Lucky Verma v Manraj Singh Bhullar t/as Indian Tandoori Restaurant

[2013] FWC 253

[2013] FWC 253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Lucky Verma
v
Manraj Singh Bhullar t/as Indian Tandoori Restaurant
(U2012/9071)

DEPUTY PRESIDENT SAMS SYDNEY, 6 FEBRUARY 2013

Application for unfair dismissal remedy - jurisdiction - whether employee dismissed - abandonment of employment - whether dismissal harsh, unreasonable or unjust - performance issues - no jurisdiction of Commission - application dismissed.

BACKGROUND

[1] This decision will determine an application, filed on 10 July 2012 by Mr Lucky Singh Verma (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) on 10 July 2012, in which he seeks orders from the Fair Work Commission (‘the Commission’) for an unfair dismissal remedy arising from his alleged dismissal on 26 June 2012 or 6 July 2012. The applicant was employed as a chef at the Indian Tandoori Restaurant in Albury (‘the Albury Restaurant’) by Mr Manraj Singh Bhullar (the ‘respondent’ or ‘Mr Bhullar’) from late September or early October 2010. On 26 June 2012, he left the restaurant and did not return to work. The respondent is the owner and proprietor of the Albury Restaurant, the Indian Tandoori Restaurant in Wodonga, Victoria (‘the Wodonga Restaurant’) and has part interests in restaurants in Bright and Thurgoona, New South Wales.

[2] As will be evident from the above paragraph, the exact date that the applicant ceased to be employed is in contention. Nevertheless, I note that if either date is correct, and the applicant was in fact dismissed, his application under s 394 of the Act was filed within time for the purposes of subsection (2) of s 394.

[3] The applicant received a letter, dated 6 July 2012, from the Mr Bhullar’s solicitor, Mr Zach Marrett, expressed in the following terms:

‘Dear Mr Verma,

RE: YOUR EMPLOYMENT - THE INDIAN TANDOORI RESTAURANT, ALBURY

I act for Manraj Bhullar and the Indian Tandoori Restaurant which has several outlets in Regional NSW.

I am instructed that you abandoned your employment with the Indian Tandoori Restaurant in Albury NSW (“Restaurant”) when you did not return to your duties at the Restaurant after 26 July 2012 [subsequently corrected to 26 June 2012]. Despite my client meeting with you on 3 July 2012 you did not provide a reason for not returning to work nor did you give any explanation as to your sudden change in attitude at work and towards the other staff and management.

I have now received detailed instructions from my client on your performance while employed at the Restaurant and since you left the employment. I particularly note that there have been several complaints and issues with other staff, your deteriorating relationship with the management and your inability to perform your duties in a safe, proper and hygienic manner in accordance with your Statement of Duties which was provided to you at the commencement of your employment. Accordingly I have advised Mr Bhullar not to re-employ you at any of his restaurants due to Occupational Health and Safety concerns.

Furthermore, I am particularly concerned that your work attitude and relationship with other staff and management changed dramatically soon after you received your Australian permanent resident visa. It appears that from the outset you may have planned not to continue your employment with your sponsor once you have obtained your Australian permanent resident visa.

As a sponsor of your nominated position with the restaurant and your subsequent permanent residence visa based on that sponsorship, my client has a legal obligation under the Migration Act and its Regulations to inform the Department of Immigration and Citizenship (“DIAC”) if you are no longer employed in your nominated position at the restaurant or should my client no longer wish to employ you in the nominated position.

In compliance of my client’s obligations, I will provide a detailed submission to DIAC in due course.

Meanwhile I am instructed that when you left on 26 July 2012 [subsequently corrected to 26 June 2012] you took all your belongings with you but deliberately kept a set of keys to the Restaurant premises. As this is a security issue my client is extremely concerned by your actions. We ask that you return the keys immediately to Mr Bhullar and at the same time you may collect from him your final wages and group Certificate which is required for your tax returns. I have advised my client to inform the police if you fail to return the keys by 5.00pm on Saturday, 7 July 2012. For this purpose, Mr Bhullar will meet you at any reasonable location in Albury provided it is at a reasonable time of the day or evening. Until you return the keys to Mr Bhullar, we will hold you responsible for any loss or damage to any property belonging to the Restaurant and if required, we reserve the right to commence civil proceedings.

We suggest you take this opportunity to amicably settle all outstanding issues with my client.’

[4] The applicant submits that this letter constituted a dismissal within the meaning of s 386 of the Act. I shall come to the applicant’s evidence on this submission shortly.

[5] Mr Bhullar relies on the above letter to support his submission that there was no termination of the applicant’s employment at his Albury Restaurant. Rather, on 26 June 2012, the applicant abandoned his employment at the end of his regular dinner shift, without any prior notice to the Management. Moreover, despite being urged by the respondent to return to work at a meeting held on 3 July 2012, the applicant failed to do so. It was said that there had been planning on the applicant’s part not to return to work when he left his employment on 26 June 2012. This view was strengthened in the meeting of 3 July 2012 when the applicant showed no intention of returning to work. Accordingly, the applicant is not entitled to seek an unfair dismissal remedy, pursuant to the relevant provisions of the Act.

[6] At the hearing of the application in Wodonga, Victoria, on 21 November 2012, the applicant was represented by Mr G Dircks, Solicitor and the respondent was represented by Mr Z Marrett, Solicitor. Both legal representatives were granted permission to appear. At the outset of proceedings, I inquired of the parties as to their views as to whether the matter should proceed by way of hearing or conference; (s 399 of the Act). Both parties indicated a preference that conciliation should be attempted and I briefly adjourned into private conference. This conference ultimately proved unsuccessful and the matter proceeded to hearing later that morning.

THE EVIDENCE

[7] The following persons provided written and oral evidence in the proceedings:

● The applicant, Mr Lucky Singh Verma;

● Mr Prem Mohan, former Manager of the Albury Restaurant;

● The respondent, Mr Manraj Singh Bhullar

● Ms Harpreet Kaur, a cook at the Albury Restaurant; and

● Ms Antpreet Kaur, a cook at the Albury Restaurant.

The applicant

Commencement of employment and duties

[8] In his written statement, the applicant said that he arrived in Australia from India in 2007. He studied a Diploma of Hospitality, including a Certificate 3 in commercial cookery, at Chelsea International College, Melbourne, finishing in 2009. He then worked at a restaurant in West Footscray from 2009-2010 and in a delicatessen in Melbourne in 2010. In both jobs he was paid in cash. While he commenced employment with Mr Bhullar on 27 September 2010, his written contract was expressed as commencing on 4 October 2010 for a period of 2 years. He was employed under the Restaurant Industry Award on an annual salary of $35,000, plus superannuation.

[9] The applicant was also the holder of a Skilled - Regional Sponsored (Provisional) Visa (Subclass 487). I interpose to note that, as I understand it, this visa allows overseas students, amongst others, to apply for permanent visas once they have obtained employment, with a contract period of at least two years in a gazetted ‘Specified Regional Area of Australia’, subject to certain other requirements. As a result, the applicant distributed resumes at a number of restaurants in Albury. In response to one of these approaches, he was called by Mr Bhullar, who said that he had a job available for him at his Albury restaurant.

[10] The applicant said that following this telephone conversation, he and Mr Bhullar met at the Wodonga Restaurant. Mr Bhullar offered him a trial period. Subsequently, he performed a trial at the Wodonga restaurant for a dinner shift from 2pm until 10pm. While Mr Bhullar was happy with the applicant’s performance, he said he would need to give him a further trial at the Albury Restaurant.

[11] On or around 3 or 4 October 2010, there was a two hour interview between the applicant, Mr Bhullar and his partner, Mr Farooq Sheikh. Both Mr Bhullar and Mr Sheikh confirmed that they were willing to sponsor the applicant for his visa and that he would be paid $35,000 per year for a 38 hour week. A written contract was provided to the applicant on 12 October 2012. The applicant claimed that he was not paid for the work that he performed in the period between 27 September 2010 and 12 October 2010; although Mr Bhullar said he would offer him one week’s rent for the apartment in which he was staying.

[12] At the Albury Restaurant, the applicant was in charge of the tandoor oven, a clay oven used for cooking much of the restaurant’s food. His duties included marinating meat, cooking meat in the tandoor oven, making naan dough, preparing samosa dough, making samosas, making roti dough, making mint and raita, making colours, preparing vegetables and salads, looking after the charcoal and ordering stock for the dairy. The ordering of vegetables and dry stock was a job shared with the Head Chef. As there were no kitchen hands, he also cleaned the kitchen.

[13] The applicant claimed that from the commencement of his employment he was required to work more than 40 hours per week. He said he was not paid for overtime or weekend work. The roster periods displayed in the restaurant did not include preparation times for the six dinners and four lunches a week. He provided a personal record which he had kept of the hours he worked from 1 August 2011 until the time of his termination. He said he routinely started work at 11:30am from Wednesday to Saturday. On Monday and Tuesday, there was no lunch service, so he would start between 2:00-2:30pm and 3:30-3:30pm respectively. From Monday to Thursday, he would generally finish work at 10:30pm, although he noted that on Wednesdays there would usually be a quick break between shifts. On Friday and Saturdays, as the restaurant was open later, he would finish work at 11:00-11:30pm.

Applicant’s chronology of events

[14] The applicant deposed that he was subject to abusive conduct by Mr Bhullar in the workplace on a number of occasions. The first of these incidents occurred in November or December 2010, when Mr Bhullar came into the kitchen when food had been delayed for a table. The Head Chef asked Mr Bhullar if there was any dried apricot in the kitchen. After searching for two or three minutes, Mr Bhullar could not find the dried apricot. He exclaimed loudly that the applicant and Mr Prem Mohan, another cook on duty, were ‘sister fuckers’ and that they were not doing their job properly. It later emerged that Mr Bhullar had left the dried apricots in a bag on some shelves.

[15] A second incident occurred in the course of a busy Friday night in November or December 2010. Another chef, Mr Mohammed Osman, did not provide a docket to the kitchen for an order for a meat samosa. The order was subsequently delayed and the angry customer left without taking a gift voucher. Mr Bhullar’s wife, Naziya, rang her husband and he then spoke to Mr Osman and asked him to give the phone to the applicant. He was angry and said to him: ‘Lucky you are sister fucker. Don’t come to work from tomorrow’, and hung up the phone. The applicant said he had not known that the order had gone missing

[16] In a third incident in November or December 2010, Mr Osman took an order during lunch service that was from the dinner menu, rather than the standard lunch menu. While the applicant did not refuse to cook the order, he said he was ‘surprised’ that Mr Osman had not told the chefs that the dinner menu could also be served at lunch time. Mr Osman related this discussion to Mr Bhullar who spoke in a loud and aggressive fashion to the applicant in the presence of Mr Osman and another staff member: ‘You have no right to say ‘no’. Why did you say no to Osman?’ The applicant said that he felt shocked and humiliated by this incident.

[17] In a fourth incident in November or December 2010, Mr Bhullar’s mother accepted a takeaway order that was to be delivered before 5:00pm. The respondent’s opening time was from 5:30pm. The order was subsequently delivered late and Mr Bhullar’s father, Mr M. G. Singh (Mr Singh) asked the applicant why it was late. When the applicant responded that the restaurant opened at 5:30pm, Mr Singh replied ‘Who are you to tell me what to do or not to do in this restaurant? Many chefs came and gone like you.’ Mr Bhullar subsequently spoke to the applicant on 2 January 2011 about this incident. Mr Bhullar claimed that he was taking advantage of the fact that he was overseas at the time. He threatened to sack the applicant, saying that the busy season had passed and he did not need him anymore. He said words to the effect of ‘You were arguing with my father. Do you know my father killed so many people in the war?’ and ‘You do not know me. I can fuck my own sister for work and I can fuck anyone.’ The applicant said he had no option but to put up with the insults and unfair treatment because he needed his visa.

[18] The applicant said that between March and May 2011, he was ignored by Mr Bhullar whenever he came into the kitchen. At the time, he felt that he was under pressure, because he had not been trained in cooking using the tandoor oven. Whenever he asked for training, he was loudly told by Mr Bhullar that: ‘nobody will tell you anything and you have to learn by yourself.’ The applicant claimed that he had to work during his lunch breaks to finish preparation.

[19] The applicant gave another example of abuse that occurred when Mr Bhullar had told him to reduce the amount of roti dough he was making because he thought that the customers preferred naan bread. The restaurant subsequently ran out of roti dough and Mr Bhullar had been angry with him for allowing the restaurant to run out of roti.

[20] The applicant further deposed that after an occasion when he contacted the Skilled Migration Coordinator at Wodonga Council (Ms Johanna McFarlane) to inquire about the status of his case, Mr Bhullar was apparently told that he had called her. Mr Bhullar later came into the kitchen and shouted, ‘Why the hell did you call Johanna? I will tell you today who is going to be your case officer.’ The applicant said that he felt frightened and intimidated by this behaviour.

[21] The applicant said that on 7 April 2011, Mr Bhullar told him to coordinate with Prem Mohan, another chef at the restaurant, the shopping requirements for the restaurant. Mr Madan Lal Ganesh Teli, the Head Chef and the applicant told Mr Mohan what supplies were to be bought, but Mr Tal forgot to ask for vindaloo paste. When Mr Bhullar came to the kitchen and Mr Tal asked him to bring vindaloo paste from the Wodonga restaurant, Mr Bhullar said that the applicant would be in charge of dry stock from that day. He shouted at the applicant that he was a ‘sister fucker’ and threatened him by saying ‘Don’t you know I can kick you out anytime?’

[22] The applicant said that when he received his permanent visa on 27 May 2011, Mr Bhullar’s behaviour suddenly improved, but only for a short period. On 25 September 2011, he asked Mr Bhullar in the presence of Mr Osman, if he could have Tuesday off, instead of his regular Sunday. Mr Bhullar agreed. The applicant worked on the Sunday. Mr Osman rang Mr Bhullar to confirm that the applicant was working and that he would be taking Tuesday off. Mr Bhullar did not take the call. The applicant called Mr Bhullar on the Monday to ask if he could still have Tuesday off. Mr Bhullar would not listen and swore at the applicant and said that he had appointed Mr Osman, ‘the sister fucker’, to look after the rostering at the restaurant. Mr Bhullar had also called Mr Osman and verbally abused him over the phone. The applicant worked on the Tuesday.

[23] The applicant said that on 31 December 2011, Mr Bhullar sent a text message directing that the restaurant would run a Sunday buffet, as well as a regular menu in the evening. Only Ms Harpreet Kaur and Mr Osman were sent the text. Mr Bhullar had excluded him from the text and the applicant believed this exclusion was a form of indirect bullying.

[24] On 3 January 2012, Mr Bhullar sent a text message to the applicant indicating that all the cooks were to leave the kitchen and finish all the collective duties, except Mr Tal and Mr Osman. The applicant took this as meaning that he would be finishing all the kitchen tasks and Mr Tal and Mr Osman were not required to stay to finish their kitchen duties. The applicant said he felt that Mr Bhullar intended this action to isolate him from the other employees. He and Mr Bhullar had a meeting about this issue on 7 January 2012.

[25] The applicant believed that his work was valued and cited the fact that he was one of four employees nominated for ‘Employee of the Year’ in 2011 from the pool of employees from all of Mr Bhullar’s restaurants. Despite this, the applicant claimed he developed a ‘sleeping’ disturbance which he attributed to the ‘extreme pressure’ of the job and his exploitation by Mr Bhullar. He has been under a State Mental Health Plan since September 2011. He claimed the bullying by Mr Bhullar had been ongoing and he further claimed that unpaid overtime was a basic requirement of the job.

Final incident

[26] The following text messages were exchanged between the applicant and Mr Bhullar between 20 June 2012 and 10 July 2012:

Mr Bhullar 20/6/12 6:16:45 PM

Lucky plz have luncheon off tomorrow. Hence do Wed, fri & Sat. Give necessary instructions to Ants, if so required for Tandoori ops and prep for luncheon tomorrow.

Applicant 21/6/2012 12:49:24PM

This is not fair for full time to tell on time about their off.moreover i was on service that time.I always do adjustments whenever need of hour.I do all my preparation according to my schedule because i know I have to do everything.its already in mind that weekend is going to busy do the preparation in the weekdays according to that.

Applicant 21/6/2012 12:49:24 PM

moreover there is no separate time for preparation because at the same time you to prepare for service as well which decrease your momentum for the preparation.and on Friday and Saturday I will be alone with the pressure of my preparation. I have to do an extra time for the same task.if we will see this scenario this is not good planning.might be u have better suggestions, if so please advice me with work flow chart.

Applicant 27/6/2012 10:07:19 AM

I sent u an email. Please check it.thanks

Applicant 8/7/2012 10:35:14 PM

I saw your e-mail regarding just now.I want to return your keys asap.

Applicant 9/7/2012 9:24:20 AM

2nd reminder:please tell me where and when I can meet you to return your keys.

Mr Bhullar 9/7/2912 9:47:33 AM

I am at hospice now, text you after 10.30, or we meet at Albury restaurant at 12noon anyways, should be finished by then.

Applicant 10/7/2012 12:04:19 PM

Please Just make me sure you are coming

[27] On 26 June 2012, there was an incident at the restaurant involving the applicant and Mr Bhullar’s father (Mr Singh). The applicant did not return to the restaurant to work after this night.

[28] The applicant deposed that on the night, Mr Singh came into the kitchen and asked the applicant to prepare chickpea flour roti - an item that was not on the menu. When the applicant said that he did not know how to prepare it, Mr Singh pointed to Mr Lal and said ‘Here is your father. Ask him.’ The applicant found this remark personally insulting. He asked Mr Singh why he had made that comment. Mr Singh apologised. However, the applicant did not believe his apology was sincere.

[29] The next day the applicant forwarded an email to Mr Bhullar. It was expressed as follows and is unedited:

‘Respected Sir,

There was incident happened tonight between your father Mr.M.G.Singh and me

Here is the total conversation between us;

He came to kitchen and told Madan chef “my guests are coming.Do u have chick pea flour?” Madan asked me. I checked it and said yes

I asked your father how much he needs.He told me that He need chick pea flour roti.

I said I dont know how to knead and make chick pea flour roti.

He said very proudly and in funny way “here your father ask him” (eh tera baap khdha hain ithe) pointing towards Madan chef.

I just shocked to listen to those words.Icontrolled my anger and asked Mr.M.G.Singh when I said no to you

But where my father came from in this conversation???? After listening that he said sorry but having no shame at all about his actions.

And he left the kitchen.I was crying from inside and totally shattered.Those words were just in mind during my service time and I was feeling so down.

Only I know how hard it was for me to control my emotions and anger same time during whole service time.

I was telling myself not to create any scene there at least during service time.

As you are always saying that your father was in army in good rank and he have all the senses how to talk with others even you told that ppl of albury saying that he is very polite and friendly

He never treats me in that way. Why so?? He always talks with me like illiterate person.

If you were at my place what would you have done????

There was also another incident happened because of your father in the restaurant in Nov-Dec 2010.there was take away taken by your mother to deliver before 5 p.m. on Monday. We delivered it but he wanted to know why that take away was late.Even though restaurant opening time is from 5:30 pm everyday.when I tried to tell M.G.singh he angrily replied who r u to tell me what to do or not to do in this restaurant in this restaurant and many chefs came and gone like you. Mr M.G.singh was so rude with me even that time.

He also come most of time in the restaurant between 4:30 -5:00pm and ask to prepare for meal from his own menu.I am always in between my preparation and I never say no to him for his demands for his meal.I always do adjustments even I don’t have enough time for my own prepration. Even today I prepared myself to given him chick pea flour roti which is not from the menu.

Please advice me what is position of Mr. M.G.singh in this restaurant to tell who is my father and do loose talk insulting me infront of others.I work for you and I think nobody else has a right to treat me like this. Nobody has right to make any personal comments on workplace.

There have been three occasions created by you to force me to resign from the job.But till date I am tolerating everything and tried my best to complete my contract time.I am unable to figure out why you want me to resign even you told me that “I am doing good job.”’

It is a legal duty of employers and managers to protect the health, safety and welfare of their employees and of other people in the workplace whose health and safety may be affected by the work being undertaken. This duty could include risks arising from workplace bullying.’

[30] The applicant went on to complain that he was constantly working far more than 38 hours per week. He concluded:

‘If you are not sending me my roaster with 38 hrs per week by e-mail I will not be able to come for work.

I am not coming to work this week because of my mental stress. I need some time off from this environment to get myself altogether. I am totally shattered and down because of incident happened tonight.

I hope that I will not be exploited in future because of this e-mail and hope you would understand my situation and cooperate with me.’

[31] The applicant said that on Monday 2 July 2012, Mr Bhullar rang him and said: ‘Why are you creating a problem?’. He replied, ‘What problem, I have already sent an email to you. I am looking for an answer from your side.’ Mr Bhullar replied that he had read it. They agreed to meet at a local Albury cafe the next day. At this meeting, Mr Bhullar said:

‘Why are you sending me this kind of email? Are you taking legal action against me? You’ve got your permanent residency. I knew you are doing a good job. I don’t have an issue with your job. That’s fine. I know you have more calibre. You can easily get more than we pay you. If you are really interested we might become partners in a restaurant. If you don’t we can still help you out somehow.’

The applicant said that if he could have a 38 hour per week roster, he would start again that day. However, Mr Bhullar laughed and replied, ‘You can easily get a job anywhere.’ The applicant took this to mean that he was not going to get a 38 hour roster and said: ‘It means that you don’t want me to come back. There is no point sitting around here if you are not giving me my roster. We can talk about it some other time.’ Mr Bhullar suggested meeting again the next day, but the applicant replied that this was too soon as he was too stressed. They agreed to meet again on Tuesday 10 July 2012. However, the applicant subsequently received the letter from the respondent’s solicitor (see para [3]) on 6 July 2012.

[32] In oral testimony, the applicant denied much of Mr Bhullar’s evidence, specifically that:

● there was a discussion with Mr Bhullar in which he informed him, after the initial rejection of the sponsorship application by DIAC, that he would be abandoning sponsorship of the applicant’s visa, as he only required an assistant cook at that time;

● he pleaded to be given the job following DIAC’s initial rejection;

● he was given $200 for rent while was undergoing training. He said that he was just paid one week’s rent, in the amount of $180;

● Mr Bhullar gave him small cash amounts from the till during this time. He said that he did not receive pay slips for the first year;

● there was an incident where he almost destroyed a tandoor oven by pouring cold water onto the clay;

● he requested a change to his roster;

● he set out to get himself dismissed after obtaining permanent residency.

● he ‘picked an argument’ with Mr Bhullar’s father;

● he said ‘Working at the restaurant is not possible now’ at the meeting in the cafe on 3 July 2012;

● making any references to gangs in India at the meeting in the cafe on 3 July 2012;

● Mr Bhullar was present at the restaurant when he left work on 26 June 2012; and

● taking a knife sharpener from the restaurant.

[33] The applicant admitted that he took his own knife home from the restaurant on 26 June 2012, as well as his clothes in a bag. He would usually do this twice a week.

[34] The applicant deposed that he had been working in Melbourne since mid August 2012 as a taxi driver. He worked two or three days a week, part time, and split the proceeds of the meter with the private owner of the taxi. He denied that he had earlier told Mr Bhullar that he could earn $1500 per week driving taxis in Melbourne. He had never made that kind of money driving taxis. He denied telling Mr Bhullar that his wife was expecting and that he was not earning enough. However, he agreed that he had told Mr Bhullar that his wife was pregnant.

[35] In cross-examination, in response to a question as to why he had not complained about underpayment to the Fair Work Ombudsman (FWO) earlier, the applicant said that he had wanted to negotiate with Mr Bhullar. While the FWO had presented some solutions to him, he was worried about what would happen to his visa status if he complained to Mr Bhullar. While he was granted a permanent visa, he believed it was a condition of this visa that he remain in the nominated position with Mr Bhullar for two years.

[36] The applicant agreed that there had been a fixed roster at the restaurant. However, he never worked according to that roster. The applicant denied that entries he made in a 2007 diary as to his hours of work were all made at the same time and said a writing expert would confirm his entries. He claimed that when he raised the long hours he was working with Mr Bhullar, he was ignored or told he would be sacked.

Mr Prem Mohan

[37] Mr Mohan was the manager of the Albury Restaurant between September 2010 and December 2011. Mr Mohan said that he was not given a copy of his contract after signing it, despite requesting it on a number of occasions. Mr Mohan had prepared a written statement to be sent to WorkCover in relation to allegations of bullying and harassment and adopted that statement as his evidence in these proceedings.

[38] Mr Mohan said that on one night in January 2010, he had been working alone in a front of house capacity at the Wodonga restaurant. There was a booking of about 20 people in the Function Room and a further 4-5 customers who had arrived without bookings at 6:30pm. He received a phone call from Mr Rajwinder Gill, the Manager of the Albury Restaurant to ask how things were going. He responded that he thought that they might have 40 customers that night and he might need some help. When Mr Gill told Mr Bhullar, he swore at Mr Mohan and abused him. When Mr Bhullar came to the Wodonga restaurant after closing time, he abused him in front of ‘everyone’, including Mr Madan Lal Ganesh Teli, Dharinder Gill and Rajwinder Gill. Mr Bhullar then gradually cut his shifts.

[39] Mr Mohan said that on another busy night, the Chef was given an order for apricot chicken and he did not have dried apricot in stock. At the time the Chef asked for dried apricot, Mr Mohan said that he was ‘busy in my work’. Orders had been delayed. Mr Bhullar came into the kitchen. When the Chef asked Mr Bhullar if he knew where the dried apricot was, Mr Bhullar searched for two or three minutes and did not find it. He said loudly that he and the applicant were ‘sister fuckers’ and ‘they are not doing their job properly’. It emerged later that the dried apricot had been put on the shelves in a bag by Mr Bhullar.

[40] Mr Mohan said that Mr Bhullar expected staff members to open the door for customers when arriving or leaving the restaurant. As he was a manager and worked behind the bar, he was not able to do this on every occasion. When Mr Bhullar’s wife worked one night, she told him that Mr Mohan was not greeting customers on arrival. Mr Bhullar walked into the kitchen, where Mr Mohan was cleaning a baby chair, grabbed him by the collar and pushed him out of the kitchen. Mr Bhullar then dragged him back into the kitchen by the collar, while shouting, ‘Don’t tell your father how to fuck.’ This incident was witnessed by Mr Madan Lal Ganesh Teli, the applicant, Ms Harpreet Kaur, Mr Mohammed Osman and Ms Ramanpreet Kaur.

[41] Mr Mohan said Mr Bhullar forced another staff member, Mr Mohammed Osman, to say that he took a long time to make coffee and that he was lazy. He believed that Mr Osman was under pressure to say these things because his visa was sponsored by Mr Bhullar. Mr Mohan also claimed that he was under pressure to force casual staff to work unpaid overtime and believed that Mr Bhullar labelled him a ‘lazy worker’ because he refused to do so. Mr Bhullar also deliberately delayed his pay and reimbursement for shopping expenses as a way of harassing him. Moreover, Mr Bhullar did not issue payslips to anyone.

[42] Mr Mohan and the applicant discussed their issues at work with each other. The applicant had told him about a sleeping disturbance he was suffering due to stress. When they raised this issue with Mr Bhullar, he just laughed.

[43] In oral evidence, Mr Mohan deposed that the staff were never instructed to fill out timesheets and there was no record kept by Mr Bhullar of the actual times that people worked. He said that cooks would attend the restaurants at 3:00pm, in order to prepare for dinner, which commenced at 5:30pm. Because weekends were busy, staff were frequently required to stay back past the nominal closing time of the restaurant.

[44] Mr Mohan said there were many instances when Mr Bhullar had been abusive to him and other staff. Mr Bhullar always blamed his workers for any mistakes, despite the fact that they worked hard with no overtime. However, in re-examination, Mr Mohan said that Mr Bhullar did not regularly attend the restaurant.

[45] Mr Mohan described another incident when he went to buy gloves for the applicant to wear while preparing the food. Mr Bhullar swore at him and the applicant and said there was not need to use gloves as they were not Australians and that no one in his restaurant had ever used gloves (The applicant had not mentioned this incident in his statement.).

[46] In cross examination, Mr Mohan said that he had not complained to WorkCover until June or July 2012 because he was concerned that he would be immediately sacked. However, he agreed that his own visa was not one under the Regional Sponsored Migration Scheme (RSMS) and he therefore he did not have to satisfy the two year working requirement, such as was the case with the applicant’s visa. Mr Mohan accepted that he and the applicant had discussed the complaint to WorkCover. However, the applicant had made his complaint earlier. Together, they had made a complaint to the FWO.

[47] In response to a question as to his responsibility as a Manager to report abusive and bullying conduct to WorkCover, Mr Mohan said that he did not know that they could complain to WorkCover. Mr Bhullar had not provided or organised training in this respect; although he had done so after they had complained. Mr Mohan said that he had sent several emails to Mr Bhullar in relation to the issues he identified above.

[48] In answer to a question from me, Mr Mohan deposed that his period of employment with the respondent ended on 7 December 2011 after he had taken a period of annual leave starting at the end of October 2011. He had sent an email to the respondent while on annual leave informing him that he had hurt his back and would be unable to work for a further two weeks after his annual leave concluded. He then sent text messages to him saying that he would not be able to work full time because he was now working part-time at McDonalds. He then met Mr Bhullar at the restaurant to tell him that he was now well enough to work. Mr Bhullar told him that he would call him after the Christmas party to determine which of the restaurants Mr Mohan would be working at. However, Mr Bhullar never called him back.

[49] Mr Mohan explained that after the Australian Tax Office (ATO) had applied a penalty to his tax return for his claiming of car expenses, he had asked Mr Bhullar to write a letter detailing his duties in shopping for the restaurant. When the letter was rejected by the ATO, he asked Mr Bhullar to write another letter addressing the ATO’s requirements. However, Mr Bhullar did not reply to his emails.

[50] Mr Mohan clarified that he had worked full time for Mr Bhullar from September 2010 to December 2011 and as a casual from June 2009 to January 2010. After this time, he had also worked at another Indian restaurant in Albury, but had left there after a conflict with the Management and returned to Mr Bhullar’s employ, who paid him more. Mr Mohan claimed that the systematic bullying by Mr Bhullar only started after he became a full time employee. However, he admitted that the incident which occurred in January 2010 (see para [38]) had occurred while he was a casual and had been resolved the next day.

Mr Manraj Singh Bhullar

[51] Mr Bhullar said that the Albury Restaurant’s trading hours were as follows:

Lunch		Dinner
Open	Close	Open	Close
Monday	Closed	Closed	5:30pm	10:00pm
Tuesday	Closed	Closed	5:30pm	10:00pm
Wednesday	12:00pm	2:30pm	5:30pm	10:00pm
Thursday	12:00pm	2:30pm	5:30pm	10:00pm
Friday	12:00pm	2:30pm	5:30pm	10:30pm
Saturday	12:00pm	2:30pm	5:30pm	10:30pm
Sunday	11:30am	2:30pm	5:30pm	9:30pm

[52] Mr Bhullar said that the lunch trade in a regional restaurant is fairly slow (5-8 customers) compared to CBD restaurants. The restaurant was mainly open over lunch for advertising and promotional reasons, but also to allow for preparation for dinner. While there has been a buffet lunch menu on Sundays since October 2010, the applicant was never rostered to cook for the Sunday buffet.

[53] Mr Bhullar claimed that initially the applicant had admitted, despite his qualifications, that he had no idea how to prepare a meal, particularly an Indian meal. In his two previous jobs in Melbourne and West Footscray, he had been a volunteer kitchen hand. He understood that both restaurants refused to sponsor his visa and he left. Mr Bhullar also understood that he had worked as a taxi driver and could earn up to $1500.00 per week. He wanted to be a Cook so that he could get a permanent visa through the Regional Sponsored Migration Scheme (RSMS), a program run by DIAC in conjunction with regional authorities to address difficulties in finding staff for regional businesses. While Mr Bhullar was disappointed at the applicant’s attitude to the position, as being a mere means to an end, and suspected that he would leave when he received his visa, he had needed someone to assist his Head Cook. He agreed to employ the applicant and sponsor his RSMS visa.

[54] Mr Bhullar further explained that after seeking advice of the Skilled Migration Coordinator at Wodonga City Council, Ms Johanna McFarlane, he hired the applicant as an Assistant Cook. An agreement referring to the applicant as such was rejected by DIAC because it did not comply with the regulatory requirements that: (1) the term of the agreement had to be for at least two years; and (2) the position was required to match a position on the Employer Nominated Skilled Occupation List (‘ENSOL’). ‘Assistant Cook’ did not match a description on ENSOL. Mr Bhullar said that this rejection caused him to consider abandoning his sponsorship arrangement with the applicant. He informed the applicant of his view and they had the following conversation in Punjabi:

Applicant	I am very depressed about this and I cannot concentrate
Mr Bhullar	Lucky, please understand that I have two good cooks here and so I only need someone to assist them. If I have to hire another cook at least I am expecting you to have the skills to do Indian cooking. Then I can concentrate on running the business. I don’t need a cook now, but when the business gets better I am sure i will need another cook. Maybe in about 6 months or so.
Applicant:	Manraj, I have worked for nothing before and I am ready to do the same again until I learn how to cook. You don’t have to pay me at all while you train me. Please help me I need to get my residency in Australia and I desperately need this job.

[55] Mr Bhullar said that he was sympathetic to the applicant and they continued to discuss the applicant’s situation. They continued the conversation as follows:

Mr Bhullar:	Ok, I understand. I will train you for two weeks on the Tandoor oven. This is the easiest job in the kitchen and you just need to concentrate on this only. If you are able to learn quickly then I will employ you and put in your sponsorship.
Applicant:	Please, a lot of time has been wasted. Please put in the sponsorship now and if I don’t make it, you can withdraw the sponsorship. You don’t lose anything. I need the peace of mind.
Mr Bhullar:	Ok, I will get some advice first and do the changes. If you fail me, I won’t employ you and will withdraw the sponsorship.
Applicant:	Ok, thank you so much for understanding my situation. I will repay you by working very hard.

[56] The following day a new employment contract was drafted which referred to the applicant as a ‘Cook’, a job title that was listed on ENSOL. Mr Bhullar put that as part of the arrangement made with the applicant, there was a need for him to undergo training for a period of a week, for which he would not be paid because he had no experience in Indian cooking. The applicant was given a week’s training with free meals and $200.00 to cover his rent for the week; although the flat was owned by the Company. He also gave him small amounts of cash from the till on two occasions. The applicant was placed on the payroll after the first week, although Mr Bhullar felt that he was not fully trained. Mr Bhullar denied that the applicant worked unpaid for two weeks. He said that he received his first fortnightly pay of $1186.00 on 25 October 2012.

[57] Mr Bhullar attached a copy of the fixed roster to his statement. It had been placed in the kitchen. He denied that the applicant was routinely required to work overtime and stated that he was only required to work in accordance with this roster. The kitchen closed half an hour prior to the restaurant closing and the applicant and his colleagues, some of whom performed more intensive work, were required to clean the kitchen and leave by closing time.

[58] Mr Bhullar claimed that he provided fortnightly payslips to his employees. He provided copies of these to the Commission. He also provided documents signed by the applicant, which were said to prove his acknowledgment of receipt of his wages (although the majority of these were unsigned). The applicant never asked about overtime, because he understood that his tasks were to be finished within the time allotted for his shift.

[59] Mr Bhullar deposed that on 17 January 2011, the applicant requested a change in his roster so that he could work on Mondays, rather than Sundays. A new roster was placed in the kitchen shortly afterwards. In March 2012, the applicant again asked that his shifts be changed so that he no longer worked on Saturday lunches. Mr Bhullar also accommodated this request. Mr Bhullar conceded that he had not sent the text message regarding the buffet arrangements to the applicant (see para [23]). However, this was because the applicant was not involved in preparations for the buffet. He denied any intention to isolate him. Rather, he wanted the applicant to concentrate on his own duties, as it was not uncommon for him to leave a job half done or fail to clean up after himself.

[60] Mr Bhullar claimed that he was very ‘tolerant’ with his staff and that his relationship with staff had always been ‘excellent’. Nevertheless, Mr Bhullar acknowledged that he was ‘very firm in my dealings with my staff.’ The restaurant had received a number of awards and statements of appreciation from the local community. He denied all allegations of his use of ‘obscene’, ‘vulgar and offensive’ language. He emphasised that he would not permit the use of such language anywhere in the restaurant. He said further that his father is a ‘soft spoken person’ and that if the sort of confrontation alleged by the applicant had occurred, his father would have told him, so that the matter could be resolved.

[61] Mr Bhullar said that the applicant initially worked very hard, but made mistakes; on one occasion he almost destroyed the tandoor oven, which was worth $3000, by pouring cold water onto the clay interior. However, he ‘did not want to go through the lengthy process with DIAC to get a replacement cook’. He denied using a loud voice to remonstrate with the applicant when he complained that he could not use the tandoor oven properly (see para [18]).

[62] Mr Bhullar said he had a meeting with the applicant on 2 January 2011 concerning a number of performance and conduct issues. He provided a copy of the minutes of the meeting to the applicant (the applicant denied he received these minutes). Mr Bhullar later sent a performance report to the applicant by email on 10 February 2011, which commenced as follows:

‘Further to our meetings on 02 jan.11 & 05.Feb.11, you have shown considerable improvement at work. Please go through some aspects which are stated as follows:

...’

Mr Bhullar then identified numerous tasks and duties he expected the applicant to perform and complete. Mr Bhullar agreed with the applicant’s statement that he had expressed some satisfaction with his limited kitchens skills, but added that he needed to learn more.

[63] Mr Bhullar believed that the applicant’s behaviour changed after he obtained his permanent visa in mid-2011. He was short-tempered with other staff and his emails became more demanding. By early 2012, Mr Bhullar came to the conclusion that the applicant wanted to be terminated because while it was a condition of his visa that he remain employed with his sponsor for two years, this requirement could be side-stepped if he was terminated. Mr Bhullar did not want to terminate him, as this would create more work for the other Cooks. He said that he nominated the applicant for ‘Employee of the Year’ so as to encourage him to change his attitude and remain in Albury. In cross examination, he accepted that the other three nominations were not poor performers.

[64] Mr Bhullar said that he received the applicant’s email in relation to his confrontation with his father early on 27 June 2012 (see para [29]). The next day, Mr Bhullar spoke to his father about the incident and they had a discussion in Punjabi. Mr Bhullar’s father was seriously ill and unable to provide a statement or give evidence in the proceedings. However, Mr Bhullar had asked him if there had been any issues with the applicant. His father replied in words to the effect of:

‘I was at the restaurant with some friends and I went into the kitchen and I spoke to Madan to make some Roti with chickpea flour. Madan asked Lucky to check if there was any chickpea flour and when Lucky found it [sic]. Madan then asked Lucky to make the roti for me and he replied to me quite rudely that he does not know how to make roti with chickpea flour. He was in a terrible mood. I tried to calm him down and said to him that anyone who makes roti in the tandoor should also know how to make it with chickpea flour. I reminded him that surely he would have had this in his father’s house. He became quite angry and raised his voice at me and said why bring his father into this. I was surprised as I grew up first tasting chickpea flour roti in my father’s house. Anyway I had no intention of offending anyone so I apologised to him immediately and tried to explain what I was saying was not to offend him. He was not listening so I told Madan to show him how to make it. He then became even more offended because I had asked Madan to teach him. I think he just did not want to make the roti. I did not insist and I left the kitchen immediately.’

Mr Bhullar said that the process of creating a specific roti would not have been difficult. He believed the applicant was using this incident as grounds for leaving the restaurant.

[65] Mr Bhullar claimed that a few days later, he spoke to Ms Harpreet Kaur, another Cook at the restaurant. She told him that on the night of 26 June 2012, the applicant had taken his personal belongings with him, including his own knife.

[66] Mr Bhullar deposed that he had a ‘cordial’ telephone conversation with the applicant on 2 July 2012 in which they agreed to meet at an Albury cafe the next day. At that meeting, Mr Bhullar said: ‘I know why you are doing all this and your motives.’ The applicant did not reply. Mr Bhullar then asked: ‘What are your plans now. Are you still interested in coming back to work. I still need you to cover the shifts.’ The applicant replied ‘Working at the restaurant is not possible. Things will get very bad.’ Mr Bhullar asked what he meant and the applicant alluded to his involvement with gangs in India and said: ‘You can see wound marks on my body. I was involved in all these gangs in India and getting into trouble often and for this reason my parents sent me to Australia.’ Mr Bhullar then quickly ended the meeting, having formed the clear impression that the applicant did not intend to return to work and that he had abandoned his employment after unsuccessfully seeking to have himself dismissed.

[67] Mr Bhullar said the applicant’s comments had made him anxious as to his intentions towards his restaurant. As a result, he contacted his solicitor (Mr Marrett) to outline his concerns on 5 July 2012. Mr Marrett said that he would write to the applicant. Mr Marrett further advised Mr Bhullar not to employ the applicant, under any circumstances, as this would be an occupational health and safety issue.

[68] Mr Bhullar said that he received a text message from the applicant on 8 July 2012 (see para [26]). Mr Bhullar denied that he sent an email to the applicant as alluded to in that text message, but agreed that he had received a text message on 9 July 2012 and replied the same day. He met the applicant at the restaurant on 9 July 2012 around noon. The applicant returned the keys and Mr Bhullar gave him a cheque in the amount of $2076.75. They shook hands, exchanged some pleasantries and the applicant left the restaurant. Mr Bhullar denied receiving any further text messages or meeting with the applicant after 9 July 2012. Mr Bhullar added that the first time that he had heard of the applicant’s ‘sleep disturbance’ or State Mental Health Plan, was in the applicant’s written statement for these proceedings.

[69] Mr Bhullar denied that the applicant was required to work outside his rostered hours. The kitchen usually closed half an hour before closing time to allow clean-up. In fact, the applicant’s clean-up was less than the other cooks. In addition, there were always one to three kitchen hands who assisted in the clean-up.

[70] Mr Bhullar said that he had an excellent relationship with Mr Mohan until after he left in December 2011. He denied all of the allegations made by Mr Mohan. On 10 January 2012, Mr Mohan sent him an email asking him to make a false statement to the ATO in relation to his vehicle expenses. When he refused, Mr Mohan became very angry. Both Mr Mohan and the applicant lodged applications with WorkCover just after 6 July 2012, both of which were rejected in three weeks. Nevertheless, Mr Bhullar had a genuine interest in the health and safety of his employees and had recently engaged a professional trainer to teach these skills (25 October 2012).

[71] In oral testimony, Mr Bhullar said that employee payslips are sent electronically or printed out and left in an envelope for the staff member to pick up. He was sure that the applicant had received most, if not all, of his pay slips. These pay slips did not include hours of work, but were referable to the rosters. Employees would subsequently sign a ‘Time and Pay Sheet’ to confirm that they had received the relevant amount, but this did not include a record of the hours actually worked by the employee.

[72] In cross-examination, Mr Bhullar denied that the applicant’s hours were longer than those on the fixed time sheet. He knew that this was the case because he was in the restaurant most of the time. Mr Bhullar admitted that while he did have time sheets at work for the employees to fill in their actual hours, these were not provided for full time employees. In relation to the applicant’s email of 26 June 2012 in which he claimed he was working 55-60 hours per week, Mr Bhullar agreed that he did not deny the assertion underlying that statement at the time. However, there was no mention of overtime during the meeting at the cafe on 3 July 2012. He denied the applicant’s version of the conversation.

[73] Mr Bhullar claimed that when the applicant applied cold water to the tandoor oven wall, it was damaged to the point where he needed to purchase fire cement and apply a special mixture to repair it. While it was not destroyed, it was damaged to the point that heat escaped. Replacing the tandoor oven would have required breaking windows and doors in order to move it. This was not a desirable option. Mr Bhullar agreed that no performance report or similar document had been forwarded to the applicant after the one forwarded to him on 10 February 2011 (see para [62]). However, there were other meetings held to discuss his performance after this time.

[74] Mr Bhullar deposed that he was not aware of allegations that the applicant had taken a knife sharpener from the kitchen after the incident of 26 June 2012. Nor did he instruct his solicitor to address this allegation in the Form F3 response to the application. However, to his knowledge, the applicant had never taken his knife or work shoes with him after work before. In re-examination, Mr Bhullar agreed that while he had been at the restaurant on 26 June 2012, he had not seen the applicant leave the restaurant.

Ms Harpreet Kaur

[75] Ms Harpreet Kaur has been working at the Albury Restaurant since November 2010; first as a kitchen-hand and later as a Cook. In a written statement, she deposed that she has a fixed 38 hour week roster ‘like everyone else in the restaurant.’ Her roster is spread over three lunch shifts and six dinner shifts each week. There is a half-hour meal break each day and one day off per week. She said it is quite common for staff to stay back at the restaurant to talk and watch movies in between the lunch and dinner service. She never works overtime as the restaurant is adequately staffed. The lunch shift is only busy on Sundays, when there is a lunch time buffet.

[76] Ms Harpreet Kaur said that when only two cooks are working, she is fully responsible for the operation of the tandoor oven. She noted that it takes less than two minutes to cook naan bread. She described the cooking process as ‘quite fast’ and says that when naan and chicken are in the tandoor oven, this gives her an opportunity to get on with other chores, including food preparation.

[77] Ms Harpreet Kaur was a kitchen hand when the applicant began working at the restaurant. She and Mr Bhullar spent ‘many hours’ showing him how to use the tandoor oven. However, he still made mistakes - even after months of training. She worked with the applicant when their rosters coincided and would always assist him with the tandoor oven. She described his earlier attitude as ‘eager to work’ before he was granted a permanent visa, but he had a short temper after it was granted.

[78] Ms Harpreet Kaur was working with the applicant on 26 June 2012. The last order was taken after 9:00pm. She deposed that at the end of the shift at around 10:00pm, she saw the applicant put his clothes, work shoes and knife into his bag as he left. As this was unusual, she asked the applicant if he was taking a holiday. He replied: ‘No. I am taking the bag so I can wash my clothes. Do you have any doubts?’ While she had seen him, on other occasions, take his clothes home to wash them, she had never seen him take his work shoes and knife. He would always hide his knife in the kitchen at the end of a shift.

[79] Ms Harpreet Kaur said that when she was talking to Mr Bhullar a few days later, she told him that the applicant had taken his shoes and knife. Mr Bhullar looked surprised.

[80] In cross-examination, Ms Harpreet Kaur said that on the night of 26 June 2012, she was working as the Counter Chef. When the applicant went to go home, she was working on the till. When she saw the applicant put his clothes, shoes and knife in his bag, she was bagging takeaway in the kitchen between the Tandoor Chef and the Counter Chef.

Ms Antpreet Kaur

[81] In her statement, Ms Antpreet Kaur said that she has been working as a cook at the Albury Restaurant since February 2012. She initially started working part time, but her hours increased as she became more familiar with tandoori cooking. At the time she made her statement, she was a on a fixed roster of 33 hours per week, spread out over five lunches and six dinner shifts. She never worked overtime. She described her role as supporting other cooks when the restaurant was busy. At other times, she would do the basic food preparation for the next or subsequent days. Ms Antpreet Kaur said she would sometimes stay at the restaurant between lunch and dinner service to chat with other staff. She observed that occasionally, the applicant would stay as well.

[82] Ms Antpreet Kaur deposed that the applicant’s responsibility was working the tandoor oven. His responsibilities were otherwise minimal. She claimed it would take him a long time to do his tasks, as he liked to chat. He had difficulty maintaining the tandoor oven and made mistakes over a long time.

[83] On 26 June 2012, she was working in the kitchen for the dinner shift. In cross examination, she said that at the end of her shift she was working on the till when the applicant left. She had observed the applicant putting food away and putting his work clothes into his bag. He changed out of his work shoes and put his personal knife in his bag. As she was surprised by this, she asked him if he was going for a holiday. His reply was ‘Do you have doubt?’, which she found quite impolite. At the time, she assumed that the applicant was going away for a few days. In cross-examination, Ms Antpreet Kaur said that she had not overheard Ms Harpreet Kaur ask if the applicant was going on holiday, nor was she aware that Ms Harpreet Kaur was going to ask him the same question.

[84] Ms Antpreet Kaur said that she later told Mr Bhullar about the shoes and the knife and he said: ‘Yes, Harpreet told me about this too. She saw him take his knife and shoes with him when he left. He is not coming back.’ She agreed with this.

SUBMISSIONS

For the respondent

[85] Mr Z Marrett, submitted that the question of whether the applicant had been dismissed by Mr Bhullar or whether he had abandoned or resigned his employment was a matter of fact and that any conclusions must be drawn from both parties’ evidence of what took place before, during and after 26 June 2012.

[86] Mr Marrett noted that under the applicant’s contract of employment dated 3 October 2010, he was under a contractual obligation to remain employed at the Albury Restaurant. He referred to s 137Q(2) of the Migration Act 1958, which allows the Minister for Immigration to cancel a regional sponsored visa where the required employment period had not been complied with and the holder had not made reasonable efforts to remain in that employment for the required period. Accordingly, under the provisions of his permanent resident visa, the applicant was obliged to remain employed at the restaurant for two years from the date of grant of his permanent resident visa in mid-2011. A failure to do so could result in the cancellation of his visa by the Minister.

[87] Mr Marrett submitted that the applicant had left his employment at the end of his shift on 26 June 2012 when he failed to return to work as rostered. The act of taking his work shoes and knife with him on 26 June 2012, as admitted by the applicant in cross-examination and addressed by Ms Harpreet Kaur and Ms Antpreet Kaur in their evidence, evinced an intention by him not to return to work. In these circumstances, it would be reasonable for the respondent to reach the conclusion that the applicant had left his employment and move to reorganise the workplace.

[88] Mr Marrett submitted that the conduct engaged in by the applicant after this (the email sent to Mr Bhullar, the filing of complaints with WorkCover, the FWO and the current application) were done so as to obscure the breach of his visa obligations. He said that the letters supplied by the applicant from his doctors were not evidence that the applicant was currently undergoing treatment.

[89] In relation to the encounter between the applicant and Mr Bhullar’s father on 26 June 2012, Mr Marrett submitted that the applicant’s evidence that he was ‘insulted’ by the comment of Mr Bhullar’s father, could not be believed. The evidence adduced by Mr Bhullar that his father had no intention to offend the applicant and that he apologised immediately was ‘irrefutable’. The matter would have ended with that apology, but for the applicant’s ulterior motive. Mr Marrett also noted that Mr Bhullar was at the restaurant on the night and that the applicant failed to take the obvious course of discussing the incident with him, so that it could be resolved. Mr Marrett speculated that this was because he did not want it to be resolved.

[90] Mr Marrett noted that the applicant alleged that he did not have a fixed roster, and submitted that this is not consistent with the evidence that he signed for a fixed roster on 18 October 2010 and requested a changed roster in January 2011. Nor is it consistent with the first text message of 21 June 2012 (see para [26]) in which he stated that he performed all his preparation according to his schedule and that there was no separate time for preparation.

[91] Mr Marrett submitted that Mr Bhullar had not wanted to dismiss the applicant. However, he was unable to rehire the applicant for health and safety reasons after the applicant made reference to his involvement with criminal gangs in India.

[92] In oral submissions, Mr Marrett referred to s 385 of the Act, and submitted that there was nothing ‘harsh, unjust or unreasonable’ in Mr Bhullar’s conduct. He had not engaged in conduct or a course of conduct that forced the applicant to resign. On his own evidence, the applicant initiated the conversation with Mr Bhullar’s father.

[93] Mr Marrett said that during and after 26 June 2012, and prior to the letter of 6 July 2012, the applicant had had a number of opportunities to discuss his employment with Mr Bhullar and could have picked up the phone to ask Mr Bhullar why that letter was sent. He only asked how to return the keys.

For the applicant

[94] Mr Dircks submitted that the applicant’s evidence was that he had been bullied by Mr Bhullar, had suffered health problems and was required to work unpaid overtime. However, the email of 27 June 2012 evinced no intention of him to leave his employment. Rather, the intention was to take time off related to his mental condition. The applicant had withdrawn his labour due to his treatment, his health and the requirement to work unpaid overtime. Mr Dircks submitted that, historically, the withdrawal of labour for the purpose of strike action had not been found to constitute an abandonment of employment.

[95] Similarly, Mr Dircks submitted that what was said at the meeting on Tuesday 3 July 2012, including whether another meeting was proposed, is disputed. While the applicant denied using the phrase ‘Working at the restaurant is not possible now’, if the Commission were to find that it had been made, it need not necessarily be interpreted as a statement of resignation; the use of the word ‘now’ may be intended to mean that it was not possible for the applicant to return to work at the time the statement was made.

[96] Mr Dircks referred to s 386(1) of the Act and submitted that the facts are consistent with dismissal in the sense of termination at the initiative of the employer. He drew my attention to P. O’Meara v Stanley Works Pty Ltd PR973462, 11 August 2006. He also submitted that the facts of this case were similar to those in Searle v Moly Mines [2008] AIRCFB 1088. Mr Dircks noted that the letter sent by the respondent’s solicitor to the applicant dated 6 July 2012 made no reference to the issues raised by the applicant in his email to the respondent of 27 June 2012, being his illness and the failure of Mr Bhullar to provide him a proper roster. Mr Dircks submitted that it ‘beggared belief’ that if, as said by Mr Bhullar, the applicant had said on 3 July 2012 that his return to work was not possible, this statement would not be referred to in the letter sent on 6 July 2012. It was this letter, which made assertions that the applicant had abandoned his employment, directed him to return the keys and referred to his final pay being collected, which brought the employment to an end.

[97] Mr Dircks submitted in the alternative, that if the Commission were to find that the applicant had abandoned his employment, then it could be said that the treatment of the applicant and the failure of Mr Bhullar to abide by the conditions of employment were sufficient to be considered as having forced the applicant to resign (s 386(1)(b).

[98] Mr Dircks also noted that the Form F3 Response of the employer stated that: ‘By Friday [6 July] of that week the respondent was convinced that the applicant was never returning to his job’ and therefore needed to be replaced. This is inconsistent with the evidence of Mr Bhullar that the applicant had said ‘Working at the restaurant is not possible now.’ There was no clear reason as to why the letter of 6 July 2012 would not be regarded as the instrument that brought the employment to an end.

[99] Mr Dircks put that Mr Bhullar made claims that were simply not credible, including the assertion that the applicant’s nomination as Employee of the Year was made in order to encourage a poorly performing employee and the assertion that the applicant was capable of earning $1500 per week driving taxis. The claim by Mr Bhullar that the applicant ‘meticulously’ planned to have himself dismissed after receiving permanent residence, was without any basis in fact. Accordingly, the respondent should be regarded as a less reliable witness and the evidence of the applicant should be preferred where there is conflict between them.

[100] In oral submissions, Mr Dircks noted the strong similarity of the evidence given by Ms Harpreet Kaur and Ms Antpreet Kaur in relation to what they said to the applicant and what he said to them on 26 June 2012. He also drew attention to discrepancies between the Form F3 Employer’s Response and the submissions put to the Commission by the respondent, including the allegation that the applicant had taken a knife sharpener. There were things put in that Form that could only arise from instructions from the respondent. While this was not a sworn document, whether or not the applicant had said ‘Working in the restaurant is not possible now’ was a crucial piece of evidence on which the Commission was required to make a finding of fact. Accordingly, the credibility of witnesses was a key issue in these proceedings.

[101] Mr Dircks also submitted that if the request by the applicant for a roster was seen as an ultimatum, then this would support his alternative submission that the applicant was forced to resign through the conduct of the respondent.

[102] In a written outline of his closing submissions, Mr Dircks said that he was not aware, at the time of preparing his submissions, of the requirement for the applicant to work for the respondent for two years under the terms of his visa. Moreover, this reinforced his submission that employment would have continued for at least a further year and that compensation for unfair dismissal of 6 months is justified in this case.

CONSIDERATION

Issues to be determined by the Commission

[103] As in so many cases such as this, direct language, either verbal or written, in the form of words like ‘sacked’, ‘dismissed’, ‘fired’, ‘let go’ or ‘terminated’ were not used by the employer. Likewise, words such as ‘resign’, ‘not coming back’, ‘stick your job’, or ‘I’m leaving’ were not uttered by the employee. It is for this reason that the legislature and the authorities of this Commission and its predecessors have emphasised that it is the course of conduct of an employer which must be objectively examined, to establish an intention of the employer that he or she no longer wishes to be bound to the employment contract or that the employee was ‘forced’ to resign. Other permutations might arise such as a resignation given in the ‘heat of the moment’ which on sober reflection is very much regretted.

[104] The opposing positions are these. The applicant claims that the letter he received from Mr Bhullar’s solicitor dated 6 July 2012 (see para [3]) constituted a letter of dismissal. Alternatively, he submits that the actions of the employer, including bullying, his refusal to pay him overtime and his failure to provide him with a roster, ‘forced’ him to resign. Mr Bhullar maintains that he never sought the applicant’s dismissal and that he abandoned his employment after the incident in the restaurant, involving his father, on 26 June 2012.

[105] Considering the vast gulf between the applicant’s evidence and that of Mr Bhullar, this case is ordinarily one which requires the Commission to prefer one party’s version of events over another. I will come back to this later. While the history of the applicant’s employment was controversial and may be of interest to other Government agencies, it seems that essentially I am required to determine whether the applicant abandoned his employment after 26 June 2012 or was dismissed by Mr Bhullar. Events leading up to that day and subsequently are, in my opinion, critical to answering that question. Of course, if I find that the applicant did abandon his employment, it would be unnecessary to consider whether the applicant was unfairly dismissed and the application would be dismissed. This leads me to discuss the relevant statutory provisions applicable to this matter.

Statutory context

[106] s 396 of the Act requires the Commission to determine jurisdictional prerequisites before considering the merits of an unfair dismissal application. The section is expressed as follows:

396 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.

[107] To satisfy subsection (b) above, a person can only be protected from unfair dismissal if he or she has actually been dismissed. This is one of the mandatory requirements under s 385(a) of the Act which is as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[108] The conjunction ‘and’ linking the four subclauses above means that each of the criteria are mandatory and must be met, to the satisfaction of the Commission, for the person to be unfairly dismissed. The first test - that the person has been dismissed - emanates from the meaning of the word in s 386(1), which is as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(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.

[109] As to the other matters in s 385 of the Act, the applicant claims his dismissal was ‘harsh, unjust and unreasonable’. No submissions were put as to whether the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code, although it appeared likely that Mr Bhullar’s restaurant was a small business, as defined (s 23). Further, I note that this case is not one involving genuine redundancy (s 389). At this juncture, I refer to a number of authorities relevant to a termination at the initiative of the employer.

[110] The definition of ‘termination at the employer’s initiative’ was considered by a Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 262 IR 200 at 205. This case has often been referred to by industrial tribunals, in a line of consistent authority since 1995, and I refer to the following extract:

‘Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression “termination of employment”: Siagian v Sanel (1994) 1 IRCR1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process.

...

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour at p 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:

“... a termination of employment at the instance [of] the employer rather than of the employee.”

And at p 5:

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions that constituted a termination of the employment.”’

[111] Three decisions of the Australian Industrial Relations Commission (AIRC) are also apposite to this matter. They deal with a forced resignation in the context of a constructive dismissal. 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].’

[112] 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.’

[113] In P. O’Meara v Stanley Works Pty Ltd (Print PR973462, 11 August 2006), a Full Bench of the AIRC said:

‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’

[114] A Full Bench of Fair Work Australia, in Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 T/A Commonwealth Financial Planning [2011] FWAFB 4038, said at para [13]:

‘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 evidenced an intention to no longer be bound by the contract.’

[115] Recently, in a decision under the General Protections provisions of the Act, Ramos v Good Samaritan Industries [2013] FCA 30, Barker J of the Federal Court of Australia, dealt with an appeal from a Federal Magistrate, in which the employee claimed, inter alia, that he had been ‘forced’ to resign due to intimidation, humiliation and other threatening conduct of the employer. In dismissing the employee’s appeal, His Honour, in circumstances reminiscent of those in this case, said at paras [136]-[137]:

‘Ultimately it is claimed that the appellant felt, in light of his treatment since he made his complaint in early April 2010, that he was being forced to quit. But his subjective assessment in that regard cannot be the benchmark for the determination of whether he was constructively dismissed. It is by no means clear that he had no other option but to quit his employment at that point. He could well have returned to work and continued to negotiate and deal with his employment situation through discussions with Mr Knowles. Indeed, the correspondence shows that Mr Knowles was expecting the appellant to resume work and to engage in such discussions with him.

In all the circumstances, for the reasons given by the Federal Magistrate, it cannot reasonably be concluded that the appellant was constructively dismissed from his employment as store manager at the Dianella store and it has not been shown that his Honour erred in coming to that conclusion.’

FINDINGS

[116] I have come to the view - albeit with some hesitation - that the applicant effectively abandoned his employment, when he did not return to work after his shift on the night of 26 June 2012. This finding is made for the following reasons:

1. If Mr Bhullar was setting the applicant up to force him to resign, it seems highly unlikely that he would suggest they meet on 3 July 2012, and when they did, on the applicant’s own evidence, Mr Bhullar not only said he was doing a good job, but proposed they go into partnership. Moreover, Mr Bhullar suggested they meet again the next day, but the applicant claimed mental stress. Mr Bhullar proposed they meet again on 10 July 2012 (the letter of 6 July interposed).

2. The applicant made no response to challenge Mr Marrett’s 6 July letter asserting he had abandoned his employment. Considering the applicant’s earlier proclivity for defending himself, this is a curious non-reaction. His only response was to make arrangements to hand back the restaurant keys in two emails on 8 and 9 July.

3. Mr Bhullar gave the following uncontested evidence:

‘I met the applicant at around noon on 9 July 2012 at the Albury Restaurant. The applicant returned the keys to the premises to me and I handed him a cheque for the sum of $2,076.75. He appeared to be happy to receive the cheque. I said to him words to effect: “Good Luck” and we shook hands. He said something pleasant to me which I cannot recall. He then turned and left the restaurant.’

It is difficult for me to reconcile this evidence with an employee who claims he was dismissed without warning three days earlier and then seemingly takes no issue at all with Mr Marrett’s assertion that he had abandoned his employment.

4. Although he denied it, I accept that the applicant said when he met Mr Bhullar on 3 July 2012, ‘I cannot work for the restaurant, now.’ Mr Dircks speculated that the rider ‘now’ meant that he intended to convey, ‘not just now, due to my mental state’. The expression did not constitute words of resignation. I concede that this is one way of interpreting the words. However, given the other surrounding circumstances, I conclude that he meant that after all he claimed to have suffered at the hands of Mr Bhullar, he just couldn’t work for him now, or into the future. This was an abandonment of employment; but was it justified by Mr Bhullar’s alleged conduct?

Was the applicant forced to resign?

[117] Comment needs to be made of the applicant’s email of 27 June 2012, which it is said constituted a ‘forced’ resignation. The applicant made the following demands and complaints that:

a) he felt humiliated and hurt by Mr Singh’s comment the night before;

b) he be given a fixed roster and timesheets;

c) he was working 55-60 hours per week, without overtime;

d) he would not work longer than a 38 hour week;

e) Mr Bhullar instigated three incidents seeking to ‘force’ his resignation;

f) He was suffering from anxiety and depression and that he was not returning to work because of mental illness.

[118] Firstly, in respect to the incident with Mr Bhullar’s father, Mr Singh, I find that the applicant completely overreacted to Mr Singh’s comment, ‘Here is your father, ask him.’ It is difficult to imagine that such a comment, by a sick, 74 year old man (unless I am missing some significant cultural sensitivity) could engender feelings of such anger that he was ‘crying from the inside and totally shattered.’ Moreover, Mr Singh apologised, but the applicant was not prepared to accept his apology as genuine. In addition, the applicant recalled and related another seemingly insignificant incident, which occurred over 18 months earlier involving Mr Bhullar’s father.

[119] Secondly, from my observations of the applicant in the witness box and from some of his communications with Mr Bhullar, he is no ‘shrinking violet’. There was uncontested evidence that he had left two jobs with other restaurants in Melbourne because they refused to sponsor his visa. In the email of 27 June 2012, he refers to his rights and the duties of the employer. He makes demands on Mr Bhullar. Given this backdrop, it seems incredible to me that he would not have taken some earlier action or have made a complaint about his treatment, particularly after he had secured his permanent residency on 27 May 2011, some twelve months earlier.

[120] Thirdly, there was no independent evidence that Mr Bhullar had bullied, abused and harassed the applicant. I do not accept Mr Mohan’s evidence as reliable. I consider he and the applicant had colluded in wanting to ‘get back’ at Mr Bhullar. Workers’ compensation claims by both of them were lodged shortly after 6 July 2012 and rejected. There was no evidence these claims are being pursued. Moreover, the medical evidence (such as it was) postdated the applicant’s employment, although I accept that the applicant had consulted one of the doctors in February 2012 and had regular counselling sessions after that. The applicant himself said that his treatment at work had only resulted in a ‘sleep disorder’. There was no evidence that the applicant was on any medication or had taken time off before 26 June 2012, due to the stress he was under from the alleged bullying and abuse. There was no subsequent medical certificate after 26 June 2012 either. I am fortified in my view that the applicant’s claims of bullying and abuse were false or overblown for the following reasons:

a) I have some doubts that Mr Bhullar would use the type of offensive language alleged by the applicant such as ‘sister fucker’ in a workplace with women employees, including female cooks in the kitchen. It is likely that, if such language was being used frequently or even occasionally, then someone, possibly including customers, would have complained about it.

b) The applicant claimed that when Mr Bhullar did not send him a text message about the buffet service on 31 December 2011, this was intended to isolate him and was a form of indirect bullying. Apart from the fact the applicant did not work on the buffet, it is a very long bow to draw, to suggest this incident constituted indirect bullying.

c) The commendation of Mr Bhullar by the local Disability Employment Provider dated 4 November 2011, would appear to be totally inconsistent with an employer who abuses and bullies his staff. I accept this evidence as independent support for Mr Bhullar’s evidence that the allegations of the applicant were largely unfounded.

d) The only written evidence of a communication between Mr Bhullar and the applicant is his text message sent to him on 20 June 2012 (see para [26]). This is not an example of an employer who is abusive and bullying; although I accept that this is but a very small piece of evidence.

[121] I am unable to conclude that Mr Bhullar was abusive and used foul language. In any event, the incidents of which the applicant now complains were hardly of such significance as to amount to intimidation or harassment in the ordinary sense. This is particularly so in respect to the final incident involving Mr Bhullar’s father.

[122] While there may well be a prima facie case of underpayment of the applicant, and indeed other employees engaged by Mr Bhullar at his restaurants, it is not the role of this Commission to make findings in that regard. However, some comments about this allegation are warranted. Of course, it is notorious that the hospitality industry, particularly restaurants which engage temporary visa holders, are frequently the focus of the FWO’s investigations of underpayment claims.

[123] I accept unreservedly that some employees who are on visas requiring them to be bound to a sponsoring employer will do almost anything, including breaking the law at the direction of the employer, for fear of losing their sponsoring employer. I note, however, that there is nothing to prevent anonymous complaints to the appropriate authorities.

[124] However, if you shine a light into a dark corner, you might find more than what you are looking for. I say that because it is not uncommon in situations when the bondage of sponsored employment is broken or the employee otherwise leaves the employer’s employ, that a disgruntled employee will enthusiastically launch claims of exploitation and abuse, despite months, or even years, of willing acceptance of such conduct. Just as there are obligationas on employers, there are also obligations on employees not to accept ‘cash in hand’ or other tax avoidance offers by employers. It seems tolerably clear to me that the applicant willingly accepted his employment conditions and derived a financial benefit from doing so.

Other comments on the evidence

[125] Earlier I found that the applicant abandoned his employment. I made this finding, not only because the evidence was hopelessly conflicted, but also because aspects of both of the parties’ evidence were, frankly, not credible. This evidence includes the following:

a) Mr Bhullar said that he nominated the applicant for an ‘Employee of the Year’ award in 2011 as a means of improving his performance and encouraging him. Such an explanation was simply not credible and was the only way Mr Bhullar could defend his other claims of the applicant’s poor performance. I know of no instance of an employer rewarding a poorly performing employee by nominating him or her for an ‘Employee of the Year’ award. It is just nonsense. Moreover, Mr Bhullar conceded that the other three nominees had not been nominated on such a spurious basis.

b) Mr Bhullar tendered numerous copies of time and wages records, the vast majority of which were not signed by the applicant. These records prove nothing. They certainly do not prove the hours that the applicant worked, but merely record or acknowledge the amount of pay the applicant was said to have received. Moreover, those records which have been acknowledged by the applicant, do not record any tax or any other deductions. They are all woefully incomplete. Regrettably, I have difficulty in accepting that there were proper time and wages records kept and maintained by Mr Bhullar at the relevant time.

c) The applicant tendered pages of handwritten entries, claiming to be evidence of his actual hours of work from 1 August 2011 - 26 June 2012. Curiously, they were recorded in a 2007 diary. Even more strangely, in cross examination, without being challenged as to their authenticity, the applicant said a handwriting expert would prove it was his handwriting! I make these observations: Firstly, why would a witness raise a ‘handwriting expert’, without prompting. Secondly, the issue is not whose handwriting it was, but to my untrained eye, it appears that the entries were all recorded at the same time. There is no difference in pen, pen strokes or pen pressure for all of the entries. It is not believable that hundreds of entries, over such a long period of time, would look so startlingly similar.

d) Mr Bhullar claimed that in the meeting with the applicant on 3 July 2012, he referred to being involved with gangs in India and having wound marks on his body. The applicant claimed that Mr Bhullar told him on 2 January 2011 that his father had killed many people in the war. Such extraordinary and inexplicable comments are ones which I find difficult to accept as having been said by either of them.

[126] It is patently clear that the evidence in this matter was hopelessly conflicted. Nevertheless, both the applicant and Mr Bhullar produced witnesses to support their respective cases. On the one hand, I have serious doubts as to the objectivity of Mr Mohan. In my opinion, he was acting in concert with the applicant to make complaints to various agencies about their employment. While Mr Mohan’s testimony was corroborative of the applicant’s evidence, I have suspicions that they had colluded as to what evidence they would give to the Commission. My suspicions were aroused by observing the applicant when Mr Mohan was in the witness box. On one occasion during Mr Mohan’s testimony, he interjected from the bar table to correct Mr Mohan’s answer.

[127] In addition, Mr Mohan had two periods of employment with Mr Bhullar; firstly as a casual, then he worked at another Indian restaurant (the Indian Chimney Restaurant), before coming back to work for Mr Bhullar as a permanent. To explain why he would return to an abusive and bullying workplace, Mr Mohan claimed that the abuse, including physical abuse, only occurred after he became permanent. Despite Mr Mohan’s claims that this abuse was witnessed by other employees in addition to the applicant, no other corroborative evidence was advanced to support his allegations. Mr Bhullar strenuously denied Mr Mohan’s allegations. I have some difficulty grappling with the notion that Mr Bhullar became abusive and bullied him only after he became permanent; as if an employer with such tendencies could ‘turn off and on’ such behaviour, like a tap.

[128] On the other hand, Mr Bhullar’s supporting witnesses, Ms Harpreet Kaur and Ms Antpreet Kaur, are current employees of Mr Bhullar and have an obvious interest in maintaining their employment and supporting their employer. They both gave identical evidence of what they saw on the night of 26 June and had asked the applicant the same question: ‘Are you going on holidays?’ and he replied with the same answer. Moreover, their lack of understanding and confusing oral evidence sits rather uncomfortably with the well expressed and clear language used in their statements. Given my doubts, I attribute little weight to their evidence.

[129] For all the aforementioned reasons, I find that the applicant abandoned his employment after 26 June 2012. Consequently, there was no dismissal of the applicant by the employer and the Commission has no jurisdiction to determine the merits of this application. It must be dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks, Solicitor, for the applicant

Mr Z Marrett, Solicitor, for the respondent

Hearing details:

2012.

Wodonga:

21 November

Printed by authority of the Commonwealth Government Printer

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