94] and that "the business didn't have a proper structure".[95] A little later in his cross-examination, Mr Shirmohammadi was asked about Ms Borgman having stated in her email that there were "no cans on the 20-litre drums":[96]

And you see there that she lists a number of things, that:

Do you see that?‑‑‑Yes. Yes. That could be like 100 different things. We weren't sure at that time. Every day at MMP, that was like an ongoing base. It was nothing unusual.

It was - it was your job to remedy these problems, wasn't it?‑‑‑It is not possible, you know? You can't set up people with something if it is not - it is not possible to do that.

So you say you couldn't possibly perform your role ‑ ‑ ‑?‑‑‑Nobody could ‑ ‑ ‑

‑ ‑ ‑ is that right?‑‑‑ ‑ ‑ ‑ do that. Nobody.

The person that is there now can't do it?‑‑‑Nobody.

Right. Not the person that replaced you? Not possible?‑‑‑It is impossible. You know? Always you are going to have some issue unless you have a proper system.

1. Mr King responded to Ms Borgman's email by email sent at 8.22 am on 13 April 2023 in which he requested that "components be added to the daily 7 am team meeting".[97]

Mr Shirmohammadi's interactions with Ms Borgman on 14 April 2023

1. According to Ms Borgman,[98] in the morning of 14 April 2023 Mr Shirmohammadi approached her and asked if he could speak to her privately outside. After they moved outside, Mr Shirmohammadi said Mr Patel had not been paid properly, and that it needed to be sorted out. Ms Borgman said she understood, but she would not do anything without Mr King's authority. After Ms Borgman returned to her desk, Mr Shirmohammadi approached her a second time, this time with Mr Patel. Mr Shirmohammadi leaned over Ms Borgman's desk and, with a raised voice, said that Mr Patel's pay needed to be sorted. Ms Borgman felt extremely uncomfortable, intimidated, and found the exchange highly inappropriate.
2. Mr Shirmohammadi does not address this part of Ms Borgman's affidavit in any of his affidavits. He was, however, cross-examined about the matters to which Ms Borgman deposed. Mr Shirmohammadi accepted he had a "5/10-minute discussion, probably" with Ms Borgman about Mr Patel's salary; but he denied he followed Ms Borgman to her desk; or that he leaned over her desk; or that he raised his voice telling Ms Borgman that Mr Patel's pay needed to be sorted.[99] It is unnecessary to make any finding about whether Mr Shirmohammadi acted in the way Ms Borgman deposes he did. I find, however, that, as she stated in the email she sent to Mr King on 14 April 2023 (to which I will shortly refer), Ms Borgman felt uncomfortable when Mr Shirmohammadi spoke to her about Mr Patel's salary.
3. At 11.44 am on 14 April 2023 Mr Shirmohammadi sent to Ms Borgman an email requesting that Ms Borgman pay the afternoon shift loading to Mr Patel for the time he worked on the afternoon shift. Mr Shirmohammadi said that, "[a]s discussed", Mr Patel had only taken one day off; for the second day he was late for a few hours because of a car accident, and he made up those hours while he worked the afternoon shift. At 12.01 pm on the same day Ms Borgman sent an email to Mr King by which she onforwarded Mr Shirmohammadi's email to Ms Borgman.[100] In her email to Mr King, Ms Borgman said:

I am copying Sam mainly as she does wages, also because she told me to e-mail about this. I don't necessarily want Matt to see this please.

Matt came and spoke to me about this and then grabbed Vipal to discuss further before he sent the below email. He spoke to me on my own outside at first, Vipal came and joined the discussion when I came back in with Matt to confirm dates off. Vipal wanted to point out it wasn't two whole days. It was one day and then the other he came in at 11.00 am as he had a car accident that morning. So it should have been 1.5 days off, not 2.

. . . .

How am I meant to know what hours he has made up for coming in at 11.00am and doing a half day when he doesn't clock in and out and no one discusses or confirms time is being made up?

This is why everyone should clock in and out every day, so I can keep track of these things, not matter whether they are hourly rate or salary.

I feel a little uncomfortable right now. Unless you told him I was blind copied to your reply the other day I do not believe he should have pulled me aside and spoke to me more than asking to confirm the dates I claimed Vipal to be off so he could revisit the matter with you.

1. Mr King says that it was at "this time", namely, 14 April 2023, that he decided Mr Shirmohammadi "was not the right fit for "MMP Industrial" and that he "should terminate his employment while he was on probation".[101]

17 April 2023 - Mr King terminates Mr Shirmohammadi's employment

1. According to Mr King, at 8 am on 17 April 2023 he arrived at the office and was greeted by Ms Borgman and had a conversation as follows:[102]

AK (Mr King): Where's Matt?

AB (Ms Borgman): Not in yet.

AK (Mr King): What do you mean?

AB (Ms Borgman): He's been coming in late every day.

AK (Mr King): What about team meetings?

AB (Ms Borgman): He hasn't attended a single one.

1. Mr Shirmohammadi addressed this part of Mr King's affidavit as follows:[103]

My work hours, typically starting between 7:30 and 8:30 am, are adjusted based on operational needs and personal commitments, such as dropping off my children. Most of the team follows a similar schedule, with the afternoon shift overseen to ensure effective communication and understanding of activities. Any insinuation that my later start time was an issue should have been addressed directly with me. Also, I have worked weekends without additional compensation, as instructed by Mr King, to monitor site activities.

1. Mr Shirmohammadi does not dispute he did not attend team meetings, as Ms Borgman stated to Mr King. I therefore find that Mr Shirmohammadi did not attend any team meeting while Mr King was away on leave.
2. Again according to Mr King, later in the morning Mr King located Mr Shirmohammadi in one of the warehouses. Mr King asked Mr Shirmohammadi to have a chat at the front lawn. When Mr King and Mr Shirmohammadi arrived on the front lawn, they had a conversation in which the following words were spoken:[104]

AK (Mr King): I want you to finish up immediately. I've been so unimpressed with your performance and communication style.

MS (Mr Shirmohammadi): That's so unfair. You're within your rights, but it's unfair.

(AK) Mr King: We had that team meeting and discussed roles and responsibilities before I left, and you didn't turn up to a single meeting.

(MS) Mr Shirmohammadi: Amy was there, what am I meant to do?

(AK) Mr King: You're the highest paid and most qualified. I drew up the matrix with everyone's name and every task that had to be done for the week I was gone.

(MS) Mr Shirmohammadi: Do you mind if I can say goodbye to some people?

(AK) Mr King: That's fine.

1. Mr King observed Mr Shirmohammadi say goodbye to several employees, after which he got into his car. As he was doing so, Mr Shirmohammadi said: "You're going to be hearing from me. I'm well connected in this industry, you're going to regret this".[105]
2. In his closing oral address, counsel for Mr Shirmohammadi submitted that Mr King "was a highly problematic witness"; that the Court should not accept his evidence except to the extent it is supported by contemporaneous evidence;[106] and that there were features of Mr King's evidence which "we say are circumstances in which the court should be satisfied that Mr King would invent excuses in order to cover up a failure to comply with the" FW Act.[107] Notwithstanding this attack on Mr King's credibility, counsel for Mr Shirmohammadi did not challenge Mr King's evidence of the meeting he had with Mr Shirmohammadi at which he terminated Mr Shirmohammadi's employment. That is significant because, on his evidence, Mr King informed Mr Shirmohammadi of the reasons for which he decided to terminate Mr Shirmohammadi's employment, and Mr King has otherwise given no direct evidence of the reasons for which he decided to terminate Mr Shirmohammadi's evidence.
3. It is not, however, surprising that counsel for Mr Shirmohammadi did not challenge the evidence Mr King gave of the meeting during which he terminated Mr Shirmohammadi's employment; and that is because Mr Shirmohammadi does not identify any part of Mr King's evidence he denies or disagrees with or cannot recall. In his second affidavit Mr Shirmohammadi addresses Mr King's account of their meeting on 17 April 2023 as follows:[108]

Details of my last day were previously communicated to Mr King in an email dated 17 April 2023 sent by me. Any discrepancies or inaccuracies in this regard should be clarified through that correspondence. Annexed hereto and marked "C" is a copy of the said email.

1. The email to which Mr Shirmohammadi refers is the email he sent to Mr King at 5:20 pm on 17 April 2023.[109] The email began as follows:

I refer to our conversation at the office at 11 am this morning.

You asked me to finish up today because of many issues at the factory. The issues you brought up were components that were never previously brought to my attention to have been of any concern to you such as that you find the project status to be a mess and that I did not attend a 7am meeting last week. You asked me to finish up today and in less than 10 minutes from when we spoke, I was out the door.

1. Mr Shirmohammadi then said he "would like to address the following matter[s] you brought up". These were the following:

(a) The first came under the heading "The Meeting Daily at 7 am to review planning". Mr Shirmohammadi said he had organised the 7 am meeting "last week" with Mr King, but it was Mr Shirmohammadi's understanding that he did not need to attend. Mr Shirmohammadi further said that he was staying back in the afternoon shift, and therefore it did not seem necessary for him to attend. Mr Shirmohammadi further said that he "explained to you this morning" that if Mr King wanted Mr Shirmohammadi to attend the meeting he would have done so gladly; but Mr King "never indicated this to" Mr Shirmohammadi.

(b) The second matter came under the heading "Projects". Mr Shirmohammadi referred to two things that Mr King said to Mr Shirmohammadi in the morning of his dismissal. One related to Mr Cerone, the production planner, who had resigned the previous week. Mr Shirmohammadi said that Mr King said that the primary item in Mr Shirmohammadi's contract was planning, and Mr King felt Mr Shirmohammadi did not take over Mr Cerone's responsibilities properly. The second thing Mr Shirmohammadi says Mr King said to him was that nothing had been done with the project, as "Chris from maintenance had told" Mr King. Mr Shirmohammadi made a number of statements in relation to these matters, including Mr King's having not discussed them with Mr Shirmohammadi before deciding to terminate his employment.

(c) The third matter came under the heading "Inesh". Mr Shirmohammadi referred to Mr King having brought up that one of the warehouse staff did not perform well. Mr Shirmohammadi said that he had discussed the issue with Mr King who said he was satisfied with Mr Shirmohammadi's response.

(d) The fourth matter came under the heading "My Issues". Here Mr Shirmohammadi said that Mr King's judgments and reasons for letting him go "are all based on people who are not fully privy to the details of the projects and whose areas of expertise do not align with the areas they are bring to your attention [sic]". Mr Shirmohammadi continued:

This has been brought up several times by other team members, and you have been asked as a business owner and manager to have better communication with your staff but nothing has been done on this front.

(e) The fifth matter came under the heading "My Contributions in the last 6 months". Mr Shirmohammadi sets out his achievements while employed by MMPL, and refers to his having warned Mr King about unreasonably pushing salespeople, and having ignored Mr Shirmohammadi's advice that MMPL needed to provide staff with a contract. Mr Shirmohammadi also said:

Unfortunately, instead of seeing how far ahead we have come, you instead turned this into only seeing a slight improvement despite what has been achieve in such a short time. In turn, you asked me to leave the business without any prior discussion or warning about my actions or performance despite always noting that if there is anything whatsoever to let me know. This also demonstrates that you did not appreciate the long-term benefits of my initiatives and work performance. Even with that being said, I would have been happy to take and implement feedback if you had given me any, but you chose not to until today when you ended my employment.

(a) Mr Shirmohammadi does not in his email refer to Mr King having in terms stated he was "unimpressed with your performance", as Mr King deposes he said to Mr Shirmohammadi. That, however, is the clear effect of the matters Mr Shirmohammadi's in his email says Mr King had said to him; and Mr Shirmohammadi does not deny Mr King said he was unimpressed by Mr Shirmohammadi's performance. I therefore find that Mr King said to Mr Shirmohammadi that he was unimpressed with Mr Shirmohammadi's performance.

(b) Mr Shirmohammadi does not in his email refer to Mr King having in terms stated he was "unimpressed with your . . . communication style". Mr Shirmohammadi, however, does not deny that Mr King said to him words to that effect; and Mr King's having so stated is not inconsistent with the matters Mr Shirmohammadi in his email says Mr King said at the time he terminated Mr Shirmohammadi's employment. I therefore find that Mr King said to Mr Shirmohammadi that he had been unimpressed, not only with his performance, but also with his communication style. My finding is reinforced by my findings that on about 6 April 2023 Mr Robinson telephoned Mr King and told him that Mr Shirmohammadi had burst into Mr Robinson's office saying, among other things, that Borgman "is a stupid bitch", and that Mr King believed what Mr Robinson told him. Mr Shirmohammadi's communication Mr Robinson reported to Mr King was without doubt inappropriate, and Mr King would have so viewed it. That increases the probability that Mr King would have alluded to that communication at the time he terminated Mr Shirmohammadi's employment by stating he was not impressed with Mr Shirmohammadi's communication style.

(c) In his email Mr Shirmohammadi referred to Mr King's criticising Mr Shirmohammadi for not attending a 7 am meeting, while in his affidavit Mr King deposes that he said "[w]e had that team meeting and discussed roles and responsibilities before I left, and you didn't turn up to a single meeting". This does not represent any inconsistency between what Mr King deposed and what Mr Shirmohammadi stated in his email; and Mr Shirmohammadi has not denied that Mr King told him that "[w]e had that team meeting and discussed roles and responsibilities before I left, and you didn't turn up to a single meeting". I therefore find that, at the time he terminated Mr Shirmohammadi's employment, Mr King said to Mr Shirmohammadi that there was a team meeting where roles and responsibilities were discussed, but Mr Shirmohammadi did not turn up to a single meeting.

1. I therefore find that in their meeting of 17 April 2023 Mr King said to Mr Shirmohammadi that he wanted Mr Shirmohammadi to finish up immediately; he was unimpressed with Mr Shirmohammadi's performance and communication style; and that Mr Shirmohammadi failed to attend a team meeting or team meetings.
2. In her affidavit Ms Borgman says that on about 17 April 2023 she had a conversation with Mr King to the following effect:[110]

AK (Mr King): I need someone to be the Operations Manager but Matt's the wrong person. He's disrupting the company instead of benefitting it.

AB (Ms Borgman): I've already given you my opinion. He separated the offices and production isn't working. You've got 78 people and you're paying 20 people to clean.

1. Ms Borgman says she does not recall whether she had this conversation with Mr King before or after the termination of Mr Shirmohammadi's employment.[111] Given the content of the conversation, if it occurred, it could only have occurred before Mr King terminated Mr Shirmohammadi's employment.
2. I have not relied on this part of Ms Borgman's evidence in the findings I have made about what Mr King told Mr Shirmohammadi in their meeting of 17 April 2023. If I had relied on that evidence, however, it would have reinforced my findings because what Ms Borgman says Mr King said to her, and in particular, that Mr Shirmohammadi had been "disrupting the company instead of benefitting it", is consistent with what Mr King says he told Mr Shirmohammadi at the meeting on 17 April 2023.

1. According to Mr King, after he terminated Mr Shirmohammadi's employment, Ms Borgman asked him whether Mr King had given Mr Shirmohammadi a letter, noting that Mr King was meant to have done so. On 26 April 2023 Mr King contacted his solicitors regarding a termination letter, and about Mr Shirmohammadi possibly making a claim. On 27 April 2023, Mr King sent to Mr Shirmohammadi the following letter (Termination Letter):[112]

As you know, you commenced employment on 31 October 2022 in the Operations Manager role which was subject to a six month probationary period.

This is to confirm that I met with you on 17 April 2023 to inform you of the company's decision to terminate your employment during your probationary period due to your inability to meet the expectations of your role and due to inappropriate workplace conduct.

As you know, I had a number of meetings with you during your probationary period to address both your performance and workplace conduct but, unfortunately, you were not able to address either concern to the company's satisfaction.

I informed you, during our meeting on 17 April 2023, that the company had determined that you were not suitable for permanent employment in the Operations Manager role and had made the decision to terminate your employment pursuant to your employment agreement.

This letter is to confirm that you were notified that your employment was terminated effective the close of business on 17 April 2023. This is to further confirm that the company has processed your payment in lieu of one week's notice of termination along with a payment of any outstanding pay and accrued leave owing to you on 27 April 2023.

Lastly, you are reminded that you are required to comply with all post-employment obligations contained in your employment agreement.

Please contact me should you have any questions regarding the above.

We wish you the best in your future endeavours.

1. The Termination Letter was incorrect to the extent that it stated that Mr King had a number of meetings with Mr Shirmohammadi during his probationary period to address both his performance and workplace conduct but, that Mr Shirmohammadi was unable to address either concern to the MMPL's satisfaction. That the Termination Letter contained incorrect statements, however, is not relevant to the findings I have made, or to the matters on which I relied in arriving at those findings. The matters on which I relied are contemporaneous documents, and the extent to which Mr Shirmohammadi has not denied or has otherwise challenged evidence Mr Ming, Mr Robinson, or Ms Borgman gave.

1. On 25 May 2023 Mr Shirmohammadi's solicitors sent a letter to MMPL attaching a notice to produce all payslips MMPL issued to Mr Shirmohammadi, all annual leave records MMPL keeps in accordance with reg 3.36 of the Fair Work Regulations (2009) (Cth), and all records of superannuation contributions MMPL made.[113] MMPL's solicitors responded by letter dated 8 June 2023. The letter attached "pay advices" from MMPL for payments made each week from 28 October to 13 April 2023, and "pay advices" from AUPL for payments made from November 2022 to April 2023.[114] The AUPL pay advices record amounts for superannuation, but each is described as "SGC - Fund Details Pending".
2. On 13 June 2023 MMPL paid $3,856.20 into Mr Shirmohammadi's superannuation account, and no further payments have been made to that account.[115]
3. On 16 June 2023 Mr Shirmohammadi's solicitors sent an email to MMPL's solicitors in which the following claims were made.

(a) The sum of the amounts represented in the pay advices reveal a shortfall of $8,330 in the amount MMPL's was obliged to pay Mr Shirmohammadi for the period 31 October 2022 to 17 April 2023.

(b) MMPL failed to make $4,078.84 worth of superannuation contributions.

(c) MMPL failed to pay accrued but untaken annual leave in the amount of $4,390.84.

(d) MMPL was required, but failed, to give Mr Shirmohammadi three months' notice or three months' pay in lieu of notice.

1. Mr King says that on 16 June 2023 he received from his solicitors the email Mr Shirmohammadi's solicitors had sent to MMPL's solicitors, says that he sent the letter to Mr Phillips, of Signum Advisers (who I infer were MMPL's accountants), and requested Mr Phillips to "look into it". On 19 June 2023 Mr Phillips sent an email to Mr King in which he noted that all processing in "Tencia" (being an accounting software application) had been paid up to Wednesday 12 April 2023, but given that Mr Shirmohammadi's employment had been terminated on 17 April 2023, MMPL had not paid Mr Shirmohammadi for three days' work, being$1,917.52 . Mr Phillips also said that Mr Shirmohammadi ought to have been paid accrued but untaken annual leave of $4,390.84, and that there had been a superannuation shortfall of $222.62.[116] Mr King forwarded Mr Phillips' email to MMPL's solicitors.
2. On 20 June 2023, MMPL's solicitors sent an email to Mr Shirmohammadi's solicitors which is marked "without prejudice". At the hearing MMPL objected to the admission of this email on the ground they fell within the without prejudice privilege provided for by s 131(1) of the Evidence Act 1995 (Cth). I reserved my decision on the objection, after satisfying myself that my so doing would not affect the manner in which counsel intended to conduct their respective cases. I am not satisfied s 131(1) applies, because the parties were not in dispute about the matters to which the email related. In their email sent on 20 June 2023, MMPL's solicitors said MMPL's accountant determined that Mr Shirmohammadi had been underpaid by $1,917.52; MMPL had not paid Mr Shirmohammadi accrued but untaken annual leave in an amount of $4,390.84; and MMPL still owed Mr Shirmohammadi superannuation contributions of $222.64.[117]
3. On 20 June 2023 Mr Shirmohammadi's solicitors sent an email to MMPL's solicitors in which they agreed that MMPL had underpaid Mr Shirmohammadi $1,917.52, but stated they disagreed with "the basis of the calculation"; that MMPL had failed to pay Mr Shirmohammadi $4,390.84 for accrued but untaken annual leave; and that MMPL had failed to pay Mr Shirmohammadi superannuation contributions in the amount of $222.64. Mr Shirmohammadi's solicitors confirmed that Mr Shirmohammadi maintained his position that he was entitled to three months' notice.
4. Mr King says that on 21 June 2023 he "personally processed" a payment to Mr Shirmohammadi of $10,012 which comprised the following amounts:[118]

(a) $1,917.52 for Mr Shirmohammadi's final three days of employment on 13, 14, and 17 April 2023;

(b) $4,390.84 in accrued but untaken annual leave, being 47.94 hours;

(c) $222.64 in unpaid superannuation contributions; and

(d) $3,481 for one week's pay in lieu of notice.

1. In his statement of claim Mr Shirmohammadi alleges that MMPL paid to Mr Shirmohammadi for each of the months of October, November, and December 2022, and for each of the months of January, February and March 2023, in which he performed work amounts that were less than the amounts to which he was entitled to be paid as follows:

1. Mr Shirmohammadi claims that by failing to pay each month in full the amounts to which he was entitled to be paid, MMPL contravened s 323(1) of the FW Act, which provides:

An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

1. In their defence the respondents admit that Mr Shirmohammadi was underpaid $311.50 for October 2022, but otherwise deny MMPL underpaid Mr Shirmohammadi for the other five months. In closing address, however, counsel for the respondents submitted that, there having been a contravention of s 323(1) "at the start", it "continues to be a contravention"; but that such continuing contravention did not matter because, under s 557(2) of the FW Act, s 557(1) of the FW Act applied to contraventions of s 323(1) that occur in the circumstances provided for by s 557(1) of the FW Act. That subsection provides:

For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

1. I considered some of the principles relating to s 557(1) of the FW Act in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor.[119] After reviewing a number of cases, I said:[120]

Two firm principles may be drawn from the cases to which I have referred, one negative, and one positive. The negative principle is that s.557(1) of the FW Act does not apply to contraventions of different terms of modern awards, even if such contraventions arise out of a course of conduct, and even if the contraventions affect only one person. The positive principle is that s.557(1) of the FW Act applies to the multiple contravention of the one term of a modern award, even where the contravention may affect two or more persons. These principles may be extrapolated to contraventions of civil penalty provisions that do not involve the contravention of a term of a modern award. Just as s.557(1) of the FW Act does not apply to the contravention of two or more separate terms of an award, so too does it not apply to contraventions of two or more separate civil remedy provisions that do not involve a breach of a term of an award. On the other hand, s.557(1) of the FW Act applies to multiple contraventions of a single civil penalty provision, even though the contraventions may affect two or more persons.

These principles, important as they are, are limited. The judgments to which I have referred do not explicitly consider the meaning of "course of conduct". From the words themselves, it may be said that "course of conduct" denotes a series of acts that are connected in some way; and given that it is conduct - namely, acts or omissions of a person - that is required to be connected in some way, the required connection must be sought, at least in substantial part, in the state of mind that the person engaging in the conduct has in relation to the conduct. That a contravener's state of mind is relevant to determining whether conduct he or she has engaged in is a "course of conduct" is supported by the judgment of Nettle J in Berlyn v Brouskos. In that case, his Honour considered the meaning of "course of conduct" as that expression appears in the definition of "stalking" given in s.21A(2) of the Crimes Act 1958 (Vic). His Honour concluded that "course of conduct" for the purposes of that subsection is a course of conduct as prescribed in the California Penal Code, namely, "a pattern of conduct composed of a series of acts over a period of time however short, evidencing a continuity of purpose".

Although the question whether conduct amounts to a "course of conduct" is to be determined, at least substantially, by reference to the person's state of mind, proof of that state of mind may, and usually will be inferred from objective matters existing outside that person's mind. Of importance would usually be whether the relevant conduct consists of an omission, the number of acts or omissions that are claimed to constitute the course of conduct, the time that separates each act or omission from the other, and whether the acts or omissions are similar or dissimilar, and, if dissimilar, whether they are jointly necessary to the achievement of the conduct that constitutes the contravention.

1. I am satisfied that for each of the months of October, November, and December 2022; and for each of the months of January, February, and March 2023, MMPL failed to pay Mr Shirmohammadi in full amounts for work he performed during each of those months. I am also satisfied, however, that MMPL's contraventions arose out of a course of conduct within the meaning of s 557(1), with the consequence that MMPL's failures to pay Mr Shirmohammadi in full in each of those months for the work he performed in those months constituted a single contravention of s 323(1) of the FW Act.

FAILURE TO PAY ACCRUED BUT UNTAKEN ANNUAL LEAVE

1. Subsection 87(1) of the FW Act provides that employees (other than casual employees) are entitled to the amount of paid annual leave specified in that subsection. Relevant to Mr Shirmohammadi is the annual leave provided for by s 87(1)(a), namely, 4 weeks. Subsection 87(2) of the FW Act provides:

An employee's entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

1. Subsection 90(1) of the FW Act requires an employer to pay annual leave when an employee takes a period of paid annual leave; and s 90(2) deals with the employer's obligation to pay annual leave that has accrued by the time the employee ends his or her employment with the employer. That subsection provides:

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

1. Next, there is s 44(1) of the FW Act, which provides that an employer "must not contravene a provision of the National Employment Standards" (NES). Divisions 3 to 12 of Part 2.2 of the FW Act constitute the NES. Sections 87 and 90 are contained in Division 6 of Part 2.2 of the FW Act. Thus, a failure by an employer to make a payment required by s 90(2) constitutes a contravention of a NES and, therefore, constitutes a contravention of s 44(1) of the FW Act.
2. The respondents admit that, at the time MMPL terminated Mr Shirmohammadi's employment, it failed, contrary to s 90(1) of the FW Act, to pay to Mr Shirmohammadi an amount for annual leave which he had accrued, but which he had not taken.

1. The respondents admit that MMPL failed to issue payslips in relation to the payments AUPL made on each of 16 November 2022, 17 December 2022, 17 January 2023, 19 February 2023, 17 March 2023, and 16 April 2023 (AUPL payments). That means that in relation to each of these payments MMPL contravened s 536(1) of the FW Act, which provides that an "employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work".
2. Subsection 557(1) of the FW Act applies to contraventions of s 536(1). I am satisfied that MMPL's failure to provide the payslips arose out of course of conduct within the meaning of s 557(1), with the consequence that MMPL's failures to provide the payslips for each of the AUPL payments constituted a single contravention of s 536(1) of the FW Act.

1. As I noted above, under cover of a letter dated 8 June 2023 the respondents' solicitors provided to Mr Shirmohammadi's solicitors (among other things) "pay advices" from AUPL for payments made from November 2022 to April 2023.[121] In his statement of claim Mr Shirmohammadi alleges the pay advices constituted payslips MMPL provided purportedly pursuant to s 536(1) of the FW Act which MMPL knew to be false in two ways. The first was that each pay advice incorrectly specified Mr Shirmohammadi's employer; and the second was the representation alleged to be conveyed by the words "SGC - Fund Details Pending", namely, that the superannuation contribution referred to in each of the pay advices had not been paid because Mr Shirmohammadi did not provide details of the superannuation fund to which MMPL should make payments. For these reasons, Mr Shirmohammadi claims MMPL contravened s 536(3) of the FW Act, which provides that an "employer must not give a pay slip for the purposes of [s 536] that the employer knows is false or misleading".
2. The respondents admit these allegations.

FAILURE TO GIVE WRITTEN NOTICE OF DAY OF TERMINATION

1. Mr Shirmohammadi also alleges that MMPL contravened s 117(1) of the FW Act, which provides:

An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

1. The respondents admit MMPL did not comply with s 117(1), which means MMPL accepts it contravened s 44(1) of the FW Act.

1. I have set out elsewhere the relevant principles concerning the circumstances in which, under s 550 of the FW Act, a person may be taken to have engaged in another person's contravention of a civil remedy provision; and it is unnecessary to repeat in these reasons for judgment those principles.[122] Mr King admits that he was involved in MMPL's contraventions of s 44, s 117(1), s 323(1), s 536(1), and s 536(3) to the extent MMPL admits it contravened those provisions.[123]
2. As I have noted MMPL denies it failed to pay Mr Shirmohammadi for the months after October 2022. I have found, however, that MMPL failed to pay Mr Shirmohammadi in full for those months. Given the admissions the respondents have made, I am satisfied that Mr King was a person involved in MMPL's failure to pay each month the amount in full for work Mr Shirmohammadi performed.

1. Mr Shirmohammadi submits that MMPL could have terminated Mr Shirmohammadi without cause only if it had given him three months' notice. Mr Shirmohammadi submits this follows from a proper construction of cl 15 of the Employment Contract.
2. In his written submissions, Mr Shirmohammadi submits that "[t]he terms of Schedule 1" to the Employment Contract "makes a clear provision for the Termination Notice Period without distinction between the period of notice to be given by [MMPL] and that to be given by Mr Shirmohammadi".[124] In his closing oral submissions, counsel for Mr Shirmohammadi submitted as follows:[125]

(a) Clause 15.1 of the Employment Contract fell a long way short of saying that MMPL could terminate Mr Shirmohammadi's employment by the giving of notice as provided for by s 117 of the FW Act. The Employment Contract, therefore, was silent on the question of what notice MMPL could give to terminate Mr Shirmohammadi's employment.

(b) Given, however, that cl 15.3 provided for termination by either party by notice, and item 9 of the Schedule provided for a three-month notice period, the reasonable or officious bystander would conclude that the parties agreed that the Employment Contract could be terminated without cause by either party giving the other three months' notice.

1. I do not accept these submissions. Clause 15.1 in terms provided that MMPL could terminate the Employment Contract following the probationary period, or any extension of the probationary period; MMPL could terminate the Employment Contract "for any reason in accordance with the" NES. In effect, cl 15.1 provided that, on completion of the probationary period (or any extension of it), MMPL could terminate the Employment Contract without cause, provided it did so in accordance with the NES.
2. Section 117 of the FW Act is the only provision of the NES provided for in Part 2-2 of the FW Act that regulates the termination of employment; and it regulates the termination of employment by requiring the employer to satisfy two conditions or sets of conditions before an employer may terminate an employee's employment. The first is the condition provided for by s 117(1), namely, the employer must give the employee written notice of the day of termination. The second condition is that provided for by s 117(2), namely, the employer must not terminate the employee's employment unless the time between the giving of the notice and the day of termination is at least the period worked out under s 117(3) (minimum period of notice), or the employer pays the employee money in lieu of notice. The effect of cl 15.1, therefore, was that MMPL could terminate Mr Shirmohammadi's employment at any time after the probationary period (or any extension of it), and for any reason, provided, first, MMPL gave to Mr Shirmohammadi written notice of the day of termination; and second, the notice specified the minimum period of notice.
3. It is the case that MMPL did not comply with cl 15.1, and that it did not do so in two ways. First, MMPL purported to terminate Mr Shirmohammadi's employment before the six month probationary period provided for by the Employment Contract expired. Second, MMPL did not comply with s 117 in that MMPL did not give to Mr Shirmohammadi written notice of the day of termination. The only (contractual) consequence, however, of MMPL's not having complied with cl 15.1 is that MMPL terminated Mr Shirmohammadi's employment in breach of contract for which Mr Shirmohammadi would be entitled to damages for any losses he may have suffered because of the breach. Whether Mr Shirmohammadi suffered any damage would require a comparison between the position Mr Shirmohammadi in fact found himself in because of MMPL's breach of contract, and the position Mr Shirmohammadi would have been in had MMPL complied with cl 15.1 of the Employment Contract by giving Mr Shirmohammadi the written notice s 117(1) required MMPL to give. Mr Shirmohammadi has not claimed damages on this basis.
4. I also do not accept Mr Shirmohammadi's counsel's submission that cl 15.3 of the Employment Contract conferred on each of Mr Shirmohammadi and MMPL the right to terminate the Employment Contract without cause on the giving of three months' notice. Clause 15.3 operated "where notice is given by either party". That was intended to refer to the rights to terminate the contract without fault conferred on each of MMPL and Mr Shirmohammadi by cl 15.1 and cl 15.2 respectively. That is, cl 15.3 referred to the notice MMPL would have been required to give to Mr Shirmohammadi by s 117(1) of the FW Act, if MMPL were to elect to terminate the Employment Contract pursuant to cl 15.1; and to the three months' notice Mr Shirmohammadi would have been required to give MMPL, if Mr Shirmohammadi were to elect to terminate the Employment Contract pursuant to cl 15.2.
5. In his closing address, counsel for Mr Shirmohammadi referred to the judgment of Judge Humphreys in Ostle v Wilson Mining Pty Ltd.[126] In that case his Honour considered a submission that s 117 of the FW Act excludes or displaces the implied term of reasonable notice. His Honour's consideration of that question is not relevant to the construction of cl 15 of the Employment Contract. Clause 15.1 manifested an intention that the notice period MMPL would be obliged to give Mr Shirmohammadi would be no more than the notice periods provided for by s 117(3) of the FW Act, not by any notice period that may arise under an implied term for the giving of reasonable notice.
6. Mr Shirmohammadi, therefore, fails on the Failure to Give Notice claim.

CLAIM BASED ON CONTRAVENTION OF s 340(1) OF THE FW ACT

1. Subsection 340(1) of the FW Act relevantly provides:

A person must not take adverse action against another 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:

. . . .

(c) is able to make a complaint or inquiry:

(i) . . . .

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

1. I have considered elsewhere, and do not propose to repeat in these reasons, the meaning of the various elements of this definition of "workplace right".[127]
2. 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",[128] or must be an "operative or immediate reason for the action".[129]
3. 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:

If:

(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:[130]

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):[131]

[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):[132]

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 the statement of claim Mr Shirmohammadi alleges he made three classes of complaints or inquiries in relation to his employment, and therefore he exercised his workplace right on each of those three sets of occasions: The first class is Mr Shirmohammadi making complaints to Mr King in relation to work health and safety matters, as pleaded in paragraph 20 of the statement of claim;[133] the second is that on 27 February 2023 Mr Shirmohammadi complained that his pay slips only showed half his salary, and that would affect his ability to obtain a home loan;[134] and the third is that on 14 April 2023 Mr Shirmohammadi sent an email to Mr King "regarding the failure of [MMPL] to make superannuation contributions on behalf of Mr Shirmohammadi".[135]
2. In closing submissions counsel for Mr Shirmohammadi submitted that the evidence is abundantly clear Mr Shirmohammadi made complaints to Mr King in relation to work, health, and safety matters, and that these complaints related to Mr Shirmohammadi's employment;[136] that the evidence was also clear that in January 2023 Mr Shirmohammadi raised with Mr King Mr Shirmohammadi's not being provided with payslips;[137] and that on 14 April 2023 Mr Shirmohammadi sent an email requesting Mr King check with his accountant about his superannuation not having been paid.[138]
3. Counsel for Mr Shirmohammadi also submitted that I should not find that the reasons for which Mr King gave to Mr Shirmohammadi at the time he dismissed from his employment excluded as a substantial or operative factor the complaints and enquiries Mr Shirmohammadi made in relation to his employment. In support of that submissions counsel relied on the following:

(a) Counsel submitted the statements Mr King made in his email of 16 April 2023 that the superannuation owing to Mr Shirmohammadi was on the "WIP list", and that Mr King would get to it shortly, were "fictitious", and that it should be inferred Mr King was not being honest when he made those statements.[139] The basis of that submission is that "no work had been performed in terms of having [Mr Shirmohammadi] paid his superannuation".[140]

(b) The "fact that the day before [Mr Shirmohammadi] is dismissed, he raises this complaint, we say is a matter that points to this complaint being a factor".[141]

(c) There was a discrepancy between what Mr King recalls Mr Robinson reported to him on 6 April 2023, and what Mr Robinson recalls he reported to Mr King in the conversation. Mr Robinson says that he told Mr King that Mr Shirmohammadi called Ms Borgman "a fucking bitch" while Mr King says that Mr Robinson told him Mr Shirmohammadi called Ms Borgman a "stupid bitch".[142]

(d) The matters set out in Ms Borgman's email of 14 April 2023 and Mr Robinson's conversation with Mr King, being matters on which MMPL now rely as reasons for Mr King's decided to terminate Mr Shirmohammadi's employment, were not matters Mr King had previously discussed with Mr Shirmohammadi.[143]

(e) The statement contained in the Termination Letter that Mr King had a number of meetings during Mr Shirmohammadi's probationary period to address his performance and workplace conduct was incorrect; Mr King held no such meetings.[144]

(f) Mr King has not expressly denied that he decided to terminate Mr Shirmohammadi's employment because Mr Shirmohammadi made the complaints and inquiries he claims he made.[145]

1. In broad terms, the respondents submit that Mr King decided to terminate Mr Shirmohammadi's employment because of performance-related issues; and that submission is supported by the matters Mr Shirmohammadi recorded in the email he sent to Mr King on 17 April 2023.

1. Assuming Mr Shirmohammadi exercised the workplace rights he alleges he exercised, the central question is why Mr King decided to terminate Mr Shirmohammadi's employment; and that question "must be answered in the light of all the facts established in the proceeding".[146] The relevant facts I have found to be established are as follows:

(a) By 17 April 2023 Mr King formed the opinions that, although Mr Shirmohammadi was good at cleaning up the warehouse, he and his team performed poorly when it came to procurement and production, and that Mr Shirmohammadi and his team would grossly over-order product.

(b) Mr King had reasonable grounds for holding the opinions referred to in (a).

(c) On about 6 April 2023 Mr Robinson telephoned Mr King and reported that Mr Shirmohammadi had burst into Mr Robinson's office saying, among other things, that Ms Borgman is a "stupid bitch" or a "fucking bitch", and Mr King believed what Mr Robinson reported.

(d) Mr Shirmohammadi did not attend any team meeting while Mr King was on leave.

(e) On 14 April 2023 Mr King received an email from Ms Borgman in which she reported interactions with Mr Shirmohammadi concerning Mr Patel's wages, and in which she stated that she "felt a little uncomfortable right now".

(f) At their meeting of 17 April 2017 Mr King said to Mr Shirmohammadi that he wanted Mr Shirmohammadi to finish up immediately; he was unimpressed with Mr Shirmohammadi's performance and communication style; and that Mr Shirmohammadi failed to attend a team meeting or team meetings.

(g) Given the matters in (a)-(e), Mr King had reasonable grounds for being unimpressed with Mr Shirmohammadi's performance and communication style, and for believing Mr Shirmohammadi failed to attend a team meeting or team meetings.

1. Given these findings I find that Mr King decided to terminate Mr Shirmohammadi's employment for the reasons he gave Mr Shirmohammadi at the time he terminated his employment, namely, that Mr King was unimpressed with Mr Shirmohammadi's performance and communication style; and that Mr Shirmohammadi failed to attend a team meeting or team meetings.
2. That, then, leaves the question whether, as counsel for Mr Shirmohammadi submitted, any of the matters Mr Shirmohammadi in his statement of claim alleges constituted the making of a complaint or enquiry in relation to his employment cannot be discounted as an operative or substantial factor in the formation of Mr King's decision to terminate Mr Shirmohammadi's employment. I am satisfied that none of those matters constituted an operative or substantial factor, or otherwise played any role, in the formation of Mr King's decision to terminate Mr Shirmohammadi's employment.
3. None of the matters Mr Shirmohammadi in his statement of claim alleges constituted the making of a complaint or enquiry in relation to his employment could reasonably be regarded as relevant to the reasons for which I have found Mr King terminated Mr Shirmohammadi's employment. It could not reasonably be supposed, therefore, that Mr Shirmohammadi's having exercised the workplace rights alleged in the statement of claim entered Mr King's thought processes in deciding that Mr Shirmohammadi's employment should be terminated because Mr King was unimpressed with Mr Shirmohammadi's performance and communication style, and that Mr Shirmohammadi failed to attend a team meeting or team meetings. Further, the evidence does not reveal that Mr King manifested any disagreement, anger, annoyance, or any other negative response to the complaints and inquiries Mr Shirmohammadi says he made to Mr King. That by itself renders it probable that Mr Shirmohammadi's exercise of the workplace rights alleged in the statement of claim did not constitute an operative or substantial factor in Mr King's decision to terminate Mr Shirmohammadi's employment.

1. I propose to make declarations in relation to those contraventions of the FW Act the respondents admit they engaged in, or I have found the respondents engaged in; dismiss the claims for relief based on the Failure to Give Notice and Adverse Action claims; and list the matter for a directions hearing at 9.30 am on 13 March 2026 for the purpose of making directions on the question of penalties.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[2] Affidavit A J Borgman 28.02.2024, [5].

[3] Affidavit A J King 28.02.2024, [21].

[4] Affidavit A J King 28.02.2024, [22].

[5] Affidavit A J King 28.02.2024, [22].

[6] Affidavit M Shirmohammadi 17.01.2024, [35].

[7] Affidavit M Shirmohammadi 17.01.2024, [36].

[8] Affidavit M Shirmohammadi 17.01.2024, [39].

[9] Affidavit A J King 28.02.2024, [43].

[10] Affidavit M Shirmohammadi 13.03.2024, [19].

[14] Affidavit M Shirmohammadi 17.01.2024, [42], annexure "J".

[15] Affidavit M Shirmohammadi 17.01.2024, [50], [53].

[16] Affidavit M Shirmohammadi 17.01.2024, [46], [47].

[17] Affidavit M Shirmohammadi 17.01.2024, [48]; annexure "L".

[18] Affidavit M Shirmohammadi 17.01.2024, [49].

[20] Affidavit A J King 28.02.2024, [50]-[51].

[21] Affidavit M Shirmohammadi 17.01.2024, [52].

[26] Affidavit M Shirmohammadi 17.01.2024, [13], [14].

[27] Affidavit M Shirmohammadi 17.01.2024,[15]. I read this paragraph subject to limit to the fact that Mr Shirmohammadi made a complaint to Mr King and as evidence of Mr Shirmohammadi's belief as to the substance of those beliefs.

[28] Affidavit M Shirmohammadi 17.01.2024, [16]. I read this paragraph subject to limit to the fact that Mr Shirmohammadi made a complaint to Mr King and as evidence of Mr Shirmohammadi's belief as to the substance of those beliefs.

[29] Affidavit M Shirmohammadi 17.01.2024, [17]. I read this paragraph subject to limit to the fact that Mr Shirmohammadi made a complaint to Mr King and as evidence of Mr Shirmohammadi's belief as to the substance of those beliefs.

[30] Affidavit M Shirmohammadi 17.01.2024, [19]; annexure "C".

[31] Affidavit M Shirmohammadi 17.01.2024, [19]; annexure "C".

[32] Affidavit M Shirmohammadi 17.01.2024, [20].

[33] Affidavit M Shirmohammadi 17.01.2024, [22].

[34] Affidavit M Shirmohammadi 17.01.2024, [23].

[35] Affidavit M Shirmohammadi 17.01.2024, [24].

[36] Affidavit M Shirmohammadi 17.01.2024, [25].

[37] Affidavit M Shirmohammadi 17.01.2024, [26].

[38] Affidavit M Shirmohammadi 17.01.2024, [27].

[39] Affidavit M Shirmohammadi 17.01.2024, [28].

[40] Affidavit M Shirmohammadi 17.01.2024, [29].

[41] Affidavit A J King 28.02.2024, [23].

[42] Affidavit A J King 28.02.2024, [46.a.].

[43] Affidavit A J King 28.02.2024, [47.b.].

[44] Affidavit A J King 28.02.2024, [47.c.].

[45] Affidavit A J King 28.02.2024, [47.d.].

[46] Affidavit A J King 28.02.2024, [48.b].

[47] Affidavit A J King 28.02.2024, [48.c].

[48] Affidavit A J King 28.02.2024, [25].

[49] Affidavit A J King 28.02.2024, [25.a]; exhibit AJK-1, page 26.

[50] Affidavit A J King 28.02.2024, [25.b]; exhibit AJK-1, page 29.

[51] Affidavit A J King 28.02.2024, [25.c]; exhibit AJK-1, page 31.

[52] Affidavit A J King 28.02.2024, [25.d].

[53] Affidavit A J King 28.02.2024, [26].

[54] Affidavit A J King 28.02.2024, [27].

[55] Affidavit G L Robinson 28.02.2024, [5].

[56] Affidavit G L Robinson 28.02.2024, [6]-[7].

[57] Affidavit G L Robinson 28.02.2024, [8].

[58] Affidavit G L Robinson 28.02.2024, [9].

[59] Affidavit G L Robinson 28.02.2024, [10].

[60] Affidavit G L Robinson 28.02.2024, [11].

[61] Affidavit G L Robinson 28.02.2024, [12]-[15].

[62] Affidavit of A J Borgman 28.02.2028, [9].

[63] Affidavit of A J Borgman 28.02.2028, [11].

[64] Affidavit of A J Borgman 28.02.2028, [12].

[65] Affidavit of A J Borgman 28.02.2028, [13].

[66] Affidavit of A J Borgman 28.02.2028, [13]; exhibit AJB-1, page 3.

[67] Affidavit of A J Borgman 28.02.2028, [14].

[68] Affidavit M Shirmohammadi 13.03.2024, [8].

[69] Affidavit M Shirmohammadi 13.03.2024, [9].

[70] Affidavit M Shirmohammadi 13.03.2024, [10].

[78] Affidavit A J King 28.02.2024, [27].

[79] Affidavit A J King 28.02.2024, [30].

[80] Affidavit M Shirmohammadi 13.03.2024, [13].

[81] Affidavit A J King 28.02.2024, [31].

[82] Affidavit G L Robinson 28.02.2024, [20].

[84] Affidavit G L Robinson 28.02.2024, [19].

[85] Respondents' closing outline, [11(c)]

[86] Affidavit M Shirmohammadi 13.03.2024, [12], [14].

[87] T101.45-T103.40. The cross-examination on this subject begins with; "After that . . . you went and saw Mr Robinson, didn't you?"

[91] Affidavit of A J Borgman 28.02.2024, [15]; exhibit AJB-1, page 8.

[92] Affidavit M Shirmohammadi 13.03.2024, [15].

[97] Affidavit A J King 28.02.2024, [32]; exhibit AJK-1, page 32.

[98] Affidavit of A J Borgman 28.02.2024, [16].

[100] Affidavit of A J Borgman 28.02.2028, [16]; exhibit AJB-1, page 9.

[101] Affidavit A J King 28.02.2024, [34].

[102] Affidavit A J King 28.02.2024, [35].

[103] Affidavit M Shirmohammadi 13.03.2024, [16].

[104] Affidavit A J King 28.02.2024, [36].

[105] Affidavit A J King 28.02.2024, [37].

[108] Affidavit M Shirmohammadi 13.03.2024, [17].

[109] Affidavit M Shirmohammadi 13.03.2024, annexure C.

[110] Affidavit A J Borgman 28.02.2024, [17].

[111] Affidavit A J Borgman 28.02.2024, [18].

[112] Affidavit A J King 28.02.2024, [38]-[40]; exhibit AJK-1 pages 34.

[113] Affidavit M Shirmohammadi 17.01.2024, [41]; annexure "I".

[114] Affidavit M Shirmohammadi 17.01.2024, [42]; annexure "J".

[115] Affidavit M Shirmohammadi 17.01.2024, [56]-[57].

[116] Affidavit A J King 28.02.2024, [53.d.]; exhibit AJK-1 pages 35-36.

[117] Affidavit M Shirmohammadi 17.01.2024, [59]; annexure "N".

[118] Affidavit A J King 28.02.2024, [53(f)].

[119] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626.

[120] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626, at [32]-[34].

[121] Affidavit M Shirmohammadi 17.01.2024, [42]; annexure "J".

[122] Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamC2G 934, at [75]-[84].

[124] Applicant's Outline of Submissions, [17].

[126] Ostle v Wilson Mining Pty Ltd [2022] FedCFamC2G 109.

[127] See Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566, at [83]-[90].

[128] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ).

[129] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J).

[130] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [13], [14] (emphasis in original).

[131] 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]).

[132] Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323, at [437].

[133] Statement of claim, [114], [92(a)].

[134] Statement of claim, [114], [92(b)], [52].

[135] Statement of claim, [114], [92(c)], [61].

[146] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, at [45].