Mr James Willis v Be Imaging Pty Ltd T/A Iris Imaging

In the matter of Mr James Willis v BE Imaging Pty Ltd T/A Iris Imaging, Deputy President Lake was required to determine whether the Applicant's employment was terminated at the initiative of the employer, within the meaning of s.386 of the Fair Work Act 2009. The Respondent raised a jurisdictional objection on the basis that the Applicant had voluntarily resigned from his employment and was not dismissed. The Deputy President found that the Applicant did not resign and that the jurisdictional objection should be dismissed.

The Deputy President considered the evidence and submissions from both parties, including the CCTV footage and audio recordings of the interaction between the Applicant and the Respondent on 31 August 2020. The Deputy President found that while the Applicant's conduct and correspondence over the weekend may have been precautionary measures, his arrival at the workplace on Monday morning and the audio recording were carefully constructed. The Deputy President was particularly swayed by the audio recording, in which Dr Emechete became angry and said, "I will beat you" and "I will kill you". Following these comments, the Deputy President was prepared to accept that the Applicant had no effective or real choice but to resign. In other words, the termination was brought about by the conduct of the Respondent.

Based on the evidence before him, the Deputy President found that the Applicant did not resign from his employment and that the jurisdictional objection should be dismissed. The Deputy President will issue directions with respect to the merits of this application in due course.