From Complaint to Compensation: The Fallout of a Flawed Dismissal

The ‘Ugly’ in ‘the Good, the Bad and the Ugly’ from our 11 July 2025 podcast on Working From Home, from 11 July 2025.

In a decision handed down on 8 July 2025, the Federal Circuit and Family Court of Australia found that Hisense Australia Pty Ltd contravened the Fair Work Act 2009 (Cth) (the FW Act) by taking adverse action against an employee and underpaying him due to misclassification under the applicable modern awards.

The judgment, delivered by Judge Symons, provides important guidance on the scope of general protections, the reverse onus under section 361 of the FW Act, and the obligations of employers to maintain accurate employment records and classifications.

Facts

Mr Filip Naskovski commenced employment with Hisense Australia Pty Ltd in 2015, initially as a casual Warranty Claim Specialist, later transitioning to a permanent full-time role as a Customer Service Team Coach. Over the course of his employment, Mr Naskovski raised multiple concerns with Hisense regarding underpayments, misclassification under the Clerks Private Sector Awards, and access to employment records. He also took personal leave due to stress and anxiety.

In October 2021, while on sick leave, Mr Naskovski was accused of leaking confidential company information to the media. Hisense initiated disciplinary proceedings and ultimately dismissed him in January 2022 for alleged serious misconduct, including misuse of work email and failure to attend meetings and a medical assessment.

Mr Naskovski brought proceedings under theFW Act, alleging that Hisense took adverse action against him because he exercised workplace rights, including making complaints and taking personal leave. He also claimed he was underpaid due to being incorrectly classified under the relevant awards.

Key Legal Findings

Adverse Action – General Protections

• The Court found that Mr Naskovski was dismissed in response to his exercise of workplace rights, including:
  • Making complaints and inquiries about his employment;
  • Requesting access to employment records; and
  • Taking personal leave due to illness.
• Hisense failed to rebut the presumption under section 361(1) of the FW Act which provides that where an application is made alleging that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless the person proves otherwise. In these circumstances, it was alleged that Hisense took adverse action against Mr Naskovski for his exercise of workplace rights.
• The Court rejected Hisense’s claim that dismissal was due to serious misconduct, finding the investigation into the alleged leak of confidential information to be procedurally and substantively flawed.

Misclassification and Underpayment

• Mr Naskovski was misclassified under the Clerks – Private Sector Award 2010 and 2020:
  • Casual employment (2015–2017): Should have been classified as Level 2, not Level 1.
  • Permanent employment (2017–2022): Should have been classified as Level 4, not Level 3.
• The misclassification led to underpayments including:
  • Penalty rates for afternoon and weekend shifts;
  • Annual leave loading; and
  • Public holiday rates.

Failure to Provide Employment Records

• Hisense breached regulation 3.42 of the Fair Work Regulations 2009 (Cth) (the Regulations) by failing to provide Mr Naskovski with access to his employment records.
• The Court noted that Hisense could not locate Mr Naskovski’s employment contract, a core document required under regulation 3.32 of the Regulations.

 Procedural Deficiencies and Witness Credibility

• The Court found the evidence of Ms Ran Sun (HR Manager and purported sole decision-maker) to be inconsistent, implausible, and unreliable.
• Hisense failed to call other key personnel involved in the decision-making process, including Mr Michael Glover (Call Centre Manager).
• The Court criticised the lack of documentation supporting the investigation and disciplinary process.

Next Steps

The Court has directed the parties to confer and submit proposed orders regarding relief and penalties by 5 August 2025, with a further hearing scheduled for 15 August 2025 if no agreement is reached.

Implications for Employers

This decision reinforces several critical principles:

• Employers must ensure procedural fairness in disciplinary and termination processes.
• Accurate classification under modern awards is essential to avoid systemic underpayments.
• The reverse onus in general protections claims requires employers to provide credible, documented reasons for real reason adverse action.
• Employers must maintain and provide access to complete and accurate employment records.

Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943 (8 July 2025)

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.