FEDERAL COURT OF AUSTRALIA

Williams v Natural Solar Pty Ltd (Urgent Reinstatement Application) [2025] FCA 527

ORDERS

THE COURT ORDERS THAT:

1.    Upon the applicant giving the usual undertakings as to damages:

(a)    pursuant to ss 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (FW Act) the respondent reinstate the applicant, effective from the date of this order, to his former employment, on the conditions which applied immediately prior to 29 April 2025, until close of business 30 June 2025.

(b)    pursuant to ss 545(1) and (2)(a) of the FW Act, the respondent be restrained from terminating the employment of the applicant without leave of the Court until close of business 30 June 2025.

2.    Until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the grounds that this order is necessary to prevent prejudice to the proper administration of justice, the documents referred to in Annexure A of these orders be disclosed to the following persons only:

(a)    any Judge, employee or other personnel of the Court;

(b)    the respondent, his solicitors and Counsel; and

(c)    the applicant, his solicitors and Counsel.

3.    The matter be referred to the National Operations Registry for the allocation of a docket Judge, with the hearing of the substantive application to be expedited.

4.    Costs be reserved.

5.    The parties have liberty to approach the Chambers of Justice Needham, or that of the Duty Judge, on two days’ notice by email should no docket Judge have been allocated at the time.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

1.    Transcript of the interlocutory proceedings before the Honourable Justice Needham on 14 May 2025.

2.    Paragraphs 25, 26, 73, 74, 75, 126, 192, 207 of the Affidavit of Christopher George Williams sworn 6 May 2025.

3.    Tabs 3, 4, 16, 17, 28, 31, 33, 34, 35, 44, 47, 48, 50, 52, 54, 55, 56, 60, 61, 62, 64, 69, 70, 73, 75, 82, 83, 95, 96, 115, 116, 117, 121, 122, 123 of Exhibit CGW-1.

4.    Paragraphs 105, 106, 107, 108, 113, 118 of the Affidavit of Christopher George Williams sworn 13 May 2025.

5.    Tabs 1, 2, 4, 5, 9 of Exhibit CGW-2.

6.    Paragraphs 58(a), 81, 89 of the Affidavit of Brendan Anthony Evans dated 12 May 2025.

7.    Tabs 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 of Exhibit BAE-1 to the Affidavit of Brendan Anthony Evans dated 12 May 2025.

8.    Paragraphs 25, 62, 81 and annexure LAS-9 of the Affidavit of Luke Alexandre Stronach dated 12 May 2025.

9.    Tabs 1, 5, 6, 7 of Exhibit PS-1 to the Affidavit of Philipp Schröder dated 12 May 2025.

10.    Tabs 2, 6, 7, 8, 9, 10, 11, 12, 13, 14 of Exhibit WMG-1 to the Affidavit of Wolf Micha Grüber dated 12 May 2025.Paragraphs 28, 39, and 40 and Tab 3 of Exhibit CGW-2 of the Affidavit of Christopher George Williams of 13 May 2025.

REASONS FOR JUDGMENT

NEEDHAM J:

1    Christopher George Williams, the applicant, seeks orders as follows:

(a)    Until 30 June 2025, an order pursuant to ss 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (FW Act) and/or ss 1317AE(1)(c) and (1)(e) of the Corporations Act 2001 (Cth) and/or s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that the respondent reinstate the applicant, effective from the date of order, to his former employment, on the terms and conditions which applied immediately prior to 29 April 2025.

(b)    Until 30 June 2025, an order pursuant to ss 545(1) and (2)(a) of the FW Act and/or ss 1317AE(1)(c) and (1)(g) of the Corporations Act and/or s 23 of the Federal Court Act that the respondent be restrained from terminating the employment of the applicant without the leave of the Court.

2    He offers, by his counsel, an undertaking as to damages if those orders were to be made.

3    This matter came before me as Duty Judge on 6 May 2025 when short service orders were made, and later, by consent, timetabling orders bringing the matter back before me, still as Duty Judge, on the morning of 14 May 2025. Ms Gall of Counsel appeared for the applicant, and Mr Minucci of counsel appeared for the respondent.

4    These proceedings were brought on an urgent interlocutory basis although the relief sought is in a sense final relief, as reinstatement on a final basis is sought in claims 2 and 7 of the Originating Application filed on 6 May. The Originating Application seeks other remedies such as declarations as to the respondent dismissing the applicant by way of adverse action or contrary to the whistleblower provisions of the Corporations Act, compensation by way of damages, preservation of his leave and long service leave entitlements, and a pecuniary penalty.

5    Counsel for Mr Williams however confirms that reinstatement is sought only until 30 June 2025. The applicant frames this relief as preserving the status quo, notwithstanding the applicant having been dismissed from his position on 29 April 2025, because the contract of employment between the applicant and the respondent provided for his employment until that date absent, relevantly, dismissal for serious misconduct.

6    The respondent alleges that the applicant was appropriately dismissed for serious misconduct and has relied upon four affidavits setting out the concerns with the applicant’s conduct. Mr Williams relies on his affidavit in support of the Originating Process, as well as an affidavit in reply. A fairly hefty set of exhibits to each affidavit were received into evidence, and counsel took the pragmatic position that they would not engage in arguments as to admissibility, but left it to the Court to determine the admissibility or weight of the evidence. I have not made these determinations in a formal way, but I have indicated below where I have not relied on evidence put forward by either party because of concerns with its reliability or its distance from first-hand hearsay. Noting that this is an interlocutory matter, and that no cross-examination of any witness was undertaken, this was not as easy a task as one may have wished.

7    The matter was listed for the making of orders on Friday 16 May 2025. However, on that occasion, counsel for the respondent indicated that there had been a material change in the circumstances of the relationship of the parties. That matter is dealt with below. Accordingly, the matter was stood over to 21 May 2025 for consideration of that development, and so that orders could be made, with these reasons for those orders following shortly thereafter. Given the urgency of the application and the short period which is sought for reinstatement, as well as the ramifications for the parties, these reasons have been prepared on an expedited basis, and thus only seek to grapple with that which is necessary to make the decision at hand.

The facts

8    The background to the employment relationship between the parties is complex, and I will attempt to summarise it in a concise yet accurate manner.

9    The applicant founded the business of the respondent in around 2012 with his late father’s active involvement. The applicant owned 99 shares of the respondent, and his wife Sarah Jessica Williams owned one share. The business commenced as a retailer and installer of solar panels, and in 2015, expanded to solar battery technology.

10    The respondent’s business (Natural Solar) has a relationship with Tesla and installs its Powerwall batteries.

11    In about August 2022, the applicant commenced negotiations with 1Komma5° GmbH (1Komma5) which is a German entity founded inter alia by Philipp Schröder in July 2021. The business of 1Komma5 is to “acquire and consolidate solar, battery and heating, ventilation and air conditioning installation companies into one group under one brand and with centralised services and procurement”. One of the businesses it sought to acquire was that of Natural Solar. To that end, 1Komma5 created 1K5 APAC Holding Pty Ltd (APAC), a wholly-owned subsidiary of 1Komma5, to be a holding company for 1Komma5 for its Australian companies. APAC was incorporated on 27 September 2022 and has as directors Mr Schröder, Wolf Grüber, and Brendan Evans (who were three of the four witnesses for the respondent; the other is Luke Stronach). Mr Williams was a director of APAC between 27 September 2022 and 12 March 2024, when he was removed as a director.

12    Other companies in Australia, including a business called Solaray (which Mr Williams says is a competitor of Natural Solar) and Arkana (which was Mr Evans’ and Mr Stronach’s company) were acquired by APAC under the 1Komma5 umbrella. Mr Williams gives an account of difficulties arising during the negotiations and acquisition of Natural Solar because, he says, of structural issues with the buyouts which were not resolved. The evidence for Natural Solar was that Mr Williams did not co-operate in the way that was envisaged when Natural Solar was acquired. I do not need to go into detail about that process, but it is not in contest that on 30 September 2022 the following agreements were entered into:

(a)    Share purchase and transfer agreement (referred to as the SPA). Section 5 of that agreement is headed “Purchase price: Payment” and provides for the consideration of the sale of the shares in Natural Solar to Mr Williams as follows (using the applicant’s submissions summary of the payment regime):

(i)    Fixed amounts of:

(A)    EUR 300,000 (paid on 28 October 2022)

(B)    EUR 2,700,000 (paid on 13 July 2023)

(C)    EUR 1,500,000 which was due to be paid (on the applicant’s case) on 31 December 2024, but this has not yet been paid and is the subject of arbitration proceedings commenced by Mr Williams;

(D)    EUR 1,500,000 less relevant tax liabilities, due to be paid in about October/November 2025 after annual accounts for FY 2024/25 have been prepared.

(ii)    Variable amounts, contingent on formal approval of Natural Solar’s audited accounts for the financial years as follows:

(A)    FY 2022/23 - paid on 6 March 2024;

(B)    FY 2023/4 – to be paid within 10 business days following formal approval; the approval of these accounts is an ongoing issue between the parties and the payment, which would, Mr Williams says, have been due around December 2024, has not been made;

(C)    FY 2024/5 – likely due in October/November 2025; and

(D)    An amount due on the earlier of an Exit (as defined in the SPA) or 30 June 2028. The terms of the Exit are another issue between the parties, due to the definition in cl 5.4 of the SPA of a “good leaver” which, if the termination for serious misconduct stands, Mr Williams would not satisfy.

(b)    Shareholders agreement between APAC, Mr Williams, and Natural Solar; and

(c)    Employment agreement between Mr Williams and Natural Solar.

13    Under the employment agreement, Mr Williams was appointed Chief Executive Officer and reported to the Board of Directors. He was required by cl 18.2 of the employment agreement to comply with any policies of Natural Solar, which, he says included policies relating to bullying and other workplace issues.

14    Mr Grüber and Mr Schröder are based in Germany. Both sides say that this created logistical and other difficulties. In around August 2024, Mr Stronach was appointed to the role of CEO at APAC, and in September 2024, Mr Evans commenced at APAC as CFO. Both of them were appointed as directors of Natural Solar, and Mr Evans as a director of APAC, on 26 August 2024. Mr Schröder says that the need for these appointments was the difficulties they had been experiencing with Mr Williams.

15    Mr Williams contends that he has made complaints, which included breaches of directors’ duties, disputes about payments for the agreed purchase price for Natural Solar and breaching the SPA; and verbal abuse and physical threats by Mr Grüber and Mr Schröder (as set out in Mr Williams’ first affidavit). Messrs Schröder and Grüber characterise their issues with Mr Williams as performance and conduct issues with Mr Williams. Mr Schröder does not mention, and Mr Grüber specifically does not deal with, the allegations of bullying and threats (although Mr Grüber notes that he does not accept them). Again, it is not necessary, or possible at this interlocutory stage, to determine where the fault lies, but given the lack of specific denials or any engagement with Mr Williams’ evidence on the point, I can accept on this interlocutory application that they are more likely than not to have taken place. It is necessary for me to determine, on the question of whether a prima facie case is made out, whether those complaints have the characterisation of “whistleblower” complaints and whether there was an “adverse action” breach by the respondents.

16    Mr Evans says that, prior to him being brought into APAC, he was aware that “the relationship between Mr Williams, Mr Schröder and Mr Grüber had broken down”, and that he, as CFO of APAC, was tasked with building a relationship with Mr Williams. Mr Stronach gave similar evidence. Mr Evans set out a number of areas in which he says he had issues with the way in which Natural Solar’s data was maintained and with its financial reporting. Mr Williams regarded this “fabricated ‘access denial’ narrative [as being] central to the respondents’ termination justification, and is provably false”.

17    On 25 January 2025, Mr Grüber wrote (on letterhead of, and as CFO of, 1Komma5) to Mr Williams outlining some issues “that have arisen in respect of 1K5’s acquisition of Natural Solar, and your conduct as a Senior Executive”. That letter alleged breaches of the SPA, including a reconciliation of the Order Book which formed part of the valuation of Natural Solar, issues with the FY24 accounts, failure to transfer the 49% of the shares in Natural Solar by the due date, and “unacceptable conduct as Senior Executive leading to substantial damage to Natural Solar and 1K5”.

18    Mr Williams rejects any allegations of misconduct. In his reply affidavit of 13 May 2025, he characterises the complaints in the affidavit evidence as being:

(a)    allegations of deliberate audit obstruction;

(b)    accusations of financial misrepresentation and systemic governance failure;

(c)    misleading suppliers, staff, and the board of directors;

(d)    causing damage to Natural Solar’s reputation and business; and

(e)    claims that his relationship with staff was such that they embraced his removal and had refused to work for him.

19    Mr Williams set out a comprehensive response to these allegations against him in his reply affidavit, for example, giving details of the issue raised by the respondents relating to the way in which commissions were paid to the sales team. He raised concerns that the May increase in revenue is “only 10%” which is less than he would have expected, being a significant increase in sales, because of the “largest national battery rebate in Australian history” and says that this sales figure reflects a mismanaged sales strategy after his removal. It is not necessary for me to go through each of the allegations and deal with the matters as set out by each side; suffice to say that the evidence demonstrates a level of unhappiness on each side and serious questions about, on Mr Williams’ side, the motivations behind his termination, and, on the respondent’s side, as to Mr Williams’ conduct as a senior executive.

20    Mr Williams’ employment was terminated on 29 April 2025, in circumstances he describes in his affidavits. Mr Williams recorded the meeting. The respondent submits that this was a breach of s 7(1) of the Surveillance Devices Act 2007 (NSW) which prohibits the recording of a private conversation without consent, and the applicant submits that he was entitled to do so by reason of the exception in sub-s 3(b)(i) of that section, which provides that recording is not prohibited if it is “reasonably necessary for the protection of the lawful interest of [the applicant]”.

21    The parties’ submissions on the legality of the recording did not go much further than the summary above, due to the urgent and compacted nature of the hearing. However, I am able to say that on this interlocutory application I am satisfied that there is a prima facie position that Mr Williams was concerned to protect his lawful interests and that the recording may therefore not be prohibited, and is thus able to be used in evidence.

22    Two letters, one of 13 May 2025 (from the solicitors for the respondents to the solicitors for the applicant) and a reply of 14 May 2025 were in evidence before me, both in order to complete the correspondence in the evidence and to set out the position as it pertains at the moment. They set out the outstanding issues between the parties as to the handover of confidential information, the transfer of login and account access for various online services, purchase of the applicant’s car, and finalisation of his leave and long service payments.

23    In his reply affidavit, Mr Williams says:

In respect of the termination of my employment, I believe that the termination was a premeditated effort to remove me from my role and business just 2 months before the end of the earn out period.

24    Mr Stronach said to him at that meeting:

Either [it’s] going to happen now or at the end of June … You need to focus on what’s going to happen with the earn-out process and going to war regarding that.

25    Mr Williams’ evidence was that he was concerned at the reference to “going to war” and that suggestion underlines the concern he has that the termination was based on a motivation, not as expressed in the January letter of 1Komma5 and subsequent communication, but to seek to depress the financial performance of Natural Solar up to 30 June 2025 so as to impact adversely the cash payouts based on the revenue for the current financial year.

26    For example, he says that Natural Solar’s current concerns about the 2025 budget figures are shown to be hollow by Mr Stronach’s email to him of 15 November 2024, which noted the numbers as looking “solid” and that the figures submitted were “all we need to build an offer for you to discuss on the 26th”. Mr Williams described the “offer” as one of continued employment after 30 June 2025 with a higher base salary and an EBITDA/revenue share. Mr Stronach says that contrary to this, there was no offer and that the proposed base salary and EBITDA percentage was “very unlikely”. Mr Williams says that Mr Evans acknowledged the finalised budget on 11 December 2024. However, Mr Evans says in his affidavit that “it was evident that Mr Williams had spent minimal time on the budget as it only used whole numbers in relation to revenue”. He also says that the budget contained “incorrect data”.

27    It is clear that there are significant differences between the parties as to the way in which Mr Williams conducted the business, and as to the motivations of the respondent in terminating his employment. Mr Williams’ contention is that his termination was a premeditated scheme to ensure that Natural Solar’s revenue did not reach the $30M threshold. He says: (CMW2.111)

I believe the balance of convenience strongly supports urgent reinstatement. Without it, Natural Solar is materially at risk of missing a contractual revenue threshold that the business was previously on track to exceed - exposing not only myself to economic loss, but the company to reputational and operational damage caused by unnecessary disruption during a critical market period.

What is the power to reinstate Mr Williams?

28    The Court has power to reinstate Mr Williams, including on an interlocutory basis, pursuant to:

(a)    s 545(2) of the FW Act;

(b)    s 1317AE(1)(c) and (e) of the Corporations Act; and/or

(c)    s 23 of the Federal Court Act.

29    The principles for making a reinstatement order are those of general interlocutory relief principles, that is:

(a)    does the applicant have a prima facie case for reinstatement?

(b)    does the balance of convenience favour the grant of an injunction?

30    The parties differed on whether the traditionally cautious approach as to reinstatement as requiring an ongoing employment relationship as set down JC Williamson Ltd v Lukey and Mullholland (1931) 45 CLR 282, at 297–298 should be applied. The applicant asserted that where there is an express statutory basis for reinstatement, the Court should not take that approach. The applicant relied inter alia on Construction, Forestry and Maritime Employees Union v Programmed Industrial Maintenance Pty Ltd [2025] FCA 257 (CFMEU v PIM); Weber v Thomas Foods International (Stawell) Pty Ltd [2024] FCA 1506; Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074 (Dabboussy). Neither in CFMEU v PIM, nor in Dabboussy did the Court so hold; while reinstatement orders were made, they were made on the usual basis of consideration of the principles set out in the preceding paragraph. Indeed in Weber, the prima facie case was conceded by the respondent.

31    The respondent urged that orders requiring a continued employment relationship against the wishes of the respondent where ongoing relationships are required to be maintained should be viewed cautiously (see National Union of Workers v AB Oxford Cold Storage Co Pty Ltd [2017] FCA 1220 at [15] (Bromberg J)) and that the applicant must demonstrate a “sufficient likelihood of success”.

32    As explained by Katzmann J in Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582 at [42], the usual principles as to the grant of injunctions should be applied and that the proper course to take is that which “appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial” (see Meagher J in CFMEU v PIM at [64] citing Bradto Pty Ltd v Victoria; Tymbook Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89 at [35]).

Is this interlocutory or final relief?

33    In order to succeed on an interlocutory injunction, the applicant submitted that he must show that there is a sufficient likelihood of success to justify preservation of the status quo pending the trial. This is, however, complicated as noted above by the fact that the relief sought is in a sense final relief, in that it is reinstatement, not pending the trial, but for a specified period.

34    The respondent says that final relief that would require the ongoing supervision of the Court should not be granted. The applicant says that concern is mitigated by the fact that any order would be short-term, ie, until 30 June 2025, and that it would be a return to the status quo that pertained only some three weeks previously.

35    Given the short-term nature of the orders sought, and the fact that it does, in one sense, seek to maintain the status quo (both of the applicant’s recent employment, and of the intention of the parties when entering the employment agreement that he be employed until 30 June 2025), it seems to me that the relief is more akin to an interlocutory injunction for a constrained period of time. I will apply the relevant principles accordingly.

Does Mr Williams have a prima facie case of unlawful termination?

36    The applicant contends that Mr Williams has a prima facie case against Natural Solar with respect to the termination of his employment being unlawful by reason of:

(a)    a whistleblower victimisation claim (s 1317AD of the Corporations Act); and/or

(b)    an adverse action claim (s 340 of the FW Act).

37    In Jackson v Heart Research Institute Ltd [2025] FCA 301, Raper J set out the principles to be applied where “whistleblower” relief under s 1317AD of the Corporations Act is sought. The parties are agreed that those principles may be summarised as follows:

the elements of s 1317AD are, relevantly: that Natural Solar engaged in conduct which caused a detriment to Mr Williams;

(a)    when Natural Solar engaged in the detrimental conduct, Natural Solar believed or suspected that Mr Williams may have made, proposes to make or could make a disclosure that qualifies for protection under Pt 9.4AAA; and

(b)    that belief or suspicion was the reason, or part of the reason, for the detrimental conduct.

38    As to the first question, Mr Williams bears the onus. If he is able to show that Natural Solar caused a detriment, then the onus then moves to Natural Solar, who has the onus of showing that the elements of s 1317AD are not made out (see sub-s (2B)(b)). As summarised by the applicant in his submissions:

Natural Solar bears the onus of showing, when it engaged in the detrimental conduct, it did not believe or suspect that Mr Williams may have made, proposes to make or could make a disclosure qualifying for protection, and that the belief or suspicion did not form the reason or part of the reason, for the detrimental conduct: s 1317AD(1)(b) - (c) (Jackson at [218]).

39    In relation to the claim of adverse action, there is an issue as to whether the applicant has the benefit of the reverse onus; the respondent says that s 361(2) of the FW Act prohibits the applicant seeking to move the onus to Natural Solar once an adverse action is shown. The respondent cites Snaden J in AMWU & Anor v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 at [52] in support of this submission:

The meaning of the words of s 361(2) is clear. To have, in the process of assessing whether there is a prima facie case for interim injunctive relief, regard to the existence of the reverse onus for which s 361(1) provides is to proceed as though s 361(1) “appl[ies]” in that context. Yet s 361(2) says that it doesn’t. The applicants cannot, at this juncture, draw any strength from the existence of the reverse onus of proof to which s 361(1) gives effect.

40    The applicant sought to rely on Police Federation v Nixon (2008) 168 FCR 340; [2008] FCA 467 at [69], where Ryan J said that “account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case” and, as a fallback submission, suggested that the question of a prima facie case can be determined without taking s 361(1) into account (see Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [64] ( Mortimer J)).

41    It seems to me that I should determine the matters having regard to the reversal of onus in the whistleblowing allegations but not in regard to the adverse action allegations, as complex as that may be.

42    In relation to both causes of action, the applicant relies on matters leading up to the termination which would indicate that the asserted reason of serious misconduct was not the real reason for the termination. These include the conduct of the respondent leading to an arbitration commenced by Mr Williams seeking the fixed purchase payment component of the consideration which was due on 31 December 2024. He also seeks to rely on the timing of the termination, some 2 months before the end of the “earn-out” period.

43    I will deal first with the FW Act contentions.

Are the matters relied on by the applicant “adverse actions” within the meaning of ss 341 and 342 of the Fair Work Act?

44    Section 341 provides:

Meaning of workplace right

 (1) A person has a workplace right if the person:

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

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

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

 (i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

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

45    The workplace right relied upon by the applicant is his right to make a complaint or inquiry in relation to his employment, for example his complaint in the 4 February 2025 letter from his solicitors where he complained of the verbal abuse and physical threats made to him by Mr Grüber and Mr Schröder (see s 341(1)(c)(ii)). By that letter Mr Williams complains, by his solicitors, that he was:

… also repeatedly subjected to verbal abuse and physical threats by Messrs Grüber and Schröder, including on one occasion being told by Mr Schröder that Mr Grüber wanted to get into a fist fight with him and that if he wanted to continue within the group then he’d need to be locked in a room with him.

46    The applicant submitted that he would be entitled to the benefit of the FW Act to apply for a stop bullying order, as well as under the Workplace Health and Safety Act 2011 (NSW), which places an obligation on employers to ensure worker safety and well-being. Dismissal by an employer is an “adverse action” within the meaning of s 342(1) of the FW Act.

47    The respondent relies, in the adverse action complaint, on the lack of temporal connection point, in that the conversations relating to the physical threats took place in 2023/24. The applicant’s solicitors wrote to the respondent’s solicitors in February 2025, raising complaints of physical threats and bullying in the context of a lack of financial probity and breaches of the SPA by the respondent as an issue in the arbitration.

48    Mr Williams also raises the timing of the termination, being some few days before he transferred his remaining 49% shareholding to 1Komma5, making it the sole owner of Natural Solar. This took place in the context of a discovery request from 1Komma5’s legal representatives in the arbitration dispute, including details such as the WhatsApp messages in which the alleged threats took place. The termination’s timeframe, so close to the 30 June 2025 deadline for the earn-out period, raises more questions than can be answered in this context.

49    The applicant’s complaints about his manner of termination, and the financial issues leading up to it, may be a workplace right in the context expressed by Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [625] where her Honour described the ability to make a complaint under s 342(1)(c) as including “an instrument, such as a contract of employment, award or legislation.”

50    In Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401, Halley J said (at 88]):

In cases involving senior management employees, the “potential implications” test may be of little utility as their conduct will likely always have potential employment ramifications: The Environment Group Ltd v Bowd [2019] FCA 951 at [126] (Steward J) ... In Bowd, Steward J said at [126]:

[I]n the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way. In that respect, observing the required nexus may be direct or indirect, may not greatly assist. It must, as a matter of substance, be about that CEO’s employment.

51    Mr Williams, as a CEO, had an employment contract which not only protected him from bullying and threats, but also (in the absence of specified and limited reasons) protected him from early termination prior to 30 June 2025.

52    In my view, taking into account the workplace right exercised or entitled to be exercised, and the proximity of the detriment of the termination of his employment to his raising of the bullying issue once more, it may be that the applicant can make out a claim of adverse action in relation to both the bullying during the employment, and the timing of the termination which appears to be at least partially linked to retaining control of Natural Solar for the final part of the SPA term.

53    While the complaints of bullying and the manner of his termination may each be only one possible reason for the termination, by s 360 of the FW Act, it need only be one of the reasons.

54    The respondent contends that many of the complaints and inquiries made by the applicant were made, not as an employee, but as a shareholder or director. That may be true in relation to the financial requests and the issues as to the buyout, but not as to the two matters I have considered above as workplace rights.

55    There is in my view a prima facie basis to regard the adverse action part of the claim as having been made out. The allegations of bullying and threats had become part of the arbitration process and would have been front of mind for the respondent at the time of the termination. As to the timing of the termination, Mr Stronach recognised Mr Williams’ terms of employment, and said during the termination meeting that “it was either going to happen now [or] at the end of June, which is less than two months away” in the context of “going to war” about the earnout. It seems to me that these facts, which are made out to the requisite standard on this interlocutory application, can base a finding that there is an arguable prima facie case of adverse action.

56    The respondent’s outright rejection of the applicant’s claims do not deal with the above two factors, except to say that the discontent with the applicant was brought to his notice in correspondence in January, February, and April 2025. The denials of the four deponents, it says, should be enough. It is not necessary to determine, on determining whether there is a prima facie case of adverse action, to determine whether “each and every one of those directors is somehow being untruthful or that somehow their evidence should not be believed” as the respondent submitted; it is enough to make a review of the whole of their evidence and to look at timelines and actions taken, in order to form the view that the applicant’s reliance on workplace rights had some influence on the adverse action of termination.

57    In response to the respondent’s affidavits which set out a long history of difficulty between the parties, Mr Williams is able to point to matters which go the other way. While the onus is not on the respondent, it is enough that there is a serious question to be tried, and I have reached that conclusion on the whole of the evidence before me.

Are the disclosures relied on by the applicant of such a kind as to qualify for protection under Part 9.4AAA of the Corporations Act?

58    As I have found that the applicant may, on this interlocutory application, make out a claim for adverse action, it is not strictly necessary to determine the whistleblower part of the argument. However, I set out my reasoning in relation to this part of the claim as it formed a large part of the applicant’s case before me.

59    Before undertaking the two-stage process outlined above at [37], it is first necessary for the applicant to demonstrate that he has suffered a detriment by way of his termination by the respondent. Termination of employment falls within the definition of detriment in s 1317ADA(a) of the Corporations Act.

60    In relation to the whistleblowing allegations, the applicant says that he relies on the following matters:

(a)    breaches of directors’ duties (eg. ss 181, 182, 183 of the Corporations Act as well as obligations under the common law such as fiduciary obligations), in relation to matters such as Natural Solar’s contractual relationship with Tesla and procurement of Tesla products, and pricing used by Solaray, in the context of underquoting which affected Natural Solar’s profit (AS38-40);

(b)    incorrect, improper or deliberate delaying of the financial accounts of Natural Solar; and

(c)    incorrect, improper or deliberate attempt to avoid or delay paying the agreed purchase price for Natural Solar’s shares and thereby breaching the SPA.

61    Section 1317AA(4) and (5) provide:

Disclosable matters

(4)    This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a)    the regulated entity; or

(b)    if the regulated entity is a body corporate—a related body corporate of the regulated entity.

(5)    Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:

(a)    the regulated entity, or an officer or employee of the regulated entity;

(b)    if the regulated entity is a body corporate—a related body corporate of the regulated entity, or an officer or employee of a related body corporate of the regulated entity;

has engaged in conduct that:

(c)    constitutes an offence against, or a contravention of, a provision of any of the following:

(i)    this Act;

(ii)    the ASIC Act;

(iii)    the Banking Act 1959;

(iiia)    the Financial Accountability Regime Act 2023;

(iv)    the Financial Sector (Collection of Data) Act 2001;

(v)    the Insurance Act 1973;

(vi)    the Life Insurance Act 1995;

(vii)     the National Consumer Credit Protection Act 2009;

(viii)    the Superannuation Industry (Supervision) Act 1993;

(ix)    an instrument made under an Act referred to in any of subparagraphs (i) to (viii); or

(d)    constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or

(e)    represents a danger to the public or the financial system; or

(f)    is prescribed by the regulations for the purposes of this paragraph.

Note:    There is no requirement for a discloser to identify himself or herself in order for a disclosure to qualify for protection under this Part.

62    The applicant relies in the following passage of Raper J in Jackson at [224] as a helpful summary:

(a) To the extent that the “information” believed or suspected to be in the possession of the putative whistleblower, concerns “misconduct”, that includes information concerning “fraud, negligence, default, breach of trust and breach of duty”, by picking up the definition of “misconduct” in s 9 the Corporations Act (Reiche at [88]; Mount at [129]);

(b) To the extent that the “information” concerns “improper state of affairs or circumstances” (Reiche at [88]; Mount at [129]):

(i) the terms are not defined in the Corporations Act and it ought be inferred that they be given their ordinary meaning;

(ii) “Improper” is a term of broad import which includes, by adoption of its ordinary meaning, as not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong;

(iii) the terms “improper state of affairs or circumstances” may include conduct in relation to a regulated entity, which, whilst not unlawful, may indicate a systemic issue that would assist the relevant regulator in performing its functions given that the underlying purpose of Part 9.4AAA is to encourage whistleblowing to aid or improve compliance with the law (Mount at [90]–[91]); and

(iv) the terms may include, but is not limited to, information that indicates a danger to the public or a danger to the financial system is also a disclosable matter (Mount at [90]–[91]).

63    Feutrill J in Reiche v Neometals Ltd (No 2) [2025] FCA 125 observed that the relevant inquiry involves determining whether the respondent, who engaged in the detrimental conduct, believed or suspected that the applicant subjectively possessed grounds for having the requisite suspicion of the matters set out in s 1317AA(4) or s 1317AA(5) and if so, whether those grounds objectively would be reasonable grounds for that suspicion. He went on to say (at [87]):

That inquiry is informed, in part, by the nature of the information subjectively possessed and the extent to which it obviously and readily concerns the matters described in s 1317AA(4) or s 1317AA(5). The outcome of the relevant inquiry is of relevance to determining the question of whether the person who engaged in detrimental conduct could have or was likely to have believed or suspected that Mr Reiche had made, may have made, proposed to make or could make a disclosure of information that would qualify for protection under Pt 9.4AAA.

64    Feutrill J observed at [93] (cited approvingly by Raper J in Jackson at [225]),

where, on the putative whistleblower’s case, the alleged “information” does not obviously or readily engage or assist the regulatory functions (compliance, enforcement and (or) discipline) of ASIC, APRA or another Commonwealth authority in relation to the regulated entity (or a related body corporate), the person who caused to detriment may plausibly not have reason to believe or suspect that disclosure of that information by the whistleblower would qualify for protection under Pt 9.4AAA.

65    Katzmann J in Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 at [248] noted that “requests for reports or information do not constitute disclosures of information … nor do directions to employees or requests for assistance from board members”.

66    The complaints in sub-categories (b) and (c) of [42] above have a quality of inter-partes rights about them rather than matters which could be whistleblower complaints engaging with regulatory compliance. That is not to say that the allegations of manipulation of financial records for a party’s gain, or a failure to adhere to contractual obligations such as the variable components of the purchase price cannot be the subject of regulatory complaints; in this case, however, those factors are more comfortably dealt with in that inter-partes sphere rather than by the kind of governance issues which give rise to whistleblower complaints.

67    Mr Williams’ evidence is much more focused on the propriety of his termination in the context of his interest in maximising Natural Solar’s revenue in the light, not only of his fiduciary duties to Natural Solar, but also of his own financial interests in achieving the variable payout amounts under the SPA. He is not to be criticised of course for having his own financial interests under the SPA as one of his goals. But it does not appear to me that his governance complaints amount, on the evidence available to me, to protected disclosures which may “obviously or readily engage or assist the regulatory functions …. [of relevant Commonwealth authorities]”. They too are more in the category of contractual disputes or complaints as to the respondent’s adherence to the terms of the SPA.

68    The applicant’s complaints in sub-category (a) of [42] above may come closer to what could be seen as “whistleblower” complaints than information which “might engage or assist regulatory functions”. The respondent further points to the evidence from each of the directors of Natural Solar that the applicant’s employment was terminated because of conduct issues and they did not believe or suspect that he “made, may have made, proposed to make or could make a disclosure that qualifies for protection” under Part 9.4AAA of the Corporations Act. While that evidence was not the subject of cross-examination, there are corroborative documents which indicate that there were concerns with the applicant’s conduct well prior to the termination.

69    On balance, I am not satisfied that the applicant has made out his claim for whistleblower protection, on the basis of the nature of the alleged protected disclosures. As noted above, the concerns about the “real reasons” for the termination are relevant on the whistleblower claims, and I find the evidence on that aspect again to be finely balanced, even taking into account the reversal of the onus. That may not be the view taken on final relief when the parties have had the benefit of document disclosure and, importantly, the ability to cross-examine the witnesses. Where I am not satisfied that the alleged matters for disclosure are in fact “whistleblower” claims, I need not make a finding on this aspect of the claim.

Where does the balance of convenience lie?

70    As I have found that Mr Williams can make out a prima facie case on the FW Act claim, I now turn to the question of the balance of convenience. Mr Williams sets his balance of convenience argument on two bases. The first is that his reinstatement will preserve business continuity in the best interests of the company and will allow the business of the company to continue for the short-term future in the absence of three senior management personnel in May/June.

71    The second is that his presence at Natural Solar could maximise its performance in the critical period leading up to the new rebate scheme which has effect from 1 July 2025, and for the balance of his earn-out period. As the applicant said in his written submissions, “Mr Williams’ own interests are aligned with running Natural Solar well and maximising Natural Solar’s profit”.

72    The respondent points to Mr Stronach being able to run Natural Solar “seamlessly” since Mr Williams’ employment was terminated. Mr Grüber and Mr Schröder are unconcerned about the three senior employees being on leave.

73    There are two significant factors which tend against the making of an interim order. The first is that the order will be disruptive, as it is not a preservation of the status quo. Mr Williams had been out of his role for some three weeks by the time these orders were made. The second is that there is – on both sides – a relationship lacking trust and confidence. Mr Williams alleges that he has been exposed to a pattern of “bullying, threats and harassment” including “verbal abuse”; he has been “victimised” and subject to “unlawful”, “improper” and “reputationally damaging and emotionally distressing” conduct. The respondent – perhaps disingenuously given the conflict in the evidence – expresses concern as to Mr Williams’ mental health if he were to return in these circumstances.

74    The respondent contends that the relationship between them has “fundamentally and irreparably broken down”. Mr Schröder says that he has no trust and confidence in Mr Williams. At [45(e)] of his affidavit he says:

I do not feel that I could effectively work with Mr Williams if he was reinstated to his employment with Natural Solar. That is particularly so given the seniority of Mr Williams’ position. I no longer have trust and confidence in Mr Williams as a result of the conduct he has displayed over a protracted period of time.

75    The other witnesses – Messrs Grüber, Evans, and Stronach – give evidence in similar terms. Mr Stronach gives evidence that some staff members have expressed “genuine dissatisfaction” with Mr Williams’ management. It is very difficult to make an assessment of the reliability of this kind of information. The evidence – for example that of Mr Stronach – is in broad and general hearsay terms, attributing viewpoints to “the staff” and “the sales team” with only one or two specific examples (see for instance [70] and [73] of Mr Stronach’s affidavit). In relation to one of those examples, Mr Williams was able to give a cogent explanation for the departure and return of the named former employee by referring to sensitive details of that employee’s health (which will remain subject to a non-publication order).

76    The evidence that the relationship between Mr Schröder and Mr Grüber on the one hand, and Mr Williams on the other, was not a constructive working relationship is found not only on the accounts of the four deponents for the respondent, but on the applicant’s own evidence. At [80] of his affidavit in support, he cites Mr Schröder becoming aggressive, and saying things such as “You are stuck in your personality disorder” and “[Mr Grüber] wants to get in a fucking fist fight with you”. He said that Mr Schröder told him that “I am in between. I am fucking annoyed by you and am fucking annoyed with the results, I just want to get rid of the whole shit”. In October 2023 Mr Williams said that Mr Schröder said he would “tear up the contract” (which he assumed meant the SPA) and that he would “set up shop and compete directly with Natural Solar”.

77    The applicant points to the fact that Mr Schröder and Mr Grüber are resident in Germany. Those are the two people with whom Mr Williams had the significant personal difficulties. He has not recorded such difficulties with Mr Evans and Mr Stronach, despite their attendance to his dismissal meeting, although otherwise it does not seem that there was much day-to-day personal contact with them.

78    The respondent took me to Rugg v Commonwealth [2023] FCA 179 on the question of whether reinstatement should be ordered in circumstances where a relationship has broken down. In that case, the applicant was the sole staff member of an independent Member of Parliament, where (but for the Commonwealth undertaking not to terminate Ms Rugg’s employment) the employment relationship would have been at an end. Mortimer J deals at [45] with the question of whether the principles of specific performance in the JC Williamson v Lukey sense, or the workplace rights regime, is more suited to a situation where the employment relationship is not ongoing. Her Honour cites Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [100] where Bromberg J considered that the “older approach to specific performance may not be suited to modern employment contracts, to the FWA scheme, nor to modern considerations of workplace rights”.

79    I take the same view in this case as Mortimer J did in Rugg at [43] where her Honour says that:

… this particular interlocutory application cannot turn on the strength of the serious question to be tried. Rather, I consider the ultimate decision about where the interests of justice lie is to be determined by an assessment of what would be injustice or injury to Ms Rugg if her interlocutory application were refused, weighed against the injustice or injury to Dr Ryan (and, to a lesser extent, the Commonwealth) if the interlocutory application were granted. That is why the word “balance” appears in the phrase “balance of convenience”.

80    I note that the refusal of a reinstatement in Rugg turned partly on the analysis of a much closer relationship between an MP and their Chief of Staff than is the case in the Natural Solar workplace. Any reinstatement would be for the period from the date of the orders until 30 June – less than six weeks – and not until the final determination of this matter. In Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250, the Court referred to the unlikelihood that the applicant’s final hearing could be heard before the end of her contract, and that, in a circumstance where there had a been a loss of trust and confidence, and the respondent had commenced a process to replace her, the disruption caused would be too great. Here, those factors are not here present. The applicant has not been replaced by an outside candidate; rather, Mr Stronach has taken on the role in addition to his duties with 1Komma5, and the period of reinstatement sought is finite and short.

81    Mr Williams makes out an arguable case that the timing of the termination was influenced by the proximity of the earn-out period ending. He points to a lack of symmetry between what the respondent says now about the importance of the period leading up to the 1 July 2025 rebate scheme, and how Natural Solar’s case was put before me. Mr Stronach said that the “next few months in the industry are expected to be quieter than normal with the significant ramp in sales and installations occurring from July onwards”. As pointed out by the applicant, this is inconsistent with the industry recommendations and 1Komma5’s own position as to installations prior to 1 July 2025, as long as the batteries were not used prior to that date. The Smart Energy Council conference with the Minister for Climate Change and Energy, the Hon Chris Bowen MP, underscored that installers could start taking customer orders “immediately” and should not await 1 July to install.

82    It is difficult to determine on an interlocutory basis where the truth lies, but even if one accepts that there were difficulties for some time between Mr Williams on the one hand and the officers of the respondent on the other, those difficulties were not significantly different than they had been for some time and the timing of the termination does lend itself to concerns as to the motivation behind it. That is a factor that tends in favour of the balance of convenience being Mr Williams’ way, as he has much to lose from Natural Solar not reaching its revenue projections and no control over it if he is not reinstated, and Natural Solar’s risk is fairly low in that short period to 30 June 2025.

83    A further factor arises. After the argument in this matter took place on 14 May 2025, I reserved my decision and sought to prepare reasons for an ex-tempore decision on 16 May 2025. On calling the matter at 4.00pm, counsel for the respondent informed me he had been informed earlier that day that Mr Williams had been removed as a director on 15 May 2025. As Ms Gall pointed out, this had not been mentioned at the hearing of the matter (which went for most of that day), and indeed it appears that Mr Minucci’s instructions were only updated quite recently before the hearing on Friday 16 May. As a result, I re-reserved my decision and sought to consider the matters which arose out of Mr Williams no longer being any part of the management of Natural Solar.

84    Whilst preparing my reasons after the hearing on 14 May, I was somewhat comforted that Mr Williams was a director of Natural Solar, which gave him a minority position in the direction of the company. He still had some measure of influence or control, and the other directors maintained their fiduciary duties to Natural Solar (as distinct from those owed to 1Komma5 or the other companies in the group). The balance of convenience, with Mr Williams as a director, was then more evenly balanced.

85    While it is impossible to predict what Mr Williams will be able to do in that short time for the benefit of Natural Solar and, incidentally, himself in the context of the earn-out period, it is very unlikely that he would use his time to inflict damage on the company, because of the personal benefit he would gain in trying to generate the projected levels of income which 1Komma5 now say is unlikely to be met.

86    Taking into account all of the factors set out above, I find that the balance of convenience – while it was evenly balanced before his removal as director – tends slightly to the side of Mr Williams being reinstated for the short period sought in the orders.

Clean hands

87    Counsel for the respondent submitted that Mr Williams had not come to court with clean hands. The main basis for this was the surreptitious recording of the termination meeting, which I have dealt with above. I have found that in the highly charged context of the surprise termination meeting, where Mr Williams was visited in his office by Mr Stronach and Mr Evans and another person, without warning, he was within his rights under the Surveillance Devices Act to record the meeting to protect his legitimate interests. Accordingly, I would not regard that as an element of illegality which would incline me to refuse relief on that basis.

88    The respondent also relied on the applicant’s post-termination conduct in retaining his laptop which, the respondent says, contains confidential information belonging to Natural Solar. As noted, the then-current state of affairs involved correspondence (being Exhibits A1 and A2) which set out each party’s contentions in relation to confidential information and access to online services. The evidence shows that Mr Williams has been providing support to Natural Solar to gain access to those services, but the process is not yet complete. The process is in the hands of solicitors and from Mr Williams’ solicitors’ reply, appears to being dealt with more or less constructively. The respondent has in the correspondence shown a bullish attitude to timeframes and while it is not clear whether Mr Williams has been doing all he can, he has nonetheless done quite a lot in order to ensure that Natural Solar has access to online services. There is a dispute about confidential information on the laptop but this is not a matter which would be, in my view, a basis for refusing relief, were I otherwise minded to grant it, on the basis of unclean hands.

Are damages an adequate remedy?

89    The respondent says that the parties are “only fighting about money” and the thrust of the applicant’s reinstatement application is to preserve his financial interests in relation to the earn-out period. It submits that “it is well settled that interlocutory orders are ordinarily only granted where the remedy available at a final hearing would be inadequate” citing Heavener v Loomes (1924) 34 CLR 306.

90    The applicant pointed to the importance of the remedy being a statutory one, specifically allowing for reinstatement, in the context of the usual requirement for damages being inadequate as being of lesser importance in this case (see Capcoal and CFMEU v PIM, cited at [32] above). Instead, it was submitted, the question should be: what is the course which carries the lower risk of injustice?

91    The respondent points me to the decision in Russell, where Foster J found that the applicant had established a prima facie case of a breach of her employment contract (at [73]) but declined to order an interim reinstatement, where her contract had only a short period left to run (at [84]). The first ground of refusing relief was that the applicant had failed to demonstrate that damages would not be an adequate remedy. In that case there was not the complicating factor of the earn-out period, nor the removal of the applicant as a director of the company. It is not correct, as the respondent contends, that the applicant has demonstrated “no particular hardship or difficulty” if the reinstatement orders are not made.

92    I do not accept that the question of adequacy of damages is entirely irrelevant to a statutory reinstatement claim. But here the applicant, if he were not reinstated, faces the difficulties of demonstrating what the damages would have been would he not have been terminated in the complex factual matrix of the looming 1 July 2025 rebate date, and the other issues which are swirling around as to the performance of Natural Solar. This is more than merely a “difficulty in assessing damages” question, and a failure to reinstate would deprive the applicant of the ability to demonstrate that he could in fact reach his earn-out figure in the time remaining.

93    It seems to me that the question of the applicant’s rights as an employee, possibly the subject of an adverse action, and his removal as director, along with the complex variable payout components of the SPA, combine to make the short-term reinstatement of the applicant the course which is least likely to amount to an injustice if at the end of the day the applicant is not successful in his substantive claim.

94    I have to confess that this has not been an easy decision, and the lack of trust and confidence in Mr Williams by the directors of Natural Solar was a powerful factor in the respondent’s favour. However, the concerns as to the motives behind his reinstatement, the harm that may be caused to Mr Williams and his financial interests, and the protection for the respondent to seek the leave of the Court for any further detrimental action to be taken, has added to my view on the balance of convenience to come to a place of satisfaction in making the orders sought.

What orders should be made?

95    On 21 May 2025 I made orders reinstating the applicant pursuant to s 545 of the FW Act. An interim non-publication regime was agreed upon. I will determine the ongoing non-publication orders on the papers, to be made until the final hearing or other disposition of this matter.

96    The matter has been referred to the National Operations Registry for the allocation of a Docket Judge. The parties have liberty to approach my chambers, or that of the Duty Judge, on two days’ notice by email, if any leave pursuant to order 2 is required, if no Docket Judge has been allocated at that time.

Associate:

Dated:    23 May 2025