[1] Brothers David and Hamid Eghlima (the 'applicants') had been employed as Electricians/Technicians by Winco Systems Pty Ltd (the 'respondent' or 'Winco') since 8 January 2007 and 1 June 2007 respectively. The applicants were required to install and repair electric window systems on a variety of commercial and domestic building projects. These projects included the Universities of Sydney and New South Wales, King Street Wharf, NIB Building Newcastle, Warragamba Dam, Star City Casino and Charles Sturt University in Orange. This being the case, they were required to travel to various work sites in the metropolitan area, in regional locations and interstate, while at all times being under the direct control and supervision of Mr Peter Behrens, the respondent's owner.

[2] The applicants had both been working on a job in Canberra at the Florey Primary School on 30 November 2011, having driven to the job together that morning. While driving back to Sydney that day, the applicants received two mobile phone calls from Mr Behrens. It was said by the applicants that in the second phone call, Mr Behrens dismissed both of them without warning. The respondent's version of the conversation was that the applicants had refused to carry out their duties and had effectively resigned their employment, without notice. Unsurprisingly, there is a contest about what was said in these conversations, and in later conversations. I shall return shortly to the evidence adduced as to these conversations and subsequent relevant events.

[3] On 7 December 2011, the applicants filed applications pursuant to s 394 of the Fair Work Act 2009 ('the Act') for relief from unfair dismissal. They do not seek reinstatement, but rather compensation under various heads of claim as pressed by their legal representative, Mr M Warren on the first day of the hearing of the applications.

[4] It is clear that the first issue which must be resolved by Fair Work Australia (FWA) is whether the Tribunal has jurisdiction to determine the applicants' unfair dismissal claims. This is a specific requirement of s 396 of the Act which is as follows:

'Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.'

In this case, the question is whether the applicants were persons protected from unfair dismissal (subsection (b) of s 396). The preliminary issue arises in the context of the respondent's insistence that the applicants were not dismissed - a jurisdictional prerequisite under s 386(1) of the Act. That sub section is expressed as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.'

[5] If the applicants were not dismissed, then axiomatically, they cannot have been unfairly dismissed in accordance with s 385 of the Act. In this respect, all four subsections in 385 must be satisfied, being: (a) the person has been dismissed; (b) the dismissal was 'harsh, unjust or unreasonable'; (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; (d) the dismissal was not a case of genuine redundancy. I would observe that subsection (c) was not argued in this case. For completeness, I note there was some last minute attention given by Mr Warren to a suggestion that the respondents may have purported to have made the applicants redundant, but that their redundancies were not genuine. I do not consider that this suggestion has any merit (although it was not put with much vigour or surety). In any event, from the uncontested evidence of the respondent, I do not see how it was possible to advance such a proposition, particularly as it was made at the 'heel of the hunt' without any notice to either the Tribunal or the respondent. The applicant's primary argument is that their dismissals were 'harsh, unjust or unreasonable'. However, this question will only fall for consideration if subsection (a) is satisfied. It is to that question which I now turn.

[6] At the outset of proceedings, I ruled that the evidence in one matter shall be the evidence in the other.

[7] There were four witnesses in this case - Mr Hamid Eghlima and Mr David Eghlima, and for the respondent, Mr Peter Behrens and his wife, Mrs Cordula Hohnen-Behrens (Mrs Behrens). To avoid confusion, I shall hereinafter refer to the applicants as David and Hamid.

[8] David said that on 30 November 2011, he left his home in Hornsby around 6:30am and drove in the Company vehicle to Macquarie Park to pick up his brother. His brother then drove to Canberra. They did not stop for breakfast. David said that when they arrived at the School, the faulty window was about 2 and a half metres from the ground. While he was on a ladder, he fell and hurt his ankle and knee. They completed the job in about 3 hours and left Canberra at about 2pm. Because of David's leg injury, Hamid drove back to Sydney.

[9] Around 4pm, while still in the car, David said he received a mobile phone call from Mr Behrens. He put it on loud speaker. Mr Behrens told him to come back to the office at Brookvale to discuss a job in Port Macquarie the next day. David told Mr Behrens that he had hurt his leg and could not drive to Port Macquarie the next day. Mr Behrens became angry and told him the job had to be done tomorrow. He then shouted at him and said he wanted to speak to his brother. Hamid said that he could not talk while driving and he would speak to him when they got back to Sydney.

[10] Mr Behrens rang back again at 6pm when they were nearing Hornsby. He spoke to Hamid and said 'they' would have to go to Port Macquarie and do the job and return the same day. Hamid said that he could not sit in the car for another 9 hours, as he had driven both ways, to and from Canberra, and his back was hurting. Mr Behrens shouted in reply that the job needed to be done and 'you are not useful to me anymore. I can't keep you employed anymore.' Hamid said that this was not the right way to talk to them after 5 years and all of their good work. He told Mr Behrens he would get a doctor's certificate. Mr Behrens repeated 'You are not useful anymore. I can't keep you employed'. Hamid told Mr Behrens he could do a job in Sydney, but he could not go to Port Macquarie, as he wouldn't 'kill myself for money.' Mr Behrens insisted he go to Port Macquarie, otherwise he wouldn't be kept employed. He then said that with his background and nationality he wouldn't be able to find another job. When David said 'what's wrong with our nationality?', Mr Behrens hung up. David said he was shocked by these conversations after all the good work he had done for the respondent.

[11] David said that, at around 6:30pm, he rang Mr Behrens to try and resolve the situation. He put the call on loudspeaker at his apartment. He told Mr Behrens that for 5 years they had done all the big jobs. The customers were happy, he wanted to continue working for the respondent, and he couldn't understand why Mr Behrens was treating them in the manner he was and they didn't like it. Mr Behrens said the job had to be done the next day. Otherwise, he and his wife would come and pick up the van and the tools. David said Mr Behrens repeated the nationality remark. He told Mr Behrens that, as the van was his property, if he wanted it, he could pick it up.

[12] About half an hour later, Mrs Behrens, the respondent's Financial Controller, rang David back. Hamid was still there and he put the phone on loudspeaker. David said she coldly stated 'I heard you guys do not want to work for Winco anymore.' Hamid told her that that wasn't right, it was just because of their medical conditions that they couldn't go to Port Macquarie. He was happy to work in Sydney. David said Mrs Behrens replied that it was too late, they were finished from that day and she demanded a resignation letter. Hamid said he wasn't signing anything, as he hadn't resigned. When she insisted he had resigned, he had said he was stressed out and in pain and he asked if they could talk next week. She insisted a resignation letter be signed, which she would email to them. Hamid told her not to bother, as she couldn't force him to sign.

[13] Mr Behrens and Mrs Behrens arrived outside the apartment around 8pm and David met them downstairs. They could see he was limping and he told them he was going to the doctor the next day about his injury. They checked the van and asked for the keys and the petrol card. Mrs Behrens produced a piece of paper and flattened it out on the bonnet. She said it was a resignation letter and he had to sign it. He refused. She said they would receive their outstanding entitlements and she was sorry for what had happened, but they were finished from that day. He replied 'we didn't finish. You finished us.'

[14] David received a medical certificate and was unfit for work until 5 December 2011. On 2 December, he received an email from Mrs Behrens headed 'Immediate Employment Termination Notice'. In this letter, it was claimed that as he had told her and Mr Behrens that he did not want to work for Winco anymore, his employment was immediately terminated. I reproduce this and other exchanges of relevant emails that followed:

You told us Wednesday, that you do not want to work for Winco any more, that you cannot work together.

That means our Employment Relationship with us was immediately terminated with effect on 30/11/2011.

All other consequences from your immediate termination will be notified to you.

We will certainly write a reference for you and certainly you will receive all your entitlements.

The property of Winco System, the van, the computer and hopefully all tools (which you had from us in good faith) we collected

A written letter has been sent out today. Expenses, your last timesheet...you can scan and send us via email

There is no need to come to the office on Monday, 5/12/2011

We are confident that you will find new and better employment conditions as electrician with less driving... as you had with us.

First of all I hurt me leg in Canberra and I have a medical certificate up to Tuesday next week. The second thing is that we never said we don't want to work Peter told us that he doesn't want us any more, that's why when he said he is coming to pick of the van on Wednesday right after we arrived from Canberra I said it is ok.

I am sorry about your leg. Unfortunately you said you would not want to work for Winco and you could not work with Peter. When we opened the car Peter asked you if you would not want to keep the shoes and the helmet, you said you wanted none of it any more. So we left. We are not a kindergarden (sic) and unfortunately we had to accept your decision and picked up the van. When I talked with Hamid over the phone he repeated he would never work for Winco any more, not one day. I asked him if he could send an email confirming this, which he refused. He only wanted that I write a nice reference for him, which I promised to do.

Unfortunately this has happened, your employment has terminated and the letters are sent out.

Mr Behrens sent both applicants the following email on 9 December 2011:

I tried many time to contact you and Hamid the last days without success.

I have written also an email to you to contact you.

By Australian law you are obliged to cooperate for another 2 weeks if we have any questions about the current work and past work relations.

If you do not do so, avoid to do it or even do not care at all, what seems to us is the case currently, you may loose (sic) substantial parts on your entitlements.

So please don't hide. Call me and answer my calls and emails.

[15] David denied ever resigning from the respondent or being unwilling to work. He obtained a further doctor's certificate on 7 February 2012 in relation to the treatment he was receiving for his work related injury.

[16] On 12 February 2012, the applicants received an email from Mrs Behrens accusing them of being 'criminals' and of defrauding the respondent. She threatened to make a complaint to the Police and further 'damage' them. David strongly denied her allegations and said he had always provided full records of his working hours and expenses, in a timely manner.

[17] In oral evidence, David deposed that he could not recall Mr Behrens phoning him around 11am on 30 November 2011 and asking where he and his brother were, as the client was inquiring as to their whereabouts. He believed they arrived in Canberra around 11am. David said he fell off the stepladder soon after commencing the job that day. Nether he or his brother advised Mr Behrens of his injury at the time. He was unaware of any requirements or company policy which required him to do so. He did not advise anyone onsite or seek any medical treatment or first aid that day. He just wanted to get back to Sydney and they did not stop on the way back.

[18] David agreed it was not unusual for Mr Behrens to ask them to go back to the Brookvale office. He denied that Mr Behrens had only wanted one of them to go to Port Macquarie. He could not recall if the first phone call lasted for over 8 minutes. He agreed he hadn't written all of what was said during the conversation in his statement. He denied his recollection of the conversation was 'selective'. David believed that Mr Behrens knew why they couldn't go to Brookvale. David insisted there was a second phone call from Mr Behrens around 6pm. By this time, it was clear that Mr Behrens was only requesting his brother to go to Port Macquarie. He wasn't aware of Mr Behrens offering to drive.

[19] David accepted that it was not until the second or third conversation with Mr Behrens that he had terminated their employment. In the third conversation, he said he was coming to pick up the van and the tools.

[20] David said he had observed and listened to the fourth conversation between his brother and Mrs Behrens. He denied Mrs Behren's version of this conversation; in particular, denying that his brother had said they didn't want to work for Winco anymore. He denied that Mrs Behrens had asked them to help with the jobs which needed to be done in the following week.

[21] David was closely questioned as to the fourth conversation when Mr Behrens and his wife arrived around 8pm at his apartment to pick up the van. David said he came down from the 5th floor apartment after receiving a phone call from Mr Behrens. He was limping and told them that he was going to see a doctor about his injury. David said his brother remained in the apartment because he did not want to face them. David said he didn't read the piece of paper Mrs Behrens laid out on the bonnet of the van. She had said it was a resignation letter and he needed to sign it. He refused as he hadn't resigned. David could not recall if the document was typed or handwritten.

[22] David agreed that Mrs Behrens had offered them to take their work shoes and protective equipment, but he refused. This conversation was not in his statement because he didn't think it was relevant. He agreed that this was the only part of the conversation which they both agreed had been said.

[23] David said that his brother later told him that he had been watching them from a third floor balcony, after using a key to enter a friend's apartment. He had heard everything which was said. When David returned, his brother was back in his apartment on level 5.

[24] David said that, up to this point, he and his brother had had a good relationship with Mr and Mrs Behrens and they had attended both of their weddings. David said that, despite their good relationship, Mr Behrens would still be regularly checking up on him. David agreed that he and his brother had a great deal of autonomy in terms of the work they performed. However, Mr Behrens would call them at least 6 or 7 times a day. Time sheets were provided on a monthly basis. He had not provided the November 2011 time sheet on legal advice that they not contact the employer. David said he would record work details in his diary on a daily basis and then transfer the details to the monthly time sheets. He has the records for November 2011.

[25] David was asked about the requirement for all employees and contractors to scan on and off the Multiplex job (University of New South Wales). As part of the induction on site, it was important for Multiplex to know who was on and off the job at a particular time. He and his brother had received the scanning cards. He was asked to explain how a time sheet he had prepared had disclosed that he and his brother had worked on the site 33 days, but the scanning records showed his brother only scanning 6 times and he, only 12 times. He said that sometimes the security wasn't there or they had to carry tools and equipment from 1-2 kilometres away. However, the Multiplex supervisor always knew when they were on site.

[26] David said that after picking up his brother, there were 3 ways to get to the Multiplex site at the University of New South Wales. They would arrive about 7:30am, look for offsite parking and carry their tools and equipment to the site. The time would depend on the traffic, finding a park, collecting materials and going to the office.

[27] David was questioned about an incident on the NIB job in Newcastle when Mr Behrens tried to call them after a complaint from the client that they hadn't arrived. David explained that they had been waiting at the gate to be let in. He could not recall another occasion when Mr Behrens couldn't find him on the Multiplex job.

[28] David deposed that he had wanted to come in to the office on 6 December to talk about what had happened, but they were told they were dismissed. While Mr Behrens had been trying to contact them, David said that his lawyer had told him to have no contact.

[29] David was asked about a notice to produce his phone records. He claimed he had thrown them out, as he had no reason to keep them and only kept the front page, including a most recent 15 page account for May 2012.

[30] David said he had tried to retrieve invoices and other records in answer to the summons, but it had been difficult getting them from his accountant. He conceded he did have invoices at home and was able to get all the records from his accountant. David said he had no phone records for his fixed home phone.

[31] David said that since their dismissals he and his brother had set up their own business (HD Electrical) around January 2012 and had been doing a small amount of work. He had already been working for the building manager in the building where he lived, doing odd electrical jobs. He agreed the ABN for the business was dated January 2008.

[32] David said that since January, he and his brother have concentrated on building up their business and had not sought any alternative paid employment. The business is a partnership with its own ABN and bank account which can be drawn upon by both of them. He acknowledged the account was in operation prior to 30 November 2011, but only in respect to the small building strata management jobs. However, he could not recall exactly how long the account had been open for. David said he also had credit cards and a private savings account.

[33] David was shown a bundle of invoices for HD Electrical from 7 December 2011 to 4 June 2012. All of them were signed by him and only one signed by his brother. The first one was numbered 11.39. He agreed there may have been earlier invoices. David agreed that the business was set up in January 2008 and has its own web page created by his brother. The invoices disclose the webpage address, their mobile numbers and licence numbers. He agreed the webpage was created earlier than January 2012 and contained photos of work which had been performed by them on Winco's projects. David conceded he had not asked for his employer's permission to take the photos and post them on HD Electrical's webpage. Nor had he told the employer that he and his brother had been running a separate business. He didn't think he had to, because it was done in their own time. The first page of the website disclosed that they were available 24 hours, 7 days a week with emergency callouts. He agreed business cards for their company had been printed, but only after he and his brother were dismissed.

[34] David was asked about their hours of work on the University of NSW job. He said that the employer was always checking the tolls, the parking, petrol and other expenses for which they were reimbursed. He was aware that the respondent had alleged certain discrepancies between the records and the timesheets. He explained that they may have been buying and preparing materials, talking to the builder or carrying tools from the car to the site. He strongly denied any fraudulent activity.

[35] David was asked about a contract of employment given to him and his brother about 2 weeks before finishing up with the respondent. They had not signed it. He agreed it included a disclosure requirement if they performed other similar work to that of the employer. He had not signed it for reasons other than that he was running his own business.

[36] David deposed that while he had earlier told the Tribunal he could produce his diary for work performed for Winco, he now could not find it. However, he was certain the diary did not contain details of work he performed for his own company. As to his company's business cards, David said he believed they were printed by a company in Parramatta and paid for using a credit card in both their names.

[37] David was shown a bundle of Commonwealth Bank records disclosing that the business account operated by himself and his brother had an amount of $8031 credit as of 12 December 2011. He agreed he had operated the account earlier than 30 November 2011. He said in evidence that he had no other bank records for earlier than 30 November, but believed they could be obtained from the bank.

[38] David was questioned about the toll tag in the company vehicle and their driving movements on 30 November 2011. He said the traffic was very heavy at the time. He again explained the scanning discrepancies on the University of NSW site. Sometimes they didn't scan in, other times they used a back entrance that didn't have scanning equipment or they were carrying work items and didn't scan in. In re-examination, David said that when Mr Behrens came to the site, he didn't see him sign in or scan in. In further re-examination, David said that the employer had continually checked their expenses throughout their employment and they would be paid any expenses due after 2 or 3 weeks.

[39] David described the work at the University of NSW job. He believed they may have actually finished the job earlier than planned and they received references from the contractor they were subcontracted to for the work they had performed. David gave a detailed description of the materials and tools they were required to carry on to and off the University of NSW job site and the difficulties in parking offsite. David identified a number of other jobs where they had received references, although Mr Moore, Counsel for the respondent, doubted their relevance as they were dated 22 December 2011. Mr Moore noted that there was no issue prior to 30 November 2011 about the applicants' work performance. The respondent's concerns arose later.

[40] David said that he had performed 44 major jobs for Winco over the years. At the time of commencing their employment he and his brother had been unaware that they would be required to work long distances from Sydney. They had no contract of employment; only a letter of offer. David gave further details of some of the major jobs he had done for Winco. As to the $8000 in the business account, David said it was probably attributable to a 5-6 month period for work performed on weekends only for his own business. Since his dismissal he and his brother had only earnt about $10,000 each from their business.

[41] David deposed that he had never received any safety training and that he had been injured many times over the 5 years of employment with Winco. However, he didn't stop work when injured, because it was just he and his brother who performed the work. David said he had a lot of accumulated sick leave.

[42] David emphasised that he had never resigned and he had no doubt he had been sacked. He was very upset on 30 November 2011 and couldn't believe how he and his brother were treated after 5 years of doing everything for the employer. He said that in that time, despite constant checking of invoices, dockets and timesheets and Mr Behrens constantly phoning, or turning up on site, there was never any issue put to him about inconsistencies in the timesheets.

[43] Hamid's statement was largely corroborative of and, in many respects, identical to his brother's evidence. To that extent, I will endeavour not to repeat it. He also described the trip to Canberra on 30 November 2011 when he had driven down and back after his brother had fallen off a ladder and hurt his ankle and knee.

[44] Hamid said he had heard what Mr Behrens had said in the phone conversation around 4pm on the way back as his brother put the phone on loudspeaker. Mr Behrens became angry when David had said he had hurt his leg and wouldn't be able to drive to Port Macquarie. Mr Behrens asked to speak to Hamid, but he said he couldn't because he was driving. When Mr Behrens phoned back he insisted that Hamid go to Port Macquarie the next day, but he said he couldn't do so because his back was hurting after driving both ways to Canberra.

[45] Hamid reiterated the words his brother said Mr Behrens had used, being 'The job needs to be done, you are not useful to me anymore. I can't keep you employed anymore'. When he protested about their treatment, Mr Behrens repeated the comment. He told him that he wouldn't kill himself for money, but would do a job in Sydney. Mr Behrens said he had to go to Port Macquarie otherwise he couldn't keep him employed and with his background and nationality he wouldn't be able find another job. Hamid replied_: 'What's wrong with our nationality?'_ Mr Behrens then hung up.

[46] Hamid said that because of his back injury, his doctor had told him not to be in a car for more than one hour whenever he was in pain (from Doctor's certificate of 1 December 2011). Hamid gave the same account as David of the conversation with Mr Behrens at around 6:30pm that day. Hamid described exactly the same version of the conversation with Mrs Behrens concerning her insistence that he and his brother sign a resignation letter.

[47] As to the conversation between his brother and Mr and Mrs Behrens downstairs outside the apartment, Hamid said:

'I was on the balcony and could see and hear what was occurring.'

There was no mention in his statement of going to level 3 and using a key to enter a friend's apartment or of him telling his brother he had done so. He then described the same conversation as his brother records as between his brother and Mrs Behrens.

[48] Hamid said that he attended a medical appointment with Dr Fong regarding his back pain with on 1 December 2011 and received a certificate excusing him from work from 1 December to 5 December (curiously, exactly the same period as his brother after visiting the same doctor on the same day). He emailed the certificate to Mr Behrens and told him he would 'attend the office on 6 December 2011'. About 12:40pm, Hamid received the same email from Mrs Behrens as his brother, indicating he was immediately terminated because of his unwillingness to work. He responded as follows:

Regards your email, this is not true, i never said i'm resigning in fact i am still working for winco system.

The discussion we had on 30/11/2011 was, peter behrens ask us to drive 8 hours to other city to do the job over there and com (sic) back to Sydney in same day, I said i have medical condition and i can't sit in the car for that long hours, because of this after nearly 5 years peter unfirly (sic) told me, i cannot employe (sic) you any more, he came and collect the van and all the tools.

Anyway i have medical certificate and this was peter decision to immediately terminat (sic) our enployment (sic) relationship and he prove that by collecting the van and all the tools on 30/11/2011

You told us Wednesday, that you do not want to work for Winco any more, not even one day.

That means our Employment Relationship with us was immediately terminated with effect on 30/11/2011.

All other consequences from your immediate termination will be notified to you.

As discussed Wednesday on the phone already, we will certainly write a reference for you and certainly you will receive all your entitlements.

The property of Winco System, the van, the computer and hopefully all tools (which you had from us in good faith) we collected on Wednesday already. Expenses, your last timesheet...you can scan and send us via email. There is no need to come to the office on Monday, 5/12/2011

We are confident that you will find new and better employment conditions as electrician with less driving...as you had with us.

A written letter will be sent out today. As I have only your former address with David I will send it there, if you do not send your new address.

I am very sorry for all this but I wish you all the Best for the future

[49] Hamid denied ever saying that he was unwilling to perform any future work for Winco. He had only said that because of his injury, he was unable to spend so much time in the car to go to the job in Port Macquarie. He denied ever resigning.

[50] On 7 February 2012, Hamid received a further medical certificate from Dr Fong in relation to his work related injuries and recurrent back pain from April 2009 and earlier.

[51] Both applicants received the same email from Mrs Behrens on 12 February 2012 accusing them of being 'criminals' and committing fraud against the respondent. Hamid denied these allegations and said he always provided records of his working hours and expenses in a timely manner.

[52] In cross-examination, Hamid explained that he had been out of Australia for 3 and a half months and returned from Iran at the end of September. Although he had since worked for HD Electrical, he had not worked much due to his back pain and being overseas. He had not been in any other paid work since his dismissal, other than seeking work for the partnership with his brother. He recalled working with his brother on a school in Eastwood which he had signed the invoice for. There was no particular reason why he had signed the invoice and not his brother.

[53] Hamid confirmed that HD Electrical had been in existence prior to 30 November 2011 and had operated a joint bank account. He wasn't sure if credit cards were attached to the account prior to this time. The company had a website, which included mobile phone contacts and photos which he had recently created. He agreed the photos were primarily of work performed by him and his brother while working for Winco.

[54] Mr Moore took Hamid through the various conversations he and his brother had with Mr and Mrs Behrens on 30 November 2011, pointing out that he and his brother's versions of the conversations were identical. However, Hamid said he didn't recall everything that was said and couldn't recall if the first conversation lasted for 8 minutes. He couldn't exactly recall the route they took to and from Canberra that day. He said he drove back to Hornsby that day partly because David had hurt his leg, but also because a friend of his lived in David's building and he was minding his place while he was overseas. He had not spoken to or called out to the Behrens when they arrived later to pick up the van. He was upset and in pain himself and didn't want to speak to them, because Mrs Behrens was forcing them to sign a letter of resignation.

[55] In a further phone call around 6:30pm that evening, Mrs Behrens said that she wanted him to go to Port Macquarie the next day. Hamid agreed that in a third conversation between his brother and Mrs Behrens, he gave no indication he was present, nor does his brother.

[56] Hamid agreed he was not dismissed in the first conversation but rather by Mr Behrens in the second conversation when he said 'the job needs to be done and he was not useful to me'. He had explained that having driven both ways to Canberra, he couldn't sit in the car for another 9 hours. He told Mr Behrens what excellent work he and his brother had done for him and how the customers were always happy.

[57] Hamid denied that he had answered Mr Behrens' first phone call. Mr Behrens had not said that he needed someone with authorisation to accompany him to Port Macquarie to enter the site. They had not discussed anything about the job because he was driving. In the later conversation he could not recall if he told Mr Behrens that he couldn't drive for more than one hour if he was in pain. However, Mr Behrens' evidence was that he had. Hamid believed he mentioned 9 hours being a long time to drive and that Mr Behrens may have been confused with the doctor's certificate. He denied saying he would not drive longer for 1 hour after Mr Behrens had said they had a problem. He also denied telling Mr Behrens he did not want to work for Winco anymore and 'there was something wrong with the Company anyway'. He denied it was he who hung up in the first conversation. He denied 'making up' with his brother, the words said to have been used by Mr Behrens in the second conversation.

[58] Hamid said his brother had rung Mr Behrens at 6:30 to try and resolve the situation. He denied that his brother had agreed with him that he wouldn't work for Winco anymore. Hamid denied that Mrs Behrens had said that she had heard that they didn't want to work for Winco anymore and how awful this was and surely it can't be true. He denied all of Mrs Behrens' version of this conversation. Hamid could not explain why he and David, as the only electricians doing the work for Winco, would be dismissed when work was available for them.

[59] Hamid affirmed his earlier evidence that on the night in question, he went down to his friend's unit on the 3rd floor and could hear everything which was said between his brother and the Behrens. He now recalled Mrs Behrens referring to them taking the work boots and protective gear, but had not mentioned this in his statement.

[60] Hamid was asked about his attendance on the University of NSW job and said that, despite only being scanned on 6 days, he was there all the time. They had used a back door. He said his brother had kept a diary in a notebook of all the hours they had worked and he had trusted him to do it. He agreed there were monthly reimbursements of expenditure and overtime worked. He was aware that the employer had timesheets showing them commencing work at 7:00am or 7:30am, but with Harbour Bridge records showing them on the Bridge at 10:00am. On another occasion, the Bridge record showed a crossing at 7:42am, but the site records did not show them signing in at the site until 10am. He explained that this was because they may have had to buy materials, go to the office or find parking.

[61] In re-examination, Hamid detailed the conversation with Mr and Mrs Behrens and said he believed he was dismissed by Mr Behrens in the second phone conversation. He queried why he would have resigned at the end of the year.

[62] Despite Mr Moore's understandable objection, Mr Warren was granted leave to re-examine Hamid in respect to photographs recently taken by him of his brother's apartment block and the adjacent road. He marked the photos as to where he and his brother and Mr and Mrs Behrens and the van were on 30 November 2011. In further cross-examination, Hamid said that his brother and Mr and Mrs Behrens were standing on the passenger side of the van nearest the building. His brother was facing away from the building and the Behrens towards the building on an angle. Mrs Behrens walked around the van and was checking it thoroughly. Mr Behrens just followed her. Hamid claimed that he didn't stand up properly and was crouching behind the balcony railing because he didn't want them to see him.

[63] In further re-examination, Hamid explained when and how he received his back injury in 2008. He and another person had moved the office to Brookvale and in 2009, a large heavy window arrived from Germany. It took 4 people to carry it up 2 levels into the showroom. His pain became worse, he visited his doctor regularly and was eventually admitted to hospital. Mr Behrens was well aware of the injury and had queried him about it. However, he could still drive long distances, despite the pain. He said he was reluctant to keep mentioning his injury to Mr Behrens because he feared the consequences of doing so and that the consequences he had feared had now occurred.

[64] Mr Peter Behrens' version of the Canberra incident on the 30 November 2011 was that he had been informed by the customer that David and Hamid arrived at around 12:35pm and left at approximately 2pm. He disputed that the applicants' had left Sydney at 6:30am, as it was a three and a half hour trip to Canberra. He produced tollway records showing the company vehicle passing the M2 tollpoint at 8:44am at a location which is 5 minutes from where Hamid lives in Macquarie Park.

[65] In respect to the phone conversation at 4:30pm, Mr Behrens disputed the applicants' version to the following effect: Mr Behrens had told Hamid that he would drive to Port Macquarie as he only needed one person to accompany him. Hamid said he couldn't go because of his back pain and that he couldn't drive for longer than one hour. Mr Behrens noted that most journeys from Macquarie Park to the City, or even to Canberra were longer than 1 hour. Mr Behrens said he told Hamid 'Then we will have an employment problem. For us, it is necessary that you drive for longer than one hour.' Hamid said he would not do it anymore. He did not indicate this was temporary or that he was getting a medical certificate or he would be 'happy to help us out' with other work. Mr Behrens denied he was shouting. Rather Hamid became agitated and said 'No, no then that's it. I don't want to work for Winco, anymore, there is something wrong with the company anyway' and hung up. Mr Behrens denied making threats or referring to Hamid's nationality. David was not part of the conversation, as he only needed one person to go to Port Macquarie.

[66] Mr Behrens said that David then called him around 6pm and said words to the affect of 'What is going on here? I agree totally with Hamid. I don't want to work for Winco again.' Mr Behrens said he replied by saying he was tired of struggling with them to go to jobs outside Sydney. David responded 'I am tired too, to do any work for Winco again. Over.' He hung up. They did not discuss returning the van. Mr Behrens called back at 6:31pm and told David that he needed to pick up the van to carry out work in the following few days.

[67] Mr Behrens said that after this call, he phoned his wife and told her what had happened. She was surprised and couldn't believe it. She said that she would try to speak with them. Around 7pm his wife spoke to Hamid from the car and asked what was this awful story she had heard about he and David not wanting to work for them. He replied 'We don't want to work for Winco anymore. We don't do anything more for you. His wife said something like, 'Do we really finish like that. Is that all?' Hamid said he wanted a good reference and his wife agreed. Hamid repeated 'It is over, will not work for Winco anymore'. His wife asked about helping out with the jobs the next week, but he refused. She asked him to send an email confirming they had left their employment with Winco. Hamid refused. She said she would send something confirming what had happened.

[68] He and his wife arrived to pick up the van around 8:00pm. His wife did most of the speaking. She asked David why they didn't want to work for them anymore. David just replied 'It's over. We don't want to work for Winco.' His wife then offered him their work boots and protective clothing. David said they didn't want anything more to do with Winco. His wife said she was sorry that it had to end like this.

[69] Mr Behrens said his wife had not prepared a resignation letter or anything else for them to sign. She couldn't have because his earlier phone call was made from the car on their way home. Mr Behrens received an email from Hamid on 2 December 2011, indicating he would be coming into work on 6 December 2011 and enclosing a medical certificate for his back injury (Mr Behrens had been in Port Macquarie on 1 December). Mr Behrens thought it was nonsense that Hamid was proposing to come to work, when he refused to work and terminated his employment the day before.

[70] On 2 December 2012, his wife wrote letters to both applicants headed 'Immediate Employment Termination Notice'. Mr Behrens explained that, by using the words 'been placed on immediate termination', he did not mean Winco had dismissed them. They had refused to work and were 'placed' on termination on the basis of their unwillingness to work. He stressed that their contractual obligation had been broken. There then followed various emails earlier referred to (see para [14]). Mr Behrens said that over the next week he had encountered numerous work difficulties which he wanted to discuss with David. Despite trying to contact him on three occasions, David would not respond.

[71] Mr Behrens gave evidence of various discrepancies in the time sheets of the applicants. He had been alerted to a need to check these timesheets after visiting the University of NSW site on 27 October 2011 and only finding David on site. David said his brother had left the site to take his wife to the Doctor, but the van was onsite at the time. Their timesheets indicated they had both worked from 7am to 4:50pm that day, including paid overtime. He asked his wife to make further inquiries. He said that the applicants were paid in good faith based on the timesheets submitted, including overtime. However, comparing these records, with other information, disclosed many discrepancies. For example, RTA Toll records show journeys via the Sydney Harbour Bridge and Lane Cove Tunnel using the company van, not reconciling with the times recorded on the timesheets. Further, parking records regularly submitted for reimbursement, show entry and exiting parking stations at very different times to the times recorded on the timesheets.

[72] In addition, site attendance records for Multiplex at the University of NSW site, required for OH & S purposes, show that David had attended the site on only 13 of the 33 days recorded on his timesheets and that Hamid had attended the site on only 6 of the 33 days on the timesheet.Mr Behrens said that his wife had calculated overpayments based on discrepancies for the period from 1 Sept 2010 - 31 October 2011 of $17,718.75 for David and $16,109.92 for Hamid. These concerns and overpayment claims had been forwarded by his solicitors to the applicants, on several occasions, without any response from them. Mr Behrens said that, had he been aware of the nature and scale of the applicants' misrepresented timesheets without plausible explanations, the applicants would been summarily dismissed much earlier than 30 November 2011.

[73] In cross-examination, Mr Behrens described the history of his company and his role and duties as the Managing Director. He said that many of the parts and products used by his Company are imported from Germany.

[74] Mr Behrens said that despite having control over the applicants, they were often quite hesitant to say where they were. When he asked they would say 'why do you need to know that'. Mr Behrens described how he would communicate the company's requirements to the applicants. This was done 3-4 days in advance for small jobs and sometimes many weeks in advance for large jobs. Mr Behrens described the terms of the applicants' employment and how they first came to be employed by him. They were provided with letters of appointment at the time. Mr Behrens said that the Company had sent David to Germany to learn more about the products and these costs were all met by the Company.

[75] Mr Behrens detailed the applicant's work on the Bligh Street job which lasted 6-8 months. However, the applicants did not work exclusively on that job during that time. This was the nature of subcontracting in the building industry. Mr Behrens said that a company vehicle was provided to the applicants' and it could be garaged at their home. However, he made it clear that driving time was not work time. The arrangement was that the first hour to the job was not working time.

[76] Mr Behrens explained that he had not expected either of the applicants to do any work at Port Macquarie. The work involved reprogramming a computer and although he knew how to do it and the instructions were all in German, he required an inducted person to accompany him on the commercial site. This was an unusual situation. Both applicants had been inducted on the site and no one else had. The job was urgent because it was the peak Christmas period in Port Macquarie's biggest shopping centre. In the result, he was 'fined' $5000 for not carrying out the work.

[77] It was Mr Behrens' evidence that he first learnt of the urgency of the job that day (30 November). He had never asked the applicants to come back to the office after driving from Canberra. Mr Behrens said Hamid may have mentioned his back problem to him once previously, perhaps in 2011 but he did not know how the injury had occurred. Hamid had never told him about it. Mr Behrens recalled an earlier occasion when a large hatch, possibly weighing 150kg had been delivered to the office and carried up the stairs by 4 men, including Hamid.

[78] Mr Behrens recalled another injury Hamid told him about when he broke his toe playing soccer barefoot. He was off work for 8-10 weeks and although he was only obliged to pay him 10 days sick leave, he continued to pay him for the whole period.

[79] Mr Behrens said that in the previous 12 months of the applicants' employment 90-95% of their work was around Sydney. In the past they had performed work on some big contracts, including one in Adelaide in which the Company paid for David's wife to accompany him while he did the job.

[80] Mr Behrens agreed that in the first phone conversation on 30 November 2011, after asking Hamid to go to Port Macquarie, Hamid also said his brother had fallen off a ladder and would be seeking a medical certificate so he couldn't go either. Mr Behrens said he was aware of his obligations as an employer in respect to an employee's injury. However, if it was severe, the employee should seek immediate medical help and Workcover should be notified. Mr Behrens conceded that he did not conduct tool box meetings as he believed they were relevant only to big companies. Nevertheless, the company had an OH&S policy, requiring risk assessments to be conducted on every job.

[81] It was Mr Behrens' evidence that he had accepted the applicants' resignations on the day they were offered and that he did not seek to have them change their minds, despite having plenty of work for them to do.

[82] Mr Behrens believed the applicants had received scissor lift training. Mr Behrens said he did not refuse to hire a scissor lift for the Bligh Street job, because it was not in the contract. He added that car parking for the applicants on that job amounted to $3500.

[83] Mr Behrens' evidence was that he had spoken to the applicants on several occasions about the amount of overtime they had been claiming. He agreed that all of their time sheets were checked and invariably the applicants would complain about underpayments which were later found to be unjustified.

[84] Mr Behrens denied he was angry in any of the phone conversations he had with the applicants on 30 November 2011. He had never said anything about them not being useful to him anymore. Hamid had said that he would not work for Winco anymore and didn't mention getting a medical certificate. Mr Behrens could not recall if he had queried why Hamid could travel to Iran with his back injury. However, he had not made fun of him about it. Mr Behrens said he had tried to contact the applicants after 30 November, but they wouldn't answer his emails or phone calls. The Company had many jobs to do at the time and needed help.

[85] Mr Behrens said it was nonsense that Mrs Behrens had prepared a resignation letter for the applicants to sign. When Mr Behrens was shown his wife's email of 12 Feb 2012 (calling the applicants liars and criminals) he said he had not previously seen it. His evidence was that he did not share his wife's views as contained in the email.

[86] Mr Behrens reaffirmed that the time sheet for the Canberra job did not reflect the toll record reports. Mr Behrens was asked about other jobs and whether the preparation work was done on site, or off site, or if the jobs required them to purchase materials or to train on equipment. He said that none of the applicants' timesheets reflected what they now said were their explanations for the discrepancies in the timesheets. Mr Behrens denied knowing where the applicants were on any given day and time. He said there were 'big holes' in the timesheets records compared to other independent records, amounting to a difference of up to $100,000. It was Mr Behrens' evidence that he had trusted the applicants because David had insisted that if they didn't trust him he wouldn't work for them anymore. If there were arguments over discrepancies he told his wife to pay them to avoid further conflict.

[87] In relation to the Port Macquarie job, Mr Behrens said again that the client needed the job done urgently. Before he had time to discuss the matter, Hamid had said they didn't want to work for Winco again. Mr Behrens accepted David had been injured and told him to go to the doctor. He denied raising his voice. On the contrary, it was Hamid who was shouting. Mr Behrens referred to three other occasions where he had had to intervene on a building site because Hamid wanted to fight somebody. He was the hot tempered one.

[88] In re-examination, Mr Behrens said that if the applicants ever had to leave one site to go to another (which was the exception rather than the norm), he expected this to be recorded on the timesheets. It never was.

[89] Mr Behrens outlined his expectation of what times should have been recorded for the Canberra job. If there was 10 hours of elapsed time, 2 hours would be taken off for travelling and there would be one and a half hours overtime. There was also requirement for a half hour break. Mr Behrens queried the applicants' claim that they worked through without a break because whenever he had visited sites they were on, they were always on smoke breaks as they were both heavy smokers.

[90] Mr Behrens said that, in respect to the University of NSW job, there would have been no requirement to purchase anything in November 2011. They had never submitted timesheets or expenses for November 2011. If their claims were valid, they would have been paid.

[91] Mrs Cordula Behrens said her husband had told her of the two phone conversations he had with the brothers on their way back from Canberra. She described the situation as 'unfortunate' because they had told him they did not want to work for Winco anymore. He had mentioned that Hamid had referred to his back injury. Both of them had said they did not want to work for Winco again. She told her husband that maybe they hadn't meant to resign and she would call them to see what the situation was.

[92] Mrs Behrens said she was astonished by their decision as the Company had tried to be fair to both of them, including giving them extra holidays over Christmas and allowing Hamid an extra month off a year to return home to Iran. While this was inconvenient, they were happy to do so.

[93] Mrs Behrens described her conversation with Hamid as they were driving from home to Hornsby. Hamid reiterated four times that they didn't want to work for them anymore and he asked for a reference. She queried their decision and asked them to help out the next week. However, he refused. She asked him to send an email confirming they had left employment. When Hamid said 'no', she told him she would send something to confirm what had happened. She then made arrangements to collect the van and tools. Mrs Behrens denied the applicants' evidence that they wanted to work and were happy to work, subject to limitations from their injuries. She insisted their responses were direct, and without explanation.

[94] Mrs Behrens said that when they arrived at David's apartment around 8pm, she phoned him and he came downstairs. She had previously been to David's apartment in 2009 (for his wedding) and believed it was on the 8th or 9th floor of the building (20 - 25 metres) and some 8-10 metres from the street. Mrs Behrens said she asked David again why he didn't want to work for them again and he simply replied that it was over, they didn't want to work for Winco and couldn't work with Peter (her husband). She offered to let them keep their boots and protective clothing, but David said 'No we don't want anything more to do with Winco'. Mrs Behrens denied having prepared a letter of resignation or anything for him to sign, as she still thought they might take back what they had said.

[95] Mrs Behrens referred to the exchanges of emails referred to earlier. She noted particularly the wording of the letter dated 30 November 2011 headed 'Immediate Employment Termination Notice'. She believed that as the applicants had refused to work for Winco again, they had ended their employment and broke their contractual obligations.

[96] Mrs Behrens deposed that her husband had asked her to check the applicants' timesheets against other Company records. When she did so, she became concerned that they had claimed to be at work when the records showed they were not, or they were travelling to or away from a site. She reaffirmed her husband's evidence as to the examples she had investigated and said that the records suggest a significant number of hours when they were not at work, despite claiming on their timesheets that they had been. She also referred to their solicitors' subsequent letters to the applicants regarding these overpayments.

[97] While Mrs Behrens did not believe her email of 12 February 2012 was relevant to these proceedings, she conceded that she should not have written this email. However, she had not threatened them with assault and certainly had not intended to interfere with the conduct of these proceedings. She had unconditionally withdrawn the email in a letter from her solicitors. Her solicitors subsequently provided the applicants' solicitor with details of the documents on which the overpayment claims were based ($17,718.75 for David and $16,109.92 for Hamid). No reply had been received. She agreed with her husband that, had they been aware of the applicants' misinterpretation of their timesheets, the applicants would have likely been dismissed. Mrs Behrens attached various records of timesheets and RTA Toll records to her statement.

[98] Mrs Behrens provided a supplementary statement which detailed her accessing of further records of the Company, being Toll records of the work van and mobile phone records of phones paid by the Company, including her own and her husbands'.

[99] In cross-examination, Mrs Behrens described her role and duties for the Company as its Financial Controller. She is a medical doctor, but when the Company began to expand in 2009, her husband asked her to work full time looking after the finances. She did not regard herself as an expert in human resources. Mrs Behrens said the Company now has only 10 employees, including an electrician in Sydney who was engaged after the applicants left. The position was advertised in January 2012.

[100] After being shown some of the applicants' payslips, Mrs Behrens agreed that David had a significant amount of accrued sick leave. However, he did not bring in doctor's certificates when he was sick.

[101] Mrs Behrens agreed that part of her job was to pay expenses and reimburse the applicants for any Company expenses which they incurred. She said the applicants used their own credit card and provided receipts. If there were tolls or petrol on weekends or while they were on leave, these were deducted. However, she believed it was very much a matter of mutual trust and she trusted the applicants to provide the correct claims. She referred to a dispute over mobile phone usage in 2010 in which monthly work related calls were averaging around $130 and then jumped to nearly $400 a month. There was another occasion when the cost of city parking was around $75 a day. The Company had wanted them to catch a train, but they never did.

[102] Mrs Behrens deposed that when she spoke to her husband on 30 November 2011, he told her that the applicants didn't want to work for Winco anymore and that Hamid could not travel to Port Macquarie the next day because of his back. Mrs Behrens said she had no knowledge of Hamid's back injury or how it was caused. As far as she knew the Company had not recorded any injuries before. The Company had a safety booklet and any injury had to be formally reported to her through an incident report. None were ever provided by either applicant.

[103] Mrs Behrens confirmed her version of the conversation with Hamid around 7:30pm on 30 November 2011. She was very upset and queried why they did not want to work for Winco anymore. She agreed that they didn't have a chat about the situation after everyone had calmed down. This was because the applicants were determined. However, she still had hoped the applicants would call her back.

[104] As to picking up the van, Mrs Behrens said that at no time did she see Hamid at David's apartment. The van was usually garaged under the building but that night it was parked on the street. Mrs Behrens agreed that David was limping that night when she saw him. She accepted that they both subsequently provided her with medical certificates. Despite this, she had asked if they could work for the Company the next week and they refused.

[105] Mrs Behrens strongly denied having any piece of paper with her which was intended to secure the applicants' resignations. She denied sacking the applicants and said her letter titled 'Immediate Employment Termination Notice' reflected the fact they no longer worked for Winco. She pointed out that she waited all day and the next day (1 December 2011) for the applicants to call her back, but they didn't.

[106] Mrs Behrens agreed that while she had trusted the applicants, she had still checked their timesheets with their expense claims and tolls reports, but not as thoroughly as she had after they had lodged their unfair dismissal applications.

[107] Mrs Behrens said that the Company had been very busy this year. She said that while she was aware of the Small Business Fair Dismissal Code, the applicants had not been dismissed. She insisted that she had not sought a resignation letter from the applicants and had not discussed it with them.

[108] Mrs Behrens agreed that the Company had offered the applicants' contracts about a month before they left. She said it was unfortunate that these contracts had not been signed earlier, although the applicants did have letters of offer.

[109] Mrs Behrens acknowledged that the email of 12 February (calling them 'liars' and 'criminals') was sent to the applicants because she was so upset that the applicants 'had played with my trust for years'. She accepted that, four days earlier, she had sent a conciliatory email wishing them the best for the future. Mrs Behrens said that neither her husband or their lawyer knew of the email she had sent on 12 February and she was very sorry to have sent it. It was just because she was so upset. She insisted that the Company was so busy just before Christmas that they never would have dismissed the applicants in that situation.

[110] In re-examination, Mrs Behrens explained that another employee, a sales person in Melbourne, had been made redundant and his unfair dismissal case had been settled.

[111] Mrs Behrens said that the only injury she could recall to either of the applicants before 30 November 2011 was Hamid breaking his toe during a soccer game, for which he was paid 6 or 7 weeks while he was off work.

[112] It was Mrs Behrens' evidence that, had the extent of the discrepancies been known while the applicants were still employed, she would have been raised the matter with them. The fact was she had trusted them, despite some concerns about claims of starting early when they were not on site. She had been extremely upset and felt she had been played with for many years.

[113] Mr Warren outlined the events of 30 November 2011 and submitted that both the applicants had legitimate and reasonable excuses preventing them from working in Port Macquarie the next day. Hamid was even prepared to work in Sydney. Without any attempt to calm the situation or discuss the matter, the applicants were both unfairly dismissed. Mr Warren cited the words alleged by Mr Behrens 'that he could not keep them employed anymore'. Mrs Behrens had later told Hamid they were both 'finished' as of that date. Without any attempt to resolve the situation, the Behrens hastily arranged to collect the Company's van and tools. There were also attempts by Mrs Behrens to force the applicants to sign resignation letters. The applicants' evidence was that, at no time, did they resign from their employment. They had also provided medical certificates concerning their injuries. Mr Warren submitted that the applicants were dismissed at the initiative of the employer and that their dismissals were 'harsh, unjust and unreasonable'.

[114] The applicants sought orders for compensation reflecting the equivalent to the amount of remuneration they both would have received, had they not been dismissed. They had been out of work since 30 November 2011 and had also not been paid their statutory entitlements. Mr Warren sought interest on the outstanding entitlements and costs.

[115] In oral submissions, Mr Warren agreed that this matter 'turned on the credit of witnesses'. He queried why, if the applicants' had resigned, they were sent an 'immediate termination notice' and, if the Company had ongoing work, why didn't the Behrens try to resolve the situation?

From the applicant's perspective, Mr Warren questioned why they would go to the trouble of obtaining medical certificates. He also queried why the applicants would challenge the assertion that they had resigned. He noted they were doing a good job and enjoyed their work. It made no sense for them to resign a few weeks before Christmas when they may have received a $1000 bonus. Mr Warren said that the work the applicants performed for the Company was multilayered. It wasn't merely turning up at the site at 7am and finishing at 3pm. There was travel time, preparation and maintenance time.

[116] In relation to the timesheet discrepancies, Mr Warren raised questions as to how the work got done if the applicants were not where they said they were. The respondent had conceded that there were no issues of the quality of the applicants' work. In respect to their own Company, Mr Warren submitted that they had only ever performed small handyman jobs in David's apartment block and in their own time on weekends. There was no mention of Winco on the company's website. The Company had only made about $21,000 from January to July this year. Mr Warren relied on the evidence that the applicants were always under the control and supervision of Mr Behrens. He knew where they were at all times and directed them as to what jobs were to be performed and when.

[117] Mr Warren noted that the applicants had still not been paid for expenses incurred in November 2011 or for outstanding entitlements. Mr Moore replied that the respondent was still assessing the documentation recently provided by the applicants and was arranging for payment to be made in a day or two.

[118] Mr Warren said that Hamid's injury had resulted in a recent hospital admission. He had not sought to make a workers' compensation claim because of fear of any repercussions. He just wanted to continue to work and provide for his new family. As to David's circumstances, Mr Warren said he was a hard working and loyal employee. He had suffered financially and psychologically from his dismissal and his own business had faltered. Work in the construction industry was slow and competition very tough.

[119] Mr Moore said the jurisdictional issue in this case was clear. It was not a case of forced resignation, but a straightforward 'word on word' case as to whether the applicants had resigned or were terminated at the employer's initiative. This legal question can be determined by findings of fact as to the conversations on 30 November 2011 between 4:34pm and 8pm. This was the date both parties accept as the termination date.

[120] Mr Moore said that despite the applicants' use of the plural 'we' as to being asked to go to Port Macquarie, there was never a need for both of them to do so. Mr Behrens just needed one of them to accompany him so as to gain access to the site as both has been inducted. The objective evidence disclosed that the first phone call was for 8 minutes and it must have been a wide ranging conversation. If Mr Behrens is to be believed and Hamid had said for the first time that he could not sit in a car for longer than one hour, then it was perfectly reasonable for Mr Behrens to state that there may be a problem as to his future employment, as Winco required such travel regularly, including in and around Sydney.

[121] Mr Moore traced the history of the phone calls as disclosed by the phone records. Despite the applicants' claim of a call to David at 6pm in which comments about the applicants' nationality were alleged to have been made, no such call was made. A phone call was made at 6:31 to inform David that Mr Behrens and his wife were coming to pick up the van.

[122] It was agreed that none of the words used in the first conversation at around 4:30pm were words of termination. Hamid said he was dismissed in the second conversation but no such conversation was directed to his brother. So even on the applicants' evidence they could not have been sacked in the same conversation.

[123] David said he was sacked in a third conversation initiated by him at 6:30pm, when Mr Behrens said he was coming to pick up the van. Mr Moore said what is more likely is that in the first conversation Hamid indicated he would not work for Winco anymore. There was no second conversation, because Mr Behrens knew that neither of them were going to accompany him to Port Macquarie.

[124] Mr Moore said that Mrs Behrens learnt of the events after 6:31pm in the car travelling up to Hornsby and was why she initiated a call to Hamid around 7:30pm. It was obviously to see if the situation could be resolved. Otherwise, there would have been no need for her to call. Mr Moore said it was interesting that immediately after this call of 8 minutes another call was put through to David supporting the view that the Behrens believed the brothers were not together in the apartment. Mr Moore noted that neither of the applicants had mentioned in their statements that in course of the the conversation at the van, Mrs Behrens had offered them their boots and protective clothing. David was adamant that he didn't want anything to do with Winco. This demonstrates the finality of their position and the respondent could not force them to resume work, even though their work was needed.

[125] Mr Moore said the applicants then did nothing until sending their medical certificates later on 1 December 2011. Mr Behrens had only ever expressed that a problem might exist if Hamid couldn't sit in a car for over an hour. He did not dismiss him and both of their refusals to work for Winco were stated again 3 hours later.

[126] Mr Moore said in summary that the evidence of the Behrens should be preferred and that was the end of the matter - FWA had no jurisdiction to deal with the applicants' claims of unfair dismissal.

[127] Mr Moore noted that the efforts by Mrs Behrens to seek to resolve the situation were consistent with the Company having ongoing work for the applicants. Also of concern was the fact that the versions of the conversations recorded in the applicants' statements were identical. However, the most incredible evidence arose from the 100% corroboration of what was said outside the apartment when Hamid said he travelled down two floors, unseen by anyone and crouched behind the balcony with a bad back. Mr Moore said that the applicants' credit must surely be in question.

[128] Mr Moore referred to other issues in the case, notably questions as to why the applicants hadn't sought to adduce evidence in the form of invoices or bank statements showing that the work performed for their own Company was minimal. He noted the evidence concerning the expense claims and the timesheets and the admission that the applicants had not scanned into the University of NSW job site.

[129] Mr Moore emphasised the respondent's case was not based on allegations of fraud or other acquired knowledge; See: Lane v Arrowcrest Pty Ltd [1991] AILR 39. No submissions were obviously put about the Small Business Fair Dismissal Code because the respondent's case was that the applicants had not been dismissed, rather they had resigned.

[130] Mr Moore put submissions in respect to the fairness of the situation and the lack of evidence as to any post termination of employment or income.

[131] Mr Moore tendered a bundle of authorities in respect to:

[132] In reply, Mr Warren said that the applicants seek $10,000 each in compensation based on their years of service. Mr Moore intervened and submitted that the positions of the applicants are different and this would warrant a different and separate consideration of the tests for compensation under s 392 of the Act. Mr Moore also foreshadowed a costs application.

[133] The applicants maintained that they were 'terminated on the employer's initiative' while the respondent argued that the applicants had resigned their employment. There was no suggestion that the applicants were forced to resign. Indeed, their evidence was that at no time had they done so. This being so means that this case does not involve considerations of constructive dismissal.

[134] Resolving the parties' opposing evidentiary positions was not assisted by direct language or any documentary corroboration of either party's position. Ultimately, it might be observed that the evidentiary foundation of this case was hopelessly conflicted. It rests entirely on whose version of the conversations of 30 November 2011 is to believed. This has been a task not without some difficulty, although my conclusions in this respect are fortified by some of the other surrounding evidence.

[135] That said, much reliance was placed on the email headed 'Immediate Employment Termination Notice' as a dismissal initiated by Winco. While this heading is an unfortunate characterisation of what had occurred, it must be read in the context of what is said in the letter itself. There is no doubt that the subsequent wording reflects what Mrs Behrens believed had occurred. The heading of the letter reflects Mrs Behrens' lack of human resources expertise, rather than a direction that the applicants had been or were dismissed at the employer's initiative.

[136] As I just mentioned, direct and unequivocal language such as 'I resign' or conversely 'you are dismissed' was not used by either party. Simply put, the applicants' claim Mr Behrens had said:

'You are not useful to me anymore. I can't keep you employed anymore.'

On the other hand, both Mr and Mrs Behrens said that both applicants had said more than once:

[137] I accept that the language said to have been used by both parties supports the propositions which they respectively advance; that is, the words alleged to have be used by Mr Behrens would constitute a dismissal at the initiative of the employer and alternatively, the words alleged to have been used by Hamid, and allegedly confirmed by David, would constitute a freely given resignation.

[138] Before resolving the evidentiary conflict, I refer to the decision in Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 where the Full Bench said:

'It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer's actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.'

[139] Two earlier decisions of the Australian Industrial Relations Commission ('AIRC') are also worthy of mention in the present context: In Stubbs v Austar Entertainment Pty Ltd [Print Q0008, 9 April 1998] the Full Bench said:

'We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect . . .'[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].'

[140] A Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit [Print N6999, 9 April 1996] said:

'Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.'

[141] After carefully assessing all of the surrounding circumstances and drawing conclusions on the balance of probabilities, I am satisfied that the truth of the matter lies with Mr and Mrs Behrens versions of the conversations on 30 November 2011.

[142] It follows that I conclude that Hamid had told Mr Behrens that he would not work for Winco anymore and David later told Mr and Mrs Behrens that he agreed with his brother and would likewise not work for Winco anymore. These words were not uttered in the heat of the moment, indeed they were repeated several times. The resignations were not sought to be withdrawn subsequently, despite attempts by Mr Behrens to have the applicants respond to emails and phone messages.

[143] I am fortified to the above findings by the following observations and conclusions:

a) Given the busy time of year and the Company's full forward schedule, it made absolutely no sense why the respondent would dismiss the applicants knowing they had no one else in NSW to do the work. It just doesn't make any logical sense.

b) The evidence of the two applicants as to what was said in the various conversations was not just corroborative, but exactly 'word for word' as to what was said. Corroboration is one thing, but to have numerous detailed conversations recalled exactly 'word for word' by two persons, raises concerns as to collaboration of the evidence. I consider it highly implausible that two persons could remember, let alone recall exactly the same words used in a number of conversations, including conversations of at least 8 minutes.

c) The undisputed phone records of the respondent record the first conversation as lasting for 8 minutes. On the applicants' version of events, the conversation lasted for a considerably shorter period of time. In my view, a conversation of 8 minutes would be explicable in the context of Mr Behrens inquiry of the applicants about the Canberra job, where they were, how David had injured himself, Mr Behrens explaining the requirement for one of them to accompany him to Port Macquarie the next day, Hamid arguing as to why he couldn't drive for longer than 1 hour, Mr Behrens saying then they had a problem and Hamid indicating he would not work for Winco any more.

d) It seems strangely co-incidental that both applicants complained of workplace injuries as the reasons why neither of them could go to Port Macquarie the next day when, over the past 5 years, there had been no issue with Hamid driving for longer than one hour, particularly when he was required to do so on a regular, if not daily, basis.

e) If Hamid believed he had been dismissed on 30 November 2011, it makes no sense for him to have told Mr Behrens on 2 December 2011 that he would be in for work on 5 December 2011. This is even more curious, given the unanswered emails and messages Mr Behrens made to the applicants, inquiring as to the situation in the few days after 30 November 2011.

f) There had been a long history of trust in the applicants, and a friendship between them and the Behrens. There had been a willingness to accommodate their specific circumstances and issues: For example:

1. David was sent to Germany to be trained at the Company's expense.

2. David's wife accompanied him, over a lengthy period and at the Company's expense, to Adelaide for a job.

3. Hamid continued to receive full pay after a non work related injury.

4. Hamid was given extended leave to deal with personal issues in Iran.

5. Mr and Mrs Behrens had attended the weddings of both applicants.

g) Given what I have just referred to, it seems entirely understandable that in Mrs Behrens call to Hamid at around 7:30pm, she would have expressed surprise at what her husband had told her and sought to resolve the matter by asking them to reconsider their decision not to work for Winco any longer.

h) If it was truly the intention of the respondent to dismiss the applicants on 30 November 2011, it would seem to be a very awkward and problematic construction of events to secure that outcome. It would assume that the Port Macquarie travel was part of a preconceived pretext to dismiss them. This does not sit comfortably with the facts that, firstly, the Port Macquarie job was only known of the day before, secondly, Mr Behrens only required one, and not both, of the brothers to attend Port Macquarie with him, and thirdly Mrs Behrens was in on the ploy, but still tried to salvage the situation and then, on the applicants' case, tried to force the applicants to sign resignation letters. This set of circumstances has a sense of unreality and implausibility about it.

i) There was no explanation given or retraction from the applicants in light of the objective evidence that showed that Mr Behrens could not have made a phone call to David's phone at 6pm in which it was alleged comments were made about his nationality. I do not believe that this call as alleged by the applicants was ever made. The independent evidence (the phone records) discloses only two calls to David's phone at 5:09pm and 6:31pm. In the latter call, Mr Behrens indicated that he and his wife would be coming to pick up the van.

[144] I make two other specific findings. Firstly, I do not accept the evidence of the applicants that Mrs Behrens had sought to force the applicants' resignations. I found Mrs Behrens to be a witness of credit, particularly given her regret and apology for her unfortunate outburst in the 12 February email. I accept her evidence that she had not sought to force the applicants' resignations when she arrived to pick up the van and tools, or at any other time.

[145] Secondly, I have serious doubts that Hamid was even at his brother's apartment when the Behrens came for the van and tools. Was it necessary for him to corroborate what his brother said in another phone conversation in the apartment or what was said outside the apartment?

[146] It seems highly suspect that it wasn't until these proceedings that Hamid said he used a key to enter a friend's apartment on the third floor of the building and crouched down and heard and saw everything which was said. If true, this was an omission of some importance. Aside from the lateness of the introduction of this evidence, which on any view was significant, it seems extraordinary that:

a) Someone with serious back pain would have crouched down to hide behind the railing;

c) His brother does not record anything about this in his written statement and nor does he;

d) Hamid claims he overheard a third phone conversation between his brother and Mrs Behrens in his brother's apartment but, unlike all the other earlier calls, he didn't identify himself as being there; and

e) Hamid's friend lived below his brother and just happened to be away and had given Hamid his keys.

[147] Putting all the above matters aside, there is one issue which dominated these proceedings and it was one which I found particularly troubling. It may well account for the applicants' decision to cease working for the respondent.

[148] Despite the applicants' insistence of only performing minor handyman jobs at his apartment block outside of work time, which I found singularly unconvincing, there raises in my mind a distinct possibility that the discrepancies in their timesheets, when compared with other of the objective evidence, such as phone, site and toll records, may have been related to the establishment of, and ratcheting up of, their Company's activities. While I hasten to add, like Mr Moore, that I refrain from describing these discrepancies as 'fraudulent' or 'criminal', the evidence, to my mind, was most alarming and disconcerting.

a) The applicants had established a joint partnership Company prior to 30 November 2011 with its own ABN.

b) The applicants did not advise their employer of this Company's activities, let alone seek permission to operate their Company which, on any view, was in direct competition with Winco's business.

c) The Company had an elaborate and detailed website with an email address and phone contacts for the brothers and, cheekily, included photos of work performed on Winco's jobs.

d) As at 30 November 2011, the Company's account had an amount of $8031 in credit. The applicants produced no evidence of the income and expenditure from this account prior to 30 November 2011.

e) Curiously, despite David informing the Tribunal in June 2012 that he could produce a notebook from which he transferred their hours of work to their timesheets, he later explained that the notebook could not be found.

[150] What I found particularly disturbing was the applicant's explanation for the discrepancies in their timesheets compared to the Multiplex site access records. Of 33 days claimed for work on the Multiplex job, site access records reveal access by David of 12 days and by Hamid of 6 days. The main explanation offered was that they would often gain access by a backdoor which was not security coded.

[151] I find this explanation utterly unbelievable. It means that the very important and fundamental Occupational Health and Safety purpose of ensuring that all employees who access building sites can be accounted for in an emergency, would be effectively nullified and made completely worthless. If the applicants had gained such access, it would obviously mean that unauthorised access would be available to many other employees or contractors. For a major building contractor, such as Multiplex, to condone such a practice would be unconscionable and untenable, and I daresay for them, vigorously contested.

[152] In my opinion, the applicants' explanations are so implausible as to be ridiculous. It is not supported by a skerrick of corroborative evidence. It is more likely that Multiplex's records are a true reflection of when the applicants were on the site. That being so, is it any wonder that the respondent had serious reservations with the applicants' conduct in light of the revelations it discovered after their resignations?

[153] Mr Warren stressed that the respondent had adduced evidence that they constantly checked the applicants' timesheets and expenses. He queried that if the respondent so closely monitored the applicants' records, why did it take them till after 30 November 2011 to discover major discrepancies? This was nothing more than a 'red herring'. The issue was not that the respondent condoned such behaviour, but that the discrepancies were blatantly obvious and unexplainable.

[154] Moreover, it seems plain enough that the Behrens had a high degree of trust in the applicants. While they might have discovered the occasional petrol purchase or toll charge on the weekend, the extent of the discrepancies only became apparent by a closer examination of the correlation between their submitted timesheets with other of the objective evidence.

[155] Mr Warren made another obvious submission: if the applicants were not on site for such long periods, how did the work get done? This is a reasonable question to ask. However, I think it can be answered by understanding the nature of subcontracting in the building industry.

[156] I am certain the applicants had not expected the more intensive examination of the records which revealed the extent of the discrepancies. However, it is not possible, on the state of the evidence, to make findings linking the exposed discrepancies with the performance of work for their own Company. Nevertheless, huge gaps of non attendance at Winco jobs, must at least raise an inference that that is precisely what was happening.

[157] Against this background, even if I be wrong as to my conclusion that the applicants resigned and FWA has no jurisdiction to determine these applications, I think it highly unlikely, given the nature and scale of the incontrovertible evidence of the timesheet discrepancies, that their dismissals (if so found) would be found to be unfair by FWA. One might be able to give the benefit of the doubt if there were two of three discrepancies, with explicable explanation, but so many inconsistencies demonstrate a pattern of behaviour and conduct which would, in my opinion, constitute a valid reason for the applicants' dismissals. The applicants were in flagrant breach of their duty to ensure the trust and confidence of their employer.

[158] It was not expressly argued by Mr Moore (and it is unnecessary for FWA to make findings in this respect) that an employer is able to rely on conduct discovered post a termination of employment to justify a dismissal, so long as the facts of that conduct existed at the time of dismissal. However, this is a commonly accepted industrial principle. So much so is evident from the authorities of this Tribunal and other Courts.

[159] In a frequently quoted Federal Court judgment von Doussa J said in Lane v Arrowcrest Group (1990) 27 FCR 427 at page 456:

'In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had cause or contributed to the employer's state of ignorance.'

See also Metricon Homes Pty Ltd v S Bradley [2009] AIRCFB 374. The principle in Lane v Arrowcrest was adopted by the High Court in Byrne v Australian Airlines [1995] CLR 410 at p 468.

[160] I am satisfied that the applicants resigned their employment with Winco Systems on 30 November 2011. As there was no dismissal of the applicants for the purposes of s 385 of the Act, FWA has no jurisdiction to consider the merits of the applications for remedies from alleged unfair dismissal. Specifically, it is unnecessary for FWA to consider whether the applicants' terminations of employment were 'harsh, unreasonable or unjust'. The applications must be dismissed for want of jurisdiction. Orders to this effect will be published contemporaneously with this decision. Any application as to costs must be made in accordance with s 402 of the Act.

Printed by authority of the Commonwealth Government Printer