Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy -Jurisdictional objections - Application not filed out of time - Associated entities considered - Respondent is not a small business employer - Applicant a regular and systematic casual employee - Minimum employment period satisfied - Whether resignation a dismissal within the meaning of s.386(1)(b) - Respondents conduct not intended to bring the employment to an end - Evidence insufficient to be satisfied Applicant was forced to resign - No jurisdiction - Application dismissed.

[1] This decision concerns an application made by Mr Rohit Banda under s.394 of the Fair Work Act 2009 (the Act) for a remedy on the basis that he alleges that his dismissal from his employment with Mrs Australia Pty Ltd T/A 7-Eleven (the Respondent) is unfair. The Respondent is the holder of a 7-Eleven Franchise under a franchisor/franchisee agreement.[1]

[2] Mr Banda was engaged on 28 January 2016 on a casual basis by the Respondent at its Lytton Store, Murrarie and alleges that he was forced by the conduct of the Respondent to resign on 7 June 2017, amounting to a dismissal within the meaning of s.386(1)(b) of the Act.

[3] As agent for Mr Banda, Jacques Franken of Employee & Executive Protect (EEP) lodged an unfair dismissal application with the Fair Work Commission (FWC) on 14 June 2017 which included an extract from the letter of resignation tendered by Mr Banda. The extract states:

"You have left me no choice but to resign. I resign under protest and believe I have been coerced to do this in order to establish my true current employment situation and to allow me to exercise my rights."

[4] The application further elaborates that the Respondent's conduct towards Mr Banda had been unlawful and coercive, and as such, Mr Banda could not continue his employment.

[5] The application was objected to by the Respondent via its Employer Response form, lodged with the Commission on 4 July 2017. The Respondent states that Mr Banda was dismissed on 18 May 2017, via an email to 7-Eleven's head office; however, the Respondent states that the effective date of dismissal was 24 April 2017. The Response also cited several jurisdictional objections, including that the application was lodged out of time, and that the dismissal was consistent with the Small Business Fair Dismissal Code.

[6] For reasons that will become apparent below I have concluded the application was not filed out of time.

[7] Mr Raghavendar Reddy Mandadi, who represented the Respondent at the hearing before the FWC, did not contest that Mr Banda worked on a regular and systematic basis for the period of his employment. I am satisfied on the basis of the evidence[2] that Mr Banda meets the minimum employment period required to be entitled to bring an application.

[8] In accordance with my directions further submissions were filed going to the matter as to whether the Respondent was a small business employer. Submissions were filed for Mr Banda that another 7 Eleven Store operated by Balaji Australia Pty Ltd, was an associated entity of the Respondent. Mr Mandadi accepted that he was a director of Balaji, and did not contest the submission of Mr Banda that the businesses were associated entities. On the basis of the material before me I am satisfied that the Respondent and Balaji are associated entities and that the Respondent has more than 15 employees. On that basis the Respondent is not a small business employer within the meaning of the Act.

(1) [When a person has been dismissed] A person has been dismissed if:

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

(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.

[10] It was made clear for Mr Banda, and confirmed in closing submissions that he relies on s.386(1)(b) to establish that he was dismissed, and does not argue he was dismissed within the meaning of s.386(1)(a).

[11] Mr Banda is a foreign student doing a Master's degree in IT and is in Australia under a 573 visa. Mr Banda alleged that he had been paid at a flat rate of $20 an hour, and was denied penalty rates, allowances and meal breaks. He said it has only recently been brought to his attention that he was not being paid Sunday penalty rates.[3]

[12] Mr Banda also alleged that a 'cash-back' arrangement was in place, whereby Mr Banda would be paid weekly according to his logged hours at the rate of $20 per hour, but was required to pay back any amount in excess of approximately $400, by transferring the excess to his brother-in-law Mr Sharath Chandra Reddy who would in turn transfer the excess back to the Respondent.[4]

[13] Mr Banda provided copies of his bank statements as evidence that he transferred money to his brother-in-law, however did not provide direct evidence that the funds were then transferred to Mr Mandadi. Mr Mandadi put to Mr Banda that this was not proof that Mr Mandadi had received any money from Mr Banda's brother in law. Mr Banda accepted he could not give evidence about what arrangement Mr Mandadi had with his brother in law Mr Reddy. He claimed he had put money himself on occasion into the Respondents safe.

[14] Mr Banda claimed that when he complained to Mr Mandadi, he received a threatening message through a member of the extended family that the Department of Immigration would be informed if he disclosed the arrangements and that he would be deported back to India and prohibited from returning to Australia. He claimed he was also told that if he did not co-operate he would not be given shifts.[5]

[15] Mr Banda said that he was the sole employee at the site at night time and was never permitted to take a meal break. Mr Banda claimed that the Respondent would check every day the surveillance camera and criticise him if, according to the Respondent, he did the wrong thing on his previous shift.[6]

[16] It was said in the Respondent's Form F3 employer's response to the application that Mr Banda used to sleep during the night shifts and he was warned twice. It was further claimed he was caught stealing in the store and he was warned a third time. The Form F3 said Mr Banda was asked for an explanation (concerning the alleged theft) but he did not turn up for his shifts and never contacted the Respondent again. It was said Mr Banda was rostered to work the week of 24/4/17 to 30/4/17 however he did not turn up to work and there was no communication from him. It was said Mr Banda had access to the rosters of the store up until 18 May 2017 via an "app" on his phone.

[17] It was claimed by the Respondent many customers were unhappy with Mr Banda and complained about him. Mr Mandadi put to Mr Banda that he was warned about closing the doors to the shop and sleeping on his shift. Mr Banda accepted that he had been given warnings for this but denied he ever slept on a shift. Mr Banda explained that the shop had to be closed at 11pm to avoid robberies and when a customer came to the door it would make a beep sound and the door would be opened.

[18] Mr Abhishek Sanagala also gave evidence that Mr Banda was warned about sleeping at work and he had been given "many warnings" and customers complained that he was rude. Mr Reddy also gave evidence that customers complained about Mr Banda, and described Mr Banda as being "not up to the mark".

[19] Mr Mandadi was cross examined about his evidence concerning his claims that he warned Mr Banda. This evidence was generally unclear and tended to lack particularity but, for reasons set out below, it is unnecessary for me to reach conclusions on the disputed warnings referred to in the evidence of the Respondent's witnesses Mr Mandadi, Mr Sanagala and Mr Reddy, prior to a meeting at the home of Mr Banda.

[20] Mr Mandadi said in his evidence[7] that while conducting audit reports, shortages were found and the Respondent started checking shift reports of all staff and the store's CCTV footage. Mr Mandadi said that the Respondent verified two dates 7/4/17 and 8/4/17. Mr Mandadi claimed the Respondent started investigating and found Mr Banda was stealing money from the till.[8]

[21] Mr Mandadi maintained this could be verified by reference to CCTV footage and receipts. Mr Sanagala, the Store Manager, gave evidence that audit shortages had been occurring and an investigation including shift reports and viewing of CCTV footage of all employees was conducted. Mr Sanagala claimed the CCTV footage showed that Mr Banda was not scanning all items.[9] The suggestion was that if a customer purchased a number of items the customer would receive all of the items paid for, however Mr Banda would not scan all of the items, and Mr Banda would retain the part of the money paid pertaining to items not scanned. The allegation was denied.

[22] In the course of the hearing Mr Mandadi advised he had available with him at the hearing the CCTV footage which ran over several days and supported his allegations, when viewed with the receipts he had provided with his submissions. This CCTV footage was not filed prior to the hearing as required by the directions. After hearing from both parties on the matter it was concluded with the consent of both parties that the better course, in preference to adjournment of the matter was to allow Mr Banda and his representatives time to review the lengthy footage, and to proceed on the basis of the evidence filed. In the event that it was determined that it could be dealt with (including concerning the jurisdictional objections) without requiring further evidence, I would do so. Mr Mandadi accepted he never provided any CCTV footage to Mr Banda.

[23] Mr Banda said in his oral evidence that on the morning of 24 April 2017 Mr Mandadi spoke to him by phone and said words in a sarcastic manner to the effect of "there is a theft in the store". Mr Mandadi's evidence was unclear on this point, and he was unsure who he spoke to that morning by phone before visiting the home of Mr Banda.

[24] It is appropriate at this point to set out that this matter involves a number of family relationships. Mr Banda's sister is the wife of Mr Sharath Chandra Reddy, who worked at the same 7-Eleven store as Mr Banda for the Respondent, and also appeared as a witness for the Respondent. Mr Banda lived at the same house where his sister and brother-in-law resided as well as his parents at the time.

[25] Mr Banda said in his statement that on 24 April 2017 Mr Mandadi arrived at his home midmorning. Mr Banda said he had completed a night shift on the previous evening at 10pm. Mr Banda said in the presence of his parents, Mr Mandadi humiliated him by making accusations that he had been stealing from Mr Mandadi. Mr Banda said that he was shocked as it was untrue. Mr Banda claimed that Mr Mandadi kept saying to him "I know you did it" "How much did you do it" and "Why did you do it." Mr Banda claimed that when he asked for proof, Mr Mandadi responded with words to the effect of "If I have to prove it to you I will put litigation on you and you will go to jail."[10] Mr Mandadi denied that he said this.

[26] Mr Banda said as Mr Mandadi was screaming at him he backed off in fear. He said that in Indian culture people are extremely sensitive to public humiliation and in this case, he understood that Mr Mandadi took his uncle outside the family home and alleged that he had proof which he could supply. Mr Banda said no proof was ever provided and he did not accept that he had stolen. Mr Banda said that as he felt extremely intimidated and he decided to back-off for a while before returning to the workplace. Mr Banda said he felt that he had to maintain the family relationships and that creating space could resolve the conflict.[11]In his oral evidence Mr Banda described Mr Mandadi as "part of the family even now".

[27] Mr Mandadi said that he asked Mr Banda why he did this to him, and claimed in his oral evidence Mr Banda said he took money from his petty cash. Mr Mandadi claimed he asked Mr Banda what amount and Mr Banda would not give an explanation. Mr Mandadi claimed he asked Mr Banda to come back with an explanation and used to words to the effect that Mr Banda was in trouble. Mr Mandadi's evidence appeared to then be that Mr Banda confessed that he stole money to Mr Reddy and himself. The evidence over when this alleged confession occurred was unclear, appearing to indicate it was on the phone[12] and at other times indicating it was at the house. Mr Mandadi said he told Mr Banda he had evidence that Mr Banda had stolen from the store, and he asked Mr Banda why he did that, and after Mr Banda spoke with his brother-in-law Mr Banda accepted he had stolen, and the conversation turned to how much was stolen. Mr Mandadi's gave some oral evidence that Mr Banda's acceptance of the allegation was communicated to him after he had left the house.

[28] Mr Sharath Chandra Reddy said he was at the house when Mr Mandadi came to the house about the allegations of stealing. Mr Reddy gave evidence that Mr Mandadi said he was not happy about Mr Banda stealing money. Mr Reddy supported Mr Mandadi's evidence that Mr Mandadi asked Mr Banda if he was stealing money. Mr Reddy said that Mr Banda initially denied the allegation, but later agreed he had stolen money. Mr Reddy said Mr Banda made this admission in the 'car park' at the house.

[29] Mr Banda said that he was under the impression that as a casual employee he could choose when he wanted to work. He said this impression was also enhanced by the fact that he was not asked about his availability to work shifts by the Respondent.[13]

[30] During his oral evidence he claimed he said to his brother-in-law on that afternoon that he needed time to work out what was happening and he just needed a break. Mr Banda confirmed he was aware that he was rostered on for days later in that week. Mr Banda said he told Mr Reddy he would not work that week but he could work the following week. It was Mr Banda's evidence that he never indicated he would not return to work. I asked Mr Reddy to give evidence about how the exchange ended on that day. Mr Reddy's evidence was to the effect that Mr Mandadi left and there appeared to be no suggestion from his evidence that Mr Banda was no longer an ongoing employee of the Respondent.

[31] Mr Mandadi suggested in his oral evidence that had Mr Banda returned to work on a subsequent day he would not have wanted to employ him again because of what happened, however there is no evidence that this was suggested at the time. Mr Sanagala, the Manager of the Respondent's store, said that Mr Mandadi had never said to him that Mr Banda had been sacked. It seems likely that if Mr Mandadi had intended to bring the employment relation to an end he would have done so when, on his evidence, Mr Banda accepted he had taken money from petty cash. Mr Sanagala's oral evidence left the impression he expected Mr Banda to report for his next shifts but Mr Banda did not come to work as rostered.

[32] In the document filed by the Respondent 'Unfair Dismissal - Preparing for a Conference'[14] in answer to question 4a it said as follows; "Rohit caught stealing in the store and he was warned a third time. We asked for an explanation but he did not turn up for the shifts". This does not indicate that the Respondent believed that Mr Mandadi intended by his conduct at the house on 24 or 24 April to end the employment relationship that day.

[33] On 18 May 2017 the Respondent sent a document headed "Termination Form" to the 7-Eleven head office. Mr Mandadi said this was to terminate Mr Banda from Kronos. Mr Mandadi described Kronos as a biometric system that employees can access for rosters, apply for leave, give availability, check leave entitlements and sign in and sign out for shifts.[15] The form sent to 7-Eleven described the reason for termination as being "misconduct - theft". When Mr Mandadi was asked when he made the decision to terminate Mr Banda, he responded that it was when Mr Banda did not turn up to work or explain his absence or the misconduct, and that Mr Banda was a casual employee.

[34] When Mr Mandadi was asked why he sent the form to 7-Eleven his answer was to the effect that employees have to be taken off the Kronos system by 7-Eleven if they are no longer working. Mr Mandadi added that it was the same with his own wife, when she stopped working she had to be taken off the system. This evidence suggests that the reason for sending the termination to 7-Eleven was more to do with 7-Eleven's requirements to purge the system, rather than the Respondent's desire to communicate to Mr Banda that he had been terminated by the Respondent.

[35] Mr Banda gave evidence that he was never made aware or informed, either orally or in writing, that the Respondent had terminated his employment.[16] Mr Banda said the form the Respondent referred to could only have been sent to the 7-Eleven Franchisor who was not his employer. Mr Banda said Kronos was a payroll system of the 7-Eleven Franchisor. Mr Banda said that the Respondent had never communicated to him that it had or intended to terminate his employment.[17] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[18]

[36] Mr Banda gave oral evidence he only had access to Kronos when he was in the store itself. He said he logged in at work using a fingerprint scanner. He appeared to accept he did have an "app" on his phone that included other employees of the Respondent and it was used for sending text messages about work related matters.

Alleged message through Mr Banda's sister in early June

[37] Mr Banda said the first indirect contact he had with the Respondent was towards the end of the financial year when he received a message through his sister from Mr Mandadi that Mr Mandadi would claim Mr Banda's year end taxes and keep the money as compensation for his stealing. Mr Banda said he was concerned about this and said that he contacted the Australian Tax Office who informed him that Mr Mandadi would not be able to do so. Mr Banda said he never heard from the Respondent again.[19]

[38] In the course of his oral evidence I asked Mr Banda at what point he believed he had no other choice but to resign and his evidence was to the effect that it was as a result of the conversation with his sister concerning the matters set out in the paragraph above. Whilst Mr Banda could not give a precise date as to when this conversation was, he believed it was in the first few days of June 2017.

[39] Mr Banda said that as he was concerned and unhappy about his work conditions he shared his concerns with a friend who advised him to seek professional advice. Mr Banda said that as a result he instructed Employee & Executive Project (EEP) to act on his behalf. Mr Banda said that on 7 June 2017, acting on his instructions, EEP tendered his resignation on the basis that the actions of the Respondent had made it impossible for him to return to work. A copy of the resignation letter was attached to his statement.[20]

[40] Mr Banda said that later that day he was contacted by his sister who conveyed a message to him from Mr Mandadi that he was to either withdraw the letter immediately or Mr Mandadi will have him sent to jail and deported to India. Mr Banda said that unfortunately his sister was not prepared to provide a statement in this matter for fear of retribution.[21]

[41] Mr Banda said that on 15 June 2017 he filed an unfair dismissal application because he felt he had no option but to resign as a result of the unacceptable working conditions he was subjected to.[22]

[42] On 4 July 2017 the Respondent filed a Form F3 Response to the application in which it identified 18 May 2017 as the date it maintained that the Applicant was notified of his dismissal. The Form F3 states that a termination form was emailed to 7-Eleven head office to terminate Mr Banda from Kronos. The Form F3 identifies the date the dismissal took effect as 24 April 2017.

[43] The Explanatory Memorandum for the Fair Work Bill said as follows in regard to s.386(1)(b):

"1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

[44] There is no suggestion by either party, or evidence to the effect that the circumstances set out in the first dot point of the Explanatory Memorandum as set out above exist in this case. The matter then turns to whether the circumstances in the second dot point existed.

[45] In a recent FWC Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[23] the Full Bench considered at length a range of authorities that have addressed the meaning of "dismissal" and summarised the position under the FW Act concerning s.386(1) as follows:

"(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee was given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination at the intiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether the termination of the employment was probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

[46] Having considered the evidence carefully concerning the events that occurred at Mr Banda's house on either 24 or 25 April 2017, I have reached the conclusion that Mr Mandadi's conduct that day did not give rise to circumstances that amounted to a dismissal within the meaning of s.386(1)(b) that day.

[47] There was a significant disagreement about exactly what Mr Banda did or did not say in front of members of Mr Banda's own family, and there is conflicting evidence as to whether Mr Banda maintained a denial of the allegation made by Mr Mandadi that Mr Banda had stolen from the store, or alternatively as put by the Respondent, that he initially denied the allegation but subsequently accepted he had stolen as is claimed in the evidence of Mr Mandadi and Mr Sharath Chandra Reddy who were both at the house.[24] I have concluded it is unnecessary for me to determine whether Mr Banda did or did not make the concession alleged.

[48] That is because none of the three witnesses who gave direct evidence about the exchange claimed Mr Mandadi threatened Mr Banda with termination if he did not resign or made a threat that could amount to negating any choice for Mr Banda concerning his ongoing employment. All of the evidence pointed to the discussion being focussed exclusively on the subject of whether Mr Banda did, or did not, steal. It is true that on Mr Banda's evidence Mr Mandadi pressed Mr Banda to admit he had stolen and that if Mr Mandadi had to litigate the claim Mr Banda would go to jail, however this strikes me as hyperbole in the course of a heated exchange over the allegations themselves.

[49] The evidence of all of the witnesses appears to be that the discussion did not move beyond the allegation itself, and the evidence was focussed on whether Mr Banda maintained his denial at the time or not. The evidence indicates there was simply no discussion about Mr Banda's ongoing employment. Mr Banda's own evidence was to the effect that after the exchange that day he made the decision himself to back off for a while before returning to the workplace, and that he believed creating space could resolve the conflict. This is not the evidence of a person who at that time felt he had no choice but to resign. I am not satisfied on the evidence Mr Mandadi's conduct during the exchanges at the house was intended to bring the employment to an or that the termination of Mr Banda's employment was the probable result of Mr Mandadi's conduct such that Mr Banda had no effective or real choice but to resign because of the allegations made that day. The evidence of the three relevant witnesses does not rise that level on either count.

[50] From that point the evidence was Mr Banda said he did not go to work because he was under the impression as a casual he could choose when he wanted to work and he had no other contact with the Respondent before he had a conversation with his sister in early June 2017, during which he said he understood his sister was passing a message through to him from Mr Mandadi. According to his oral evidence it was from this conversation that Mr Banda claimed he formed the view he had no alternative but to resign.

[51] Prior to the conversation between Mr Banda and his sister, the Respondent had sent a termination document to 7 -Eleven which had the effect of removing Mr Banda from Kronos. It was correctly submitted for Mr Banda that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[25]

[52] Despite the claim from the Respondent that Mr Banda would have been aware he no longer had access to the "app" on his phone at some point after 18 May 2017, this is not evidence that the Respondent had communicated to him that he was terminated. I am satisfied on the evidence that the Respondent did not communicate to Mr Banda at any point prior to Mr Banda's decision to tender a resignation on 7 June 2017 that he had been terminated. On that basis it appears from the evidence Mr Banda was not terminated before he submitted his resignation.

[53] That then requires consideration of whether the resignation tendered on 7 June 2017 amounted to a dismissal within the meaning of s.386(1)(b). Mr Banda's representative put in closing submissions that it was an accumulation of matters that reached a point where the practices of the Respondent made it unacceptable for Mr Banda to continue in employment, and having consulted EEP, he decided to resign. This accumulation of issues included his pay and conditions, the alleged payback scheme and alleged threats that he would be deported.

[54] It was made clear in the course of the hearing by Mr Banda's representatives and not disputed by the Respondent that the Fair Work Ombudsman (FWO) was conducting an investigation into the allegations made by Mr Banda concerning underpayment and also the alleged 'cash back' system. Mr Banda's representative said more evidence had been provided to the FWO. Mr Mandadi denied the allegations and his submissions were to the effect that he was cooperating with the FWO.

[55] The evidence concerning the alleged underpayments and the alleged 'cash back' system was contested. In closing submissions Mr Mandadi continued to maintain his denial of the alleged practice given in evidence. In the end there was insufficient evidence for me to form a view that it was more likely than not the allegations were true.

[56] Mr Banda accepted that whatever the practices might have been concerning alleged underpayment and 'cash-back' practices, the arrangements had been the same throughout all of his employment from the beginning of 2016. That raises a question as to whether the alleged matters, if true, forced him to resign as at 7 June 2017. Could Mr Banda have complained to the FWO and have the allegations investigated (which he ultimately did) without resigning. In any event, as already stated I cannot be satisfied on the evidence as it stands that the allegations are substantiated, and therefore cannot be satisfied that Mr Banda had no choice but to resign because of the alleged conduct.

[57] According to his oral evidence it was in fact from the conversation that Mr Banda had with his sister in early June that he claimed he formed the view he had no alternative but to resign. Mr Banda's sister did not give evidence. Mr Banda's evidence concerning his conversation with his sister is not direct evidence of any conduct on the part of Mr Mandadi. Mr Banda did not seek to directly approach Mr Mandadi about whether what he claimed he had been told by his sister was true. Mr Mandadi was not cross examined on this issue. I cannot be satisfied on this evidence that the allegation is made out and therefore cannot find that it gave Mr Banda no effective or real choice but to resign.

[58] My conclusion is the same in regard to Mr Banda's allegation that after he had complained about his conditions he received a message through a member of the extended family that the Department of Immigration would be informed and that he would be deported back to India. Mr Banda did not identify who the alleged threatening message was received through, and there was no other witness evidence to support the allegations denied by Mr Mandadi.

[59] On 25 October, two days after the close of the hearing, an email was received from Mr Banda's representative advising it had been provided with information from the Fair Work Ombudsman that it submitted corroborated Mr Banda's evidence that he felt he had no option but to resign, and confirmed an unacceptable practice within the a company associated with the respondent. Correspondence was sent from my chambers to the Mr Banda's representative and copied to the respondent seeking confirmation as to whether the applicant was making an application to reopen the matter. Mr Banda's represented responded in email correspondence advising it did apply for the matter to be re-opened.

[60] The matter was listed for directions on re-opening two days later on Friday 27 October 2017 by telephone. The applicants representative advised that the applicant did not seek to bring fresh evidence and only sought to put before the FWC information from the Fair Work Ombudsman website. The information was provided by email to the FWC and to the respondent prior to the directions hearing, and was in the form of an article on the FWO website dated 18 October. The article in brief sets out that Balaji Australia Pty Ltd and a current director and shareholder Mr Ponnada were facing allegations of false and misleading record keeping during employment of two employees, and termination of an employee who refused to repay money in a 'cash back' arrangement.

[61] Whilst Balaji is a related entity of the respondent in this matter, the allegations described in the article are not directed at Mr Mandadi. I have had regard to the article however it is not direct evidence of conduct of the respondent in this matter. It does not alter my earlier stated conclusion that there is insufficient evidence before me in this matter to be satisfied about the substance of the allegations.

[62] As was made clear in the course of the hearing, serious allegations have been made by Mr Banda concerning employment practices of the Respondent and are currently the subject of investigations by the FWO. The matters that are currently the subject of investigation by the FWO may or may not ultimately be brought before a Court. The jurisdictional question before this Commission as to whether Mr Banda was forced to resign has been complicated by family members sitting in opposing camps, allegations made by two witnesses in the Respondents case that Mr Banda had stolen from the Respondent, and a claimed reluctance by a relative of Mr Banda to give evidence.

[63] I advised the parties that I would reserve my view about whether the CCTV footage held by the Respondent but not yet filed, should be admitted and a further hearing date scheduled pending consideration of that evidence. I have concluded it is not necessary to deal with the CCTV footage and hear further evidence concerning it given my conclusion on the jurisdictional issue.

[64] Where an employee decides to submit a written resignation and asserts they were forced to resign the onus is on the applicant to make good that argument.[26] For the reasons set out above I cannot be satisfied on the available evidence that Mr Banda's resignation tendered in writing to the Respondent on 7 June 2017 amounted to a dismissal within the meaning of s.386(1)(b). On that basis the FWC does not have jurisdiction to deal with the matter and the application must be dismissed.

Mr J. Franken of Employee & Executive Protect for the Applicant

[18] Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB) 21 Nov 2000 Print T3496 [24]

[23] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941

[25] Applicant's Submissions in Regard to Extension of Time pages 3-4

[26] Australian Hearing v Peary (2009) 185 IR 359 at [30]

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