{"id":9029,"date":"2025-07-11T22:21:00","date_gmt":"2025-07-11T12:21:00","guid":{"rendered":"https:\/\/workn.net.au\/?p=9029"},"modified":"2025-07-15T10:23:05","modified_gmt":"2025-07-15T00:23:05","slug":"from-complaint-to-compensation-the-fallout-of-a-flawed-dismissal","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=9029","title":{"rendered":"From Complaint to Compensation: The Fallout of a Flawed Dismissal"},"content":{"rendered":"\n<p>The \u2018Ugly\u2019 in \u2018the Good, the Bad and the Ugly\u2019 from our 11 July 2025 podcast on&nbsp;<a href=\"https:\/\/workn.net.au\/?p=8988\">Working From Home<\/a>, from 11 July 2025.<\/p>\n\n\n\n<p>In a decision handed down on\u00a08 July 2025, the Federal Circuit and Family Court of Australia found that\u00a0Hisense Australia Pty Ltd\u00a0contravened the\u00a0<em>Fair Work Act 2009<\/em> (Cth) (the <strong>FW Act<\/strong>)\u00a0by taking adverse action against an employee and underpaying him due to misclassification under the applicable modern awards.<\/p>\n\n\n\n<p>The judgment, delivered by&nbsp;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.<\/p>\n\n\n\n<p><strong>Facts<\/strong><\/p>\n\n\n\n<p>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.<\/p>\n\n\n\n<p>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.<\/p>\n\n\n\n<p>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.<\/p>\n\n\n\n<p><strong>Key Legal Findings<\/strong><\/p>\n\n\n\n<p><strong>Adverse Action \u2013 General Protections<\/strong><\/p>\n\n\n\n<ul>\n<li>The Court found that\u00a0Mr Naskovski\u00a0was dismissed in response to his exercise of workplace rights, including:\n<ul>\n<li>Making complaints and inquiries about his employment;<\/li>\n\n\n\n<li>Requesting access to employment records; and<\/li>\n\n\n\n<li>Taking personal leave due to illness.<\/li>\n<\/ul>\n<\/li>\n\n\n\n<li>Hisense failed to rebut the\u00a0presumption under section 361(1)\u00a0of 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\u00a0for his exercise of workplace rights.<\/li>\n\n\n\n<li>The Court rejected Hisense\u2019s claim that dismissal was due to serious misconduct, finding the investigation into the alleged leak of confidential information to be\u00a0procedurally and substantively flawed.<\/li>\n<\/ul>\n\n\n\n<p><strong>Misclassification and Underpayment<\/strong><\/p>\n\n\n\n<ul>\n<li>Mr Naskovski was misclassified under the\u00a0Clerks \u2013 Private Sector Award 2010 and 2020:\n<ul>\n<li><strong>Casual employment (2015\u20132017)<\/strong>: Should have been classified as\u00a0<strong>Level 2<\/strong>, not Level 1.<\/li>\n\n\n\n<li><strong>Permanent employment (2017\u20132022)<\/strong>: Should have been classified as\u00a0<strong>Level 4<\/strong>, not Level 3.<\/li>\n<\/ul>\n<\/li>\n\n\n\n<li>The misclassification led to underpayments including:\n<ul>\n<li>Penalty rates for afternoon and weekend shifts;<\/li>\n\n\n\n<li>Annual leave loading; and<\/li>\n\n\n\n<li>Public holiday rates.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n<p><strong>F<\/strong><strong>ailure to Provide Employment Records<\/strong><\/p>\n\n\n\n<ul>\n<li>Hisense breached\u00a0regulation 3.42\u00a0of the<em>\u00a0Fair Work Regulations 2009<\/em> (Cth) (the <strong>Regulations<\/strong>)\u00a0by failing to provide Mr Naskovski with access to his employment records.<\/li>\n\n\n\n<li>The Court noted that Hisense could not locate Mr Naskovski\u2019s employment contract, a core document required under\u00a0regulation 3.32 of the Regulations.<\/li>\n<\/ul>\n\n\n\n<p><strong>&nbsp;Procedural Deficiencies and Witness Credibility<\/strong><\/p>\n\n\n\n<ul>\n<li>The Court found the evidence of Ms Ran Sun (HR Manager and purported sole decision-maker) to be\u00a0inconsistent, implausible, and unreliable.<\/li>\n\n\n\n<li>Hisense failed to call other key personnel involved in the decision-making process, including Mr Michael Glover (Call Centre Manager).<\/li>\n\n\n\n<li>The Court criticised the lack of documentation supporting the investigation and disciplinary process.<\/li>\n<\/ul>\n\n\n\n<p><strong>Next Steps<\/strong><\/p>\n\n\n\n<p>The Court has directed the parties to confer and submit proposed orders regarding relief and penalties by&nbsp;5 August 2025, with a further hearing scheduled for&nbsp;15 August 2025&nbsp;if no agreement is reached.<\/p>\n\n\n\n<p><strong>Implications for Employers<\/strong><\/p>\n\n\n\n<p>This decision reinforces several critical principles:<\/p>\n\n\n\n<ul>\n<li>Employers must ensure\u00a0procedural fairness\u00a0in disciplinary and termination processes.<\/li>\n\n\n\n<li>Accurate classification under modern awards is essential to avoid\u00a0systemic underpayments.<\/li>\n\n\n\n<li>The\u00a0reverse onus\u00a0in general protections claims requires employers to provide\u00a0credible, documented reasons\u00a0for real reason adverse action.<\/li>\n\n\n\n<li>Employers must maintain and provide access to\u00a0complete and accurate employment records.<\/li>\n<\/ul>\n\n\n\n<p><a href=\"https:\/\/www7.austlii.edu.au\/cgi-bin\/viewdoc\/au\/cases\/cth\/FedCFamC2G\/2025\/943.html\">Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943 (8 July 2025)<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The \u2018Ugly\u2019 in \u2018the Good, the Bad and the Ugly\u2019 from our 11 July 2025 podcast on&nbsp;Working From Home, from 11 July 2025. In a decision handed down on\u00a08 July 2025, the Federal Circuit and Family Court of Australia found that\u00a0Hisense Australia Pty Ltd\u00a0contravened the\u00a0Fair Work Act 2009 (Cth) (the FW Act)\u00a0by taking adverse action [&hellip;]<\/p>\n","protected":false},"author":22,"featured_media":9030,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[201],"tags":[],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/9029"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/22"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9029"}],"version-history":[{"count":1,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/9029\/revisions"}],"predecessor-version":[{"id":9031,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/9029\/revisions\/9031"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/9030"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9029"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9029"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9029"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}