Nandalcumaran Krishnakanth v Saai Bose Pty Ltd

[2010] FWA 4678

[2010] FWA 4678

FAIR WORK AUSTRALIA

DECISION

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

Nandalcumaran Krishnakanth
v
Saai Bose Pty Ltd
(U2009/13688)

DEPUTY PRESIDENT SAMS SYDNEY, 15 JULY 2010

Application for unfair dismissal remedy.

[1] This decision concerns an unfair dismissal application, lodged by Mr Nandalcumaran Krishnakanth (‘the applicant’), on 11 November 2009, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The applicant seeks an unfair dismissal remedy arising from his alleged dismissal on 30 October 2009, by Saai Bose Pty Ltd t/as Tribeni Indian Restaurant and Kashi Indian Restaurant (‘the respondent’), where he was employed as a chef. The respondent maintains that the applicant was not dismissed from his employment but rather, he had resigned and consequently, there is no jurisdiction for Fair Work Australia (FWA) to entertain this application.

[2] Before turning to the substance of the question before FWA, I refer to the relevant provisions of the Act, which, assuming the applicant’s argument is accepted, ground this application. Section 386 of the Act defines the meaning of ‘dismissal’ as:

(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.

[3] Thus, for FWA to have jurisdiction to consider and deal with an application for a remedy from unfair dismissal under Part 3-2 of the Act, the termination of employment must be at the initiative of the employer or, alternatively, the employee was forced to resign. Shortly stated, the applicant maintains that his employment was terminated at the initiative of the respondent by letter dated 30 October 2009. That letter was in the following terms:

Dear Mr Krishnakanth (Sam)

I refer to our conversation dated 13th October 2009, when you stated that you wish to resign and we agreed on one month’s notice, till the 12th November 2009.

Since then your conduct has been very poor and with little interest towards your duties. You have not reported to work twice without notifying us. On another occasion you turned up three hours late without any information. On the 28th November you informed very late that you are unable to attend duties. Your conduct towards us and others are bad. (sic)

Most importantly, you are not fulfilling your tasks competently despite us asking you many times to do them properly. This is having a detrimental flow on effect on other staff as well as our customers. This is affecting our business and we cannot allow this to occur.

You have demonstrated an unacceptable pattern of behaviour. It shows that you have little interest left in this job, which will eventually affect our business. Thus we can no longer continue your employment at Kashi Indian Restaurant.

We will inform the department of Immigration as well. This decision is effective immediately and your dues will be paid. We wish you all the best for your future.

[4] The applicant refused to accept this letter. He refuted its contents and said that on the occasions he was late for work his car had broken down and he had later needed time to pick it up. He denied not fulfilling his tasks competently and said his performance had never been previously questioned by the respondent. On the other hand, the respondent insists, that although it is plain the applicant was terminated during his alleged notice period, the applicant had effectively resigned his employment in a conversation with the respondent’s owner and his wife (and overheard by another employee) on 13 October 2009, and given one month’s notice. In addition, the applicant had informed others that he had done so.

[5] The facts and circumstances of this case have raised some interesting questions of which the primary one is - did the applicant resign on 13 October 2009?

[6] At this juncture, I note that the applicant does not contend that he was forced to resign (s 386(b)); rather, that he had never resigned, but had been dismissed in the letter referred to above. Subsidiary to the primary question is, if it is found that the applicant did give notice of his resignation on 13 October 2009, can he still be unfairly dismissed during the four week notice period? A number of other associated issues emerged during the evidence in this matter which concerned the employment by the respondent of s 457 visa holders and his responsibilities as a sponsoring employer for the purposes of the immigration laws.

[7] Complicating the matter (although ultimately not making any difference to the outcome), was that since I reserved judgement in the matter, the respondent has gone into (voluntary) administration with the administrator subsequently advising that the applicant (and presumably other existing employees), are owed certain statutory and/or Award entitlements.

[8] To add to the difficulties, was that the respondent was unrepresented during the proceedings and the disposition of the primary question ultimately turns on whose diametrically opposed evidence FWA is to believe. In addition, the applicant has a number of other claims against the respondent in respect to underpayments and workers’ compensation. These matters are not necessarily relevant to this case and I shall not refer to them in any detail.

BACKGROUND

[9] Notwithstanding the opposing positions of the parties, it seems to me that the following exposition is an agreed background to the case. The applicant came to Australia from India in October 2006 and commenced work at the Amaroo Seafood Restaurant in December 2006. In March 2007, the restaurant was bought by the Bose Family Trust and continued to trade normally. On 4 June 2007, the applicant was offered, and accepted, full time employment as a cook, conditional upon approval by the Department of Immigration and Citizenship (DIAC). His application for a 457 visa was approved by DIAC on 4 December 2007, and is valid until 4 December 2011. The Bose Family Trust was named as his business sponsor. In October 2007, the restaurant changed its name to Kashi Indian Restaurant. It was still operated by the Bose Family Trust and there was no change of management or staff. The owner of the restaurant, Mr Arun Bose, at the request of the applicant, provided him with a glowing reference on 29 September 2009, in order for his skills to be recognised by DIAC, which is a trigger to apply for permanent residency in Australia.

[10] Of course, the critical meeting, for the purposes of this decision, was the one which occurred on 13 October 2009 at the Tribeni Restaurant around 2:30pm. I shall return to the conflicting evidence about this meeting later.

[11] On 19 October 2009, Mr Bose advised DIAC that the applicant had resigned his position, with one month’s notice on 12 October 2009, and that his sponsorship of him was cancelled.

[12] It appears that sometime during 2009 (the applicant said that as a result of him filing this unfair dismissal claim) the restaurant’s ownership was registered as being Saai Bose Pty Ltd t/as Tribeni Indian Restaurant and Kashi Indian Restaurant. The applicant worked at both restaurants.

The Tuesday, 13 October 2009 Meeting

[13] In the applicant’s affidavit, he deposed that at around 2:30pm he approached Mr Bose while he was working at the Tribeni Restaurant. He explained to him he was getting married in India in January 2010 and that he would like payment for his leave and the extra hours he had worked without pay. He said Mr Bose told him if he was unhappy with his conditions he could resign. He stated that he ‘would not resign’ and needed to talk to a lawyer. During these proceedings he insisted that he had never agreed to resign.

[14] In oral evidence, the applicant said that another chef, Punkaj, was present in the kitchen at the time, but was unlikely to have heard the conversation. Mr Bose’s wife was also present. The applicant said that when he asked for his entitlements (eight weeks leave and eight weeks pay), Mr Bose responded by asking him for a resignation letter if he did not like the job. After this meeting, the applicant claimed Mr Bose was constantly bullying him by being very rude and picking up on so called mistakes with his cooking.

[15] The applicant rejected a statement of Ms Gayandeep Kaus, a waitress at Tribeni Restaurant, that she was present on 13 October 2009. He believed she was on a student visa and worked 50 hours a week; but never on a Tuesday.

[16] In cross-examination, the applicant denied he had another job at another restaurant and, in fact, had been working there at the time. The applicant denied working there on a trial before 30 October 2009. The applicant said he did not get the job at the other restaurant because someone from the respondent had said something bad about him and they would not give him a job. He also denied contacting the restaurant’s other employees, late at night, to threaten them about coming to court. He explained that he was contacting the witnesses to find out how he could serve summonses on them to attend FWA.

[17] In cross-examination, Mr Bose insisted that Ms Kaus was present on the day and had worked every Tuesday, lunch and dinner, because this was his day off. On that day, he and his wife had attended the restaurant to check how everything was going.

[18] Mr Bose said that despite the fact the applicant was not working properly after giving his notice, and customers had started to complain, he had wanted to work together with him until his resignation took effect.

[19] In re-examination, Mr Bose said that before 13 October 2009, everything was fine with the applicant and he actually had bigger plans for him. Mr Bose said that other employees had told him the applicant had another job at a restaurant in Harris Park (during the notice period). Mr Bose claimed the applicant had said he was getting more pay and that he wanted to leave.

[20] Mr Bose deposed that the meeting of 13 October 2009, was a regular meeting to discuss the menu and changes and improvements which might be made. He said the applicant wanted more money to stay, otherwise he had another offer at Harris Park. Mr Bose asked him for a letter of resignation, but he said his Solicitor would provide a letter. He then started turning up late for work or not coming in at all. As this was a busier period of year, Mr Bose said he could not afford to lose him as he had no one else to take over.

[21] Mr Jagdeep Singh gave evidence under summons. He worked as a volunteer for four days at Tribeni Restaurant having commenced in January 2009. Mr Singh said he and the applicant were friends and had a good relationship. They had worked together since January 2009. Mr Singh deposed that after the applicant resigned, his standard of cooking dropped drastically and customers had complained to the Management. He had not personally received complaints, but said the food the applicant prepared had no taste or flavour.

[22] Mr Singh said that he was at home on Tuesday 13 October 2009, when the applicant rang him and told him he had resigned. When he told him he had resigned, he also said he had another job with good money. He remembered this date because he was not at College on that day and he was having a birthday party for a friend at his home.

[23] Mr Singh insisted that nobody had told him of the date and that he had written his statement himself. He had obtained the proforma statutory declaration from a newsagent and had it witnessed by a Justice of the Peace. He agreed that Mr Bose had told him that the applicant was taking him to court and he just wrote down the truth of what he knew.

[24] Ms Gayandeep Kaus gave evidence that she worked about 20 hours a week as a shift supervisor including on Tuesdays, as Mr and Mrs Bose had Tuesdays off. She added that the applicant regularly worked on Tuesdays with her. She had attended College at Bankstown on Mondays and Wednesdays doing a management course.

[25] Ms Kaus said that the staff would have regular fortnightly meetings to discuss menu and beverage changes. Ms Kaus deposed that she was at the Tribeni Restaurant on 13 October 2009, when Mr and Mrs Bose came in for a quick meeting to discuss the menu and the busy season coming up. Mr and Mrs Bose, the applicant and herself were sitting in the restaurant and Punjak was in the kitchen. The meeting lasted around 15 minutes. It was not a busy day. Tuesdays usually had two to four tables for lunch and the same for dinner. Usually, between the lunch and dinner shifts, she would stay in the restaurant or go shopping.

[26] Ms Kaus explained that each employee has an individual ID which is logged into the cash register and is recorded when an individual staff member conducts a transaction. In re-examination, Ms Kaus identified a number of original receipts which disclosed her name as conducting the meal transactions on 13 October 2009.

[27] Ms Kaus said she had made a note in her work diary of the day the applicant gave his resignation, because ‘it was a major thing’. The applicant had asked for a salary increase and when Mr Bose said he would discuss it in the following January, he had said that he had another good opportunity and wanted to leave his job. She said they were shocked. Ms Kaus said she did not know if the applicant went to another job. However, she had heard that the applicant had been working at a restaurant in Harris Park known as ‘Spice of Life’.

[28] Ms Kaus said no one had asked her to write her statement. However, she knew the applicant was creating trouble and she wanted to help, because she knew he had resigned.

[29] Ms Kaus said that the applicant was not immediately replaced and Mr Bose had to come in and do some of the cooking.

Other Evidence

[30] The applicant said that he is still owed annual leave and overtime payments. He said that Mr Bose withheld his holiday pay of around six weeks when he went to India in 2008.

[31] When filling in the time sheets, the applicant said that Mr Bose would give him a blank form, every three months, and ask him to sign the entries with different pens. He would sometimes have to wait weeks to be paid. He did not question this, because of his visa and he was concerned that Mr Bose owed him money.

[32] The applicant said that he worked for the respondent for around 72 to 74 hours a week. He now cannot work until he secures another sponsor (which he now has). He had been borrowing money from his sister.

[33] Mr Bose said that when the matter came on for conciliation, the applicant had agreed to settle his claim for three weeks pay. He then came back with five weeks. He had agreed and the applicant then came back with eight weeks and a good reference.

[34] Mr Bose said employees would sign for their pay each week. He queried why anyone would just sign a blank paper.

[35] Mr Bose said that Mr Singh had told him that he had received a phone call around midnight from someone saying they were from ‘Immigration’ and wanting to know how many hours he worked, what sort of visa he had and whether he was a witness in this case. After another employee witness was also phoned late at night, Mr Bose complained to FWA of intimidation of his witnesses.

[36] In further cross-examination, Mr Bose said that he did not realise he had to contact Immigration as the applicant’s sponsor when the Company’s name changed.

[37] Mr Singh said he worked 20 hours a week from January to November 2009. He said that prior to October 2009 he was working as a volunteer and was not paid. He lived on money sent from his father. Mr Bose had given him a reference after 900 hours of work. He denied paying Mr Bose for the reference. He now works 40 hours a week for around $15 an hour and is mostly paid in cash. He was not aware that the Award rate for a Casual Grade 1 Kitchenhand is about $20 an hour.

[38] Mr Singh firstly denied telling the applicant that Mr Bose owed him $9,000 and then said he did tell him that, but it was a lie. He denied telling the applicant he had signed a statement (for the respondent) because he was worried about the $9,000 owed to him. He also denied telling the applicant he had to pay Mr Bose for his reference. In close questioning, Mr Singh did not know what he was being paid or if it was below the Award rate. He believed he was paid more on busier days (the weekends). He said that he received a payslip every week, mostly on a Wednesday, which indicated how many hours he had worked and how much he was paid.

[39] The applicant was recalled to give specific evidence about his conversation with Mr Singh (see preceding paragraph). The applicant agreed that he had rung Mr Singh to ask him why he was giving evidence against him. Mr Singh had replied ‘I’m still working there and he owes me $9,000 and until I get that - I wait for that’.

[40] The applicant said it was a common practice for people to pay for their references and Mr Bose had actually asked him for $4,000. However, he had refused to pay. He believed the respondent’s other witness, Ms Kaus, had paid $8,000 for her reference because she had told him so when they were chatting one day at Westfield, Bankstown. The applicant said that Mr Bose ‘squeezed’ all the student Indian staff, because they are desperate to get permanent residency. In clarification, the applicant said that the students worked voluntarily for around 40 hours a week, for around a year while doing a course as they need 900 hours voluntary experience. Mr Bose would say ‘pay me $1,300 and I’ll give you the certificate that you worked as a chef and performed certain duties’. This would happen even if they had not worked for the restaurant.

[41] In cross-examination, the applicant said that Mr Bose had asked him for the money in 2008, but he did not complain about it at the time or about the others, because they might be deported. He then said that Mr Bose had asked him for $12,000. In re-examination, he said this amount was for his 457 visa when he changed from Amaroo to Bose Family Trust and in addition to the $4,000 he had asked for his trade certificate. Mr Bose had then deducted $400 a week from his salary for a year.

[42] Ms Kaus said her Trade Recognition Australia (TRA) assessment was as a cook. She had worked at the front desk and in the kitchen to learn the cooking. In October 2009, she was working as a shift supervisor and was paid $14.20 an hour nett. She was unsure of her classification and rate of pay under the Award. However, a copy of the Award was in the restaurant kitchen. When she was working from July 2009, she was paid $280 nett for 20 hours worked. Prior to that, she worked as a volunteer. She denied paying for her TRA certificate.

[43] When Ms Kaus began working 40 hours, she worked Fridays, Saturdays and Tuesdays. On 13 October 2009, she had worked maybe nine or 10 hours, starting at 11:00am. She did not know the Award rate for working on a Saturday. She said she signed for her pay every week either on a Tuesday or the next shift after the Wednesday (when she was at College). She did not know if her salary increased when the Award rate was increased. She now works full time, part time with the respondent and part time with KFC.

[44] Mr Kiley, Solicitor for the applicant, sought to call a registered migration agent, Ms Bronwyn Markey. The respondent did not object to her giving oral evidence.

[45] Ms Markey explained that, until recently, an overseas student could come and study in Australia for two years, receive a trade or approved qualification in a certain occupation and then apply for permanent residency. This usually requires a TRA certificate, through one of four different pathways. One way requires 900 hours of actual work which is certified by the sponsoring employer. These certificates require details such as the dates the employee actually worked and a detailed description of the tasks undertaken. Mr Bose’s reference for the applicant fulfilled the usual requirements. She said that, unfortunately, the regulations permit voluntary work and it is well known in the industry that rorts occur because people are desperate to get their references. She said that there have been recent moves to bring the Migration Act 1958 and the Fair Work Act closer together. Ms Markey said that, generally, the Department does not like voluntary work. However, because of the ‘grey areas’ between the two Acts, information is shared between departments and the Australian Taxation Office (ATO). She believed that there is nothing in the Migration Act which exempts a student under a visa from the provisions of the Fair Work Act.

[46] Ms Markey gave evidence of an experience last year in Victoria where the TRA stopped processing skills assessments in the restaurant industry because of fraudulent work statements. Ms Markey could not say definitively if it was illegal to ask for payments for a TRA assessment, but she believed it was a common practice. Moreover, as a part of the industry’s code of conduct, migration agents are required to report such conduct.

SUBMISSIONS

For the applicant

[47] Mr Kiley put that, unlike an ordinary employee, it made no sense why the applicant would resign, given that he was dependent on the sponsoring employer to retain his 457 visa. As he was dependent on Mr Bose, he had also signed blank documents. When he was intending to get married, he gathered the courage to ask for more money and his holiday pay. It was Mr Bose who said he could resign or leave in four weeks.

[48] Mr Kiley said that the respondent’s witnesses were beholden to their employer for their ongoing employment and that questions as to the legality of their employment throws their testimony into doubt. Mr Kiley said that the transaction receipt records for 13 October 2009, only show a machine number, which anyone could have imputed. Mr Kiley said he had instructions that the applicant had pressed ‘3’ (Ms Kaus’ number) on that day because the restaurant was busy and as a chef he did not have an ID number.

[49] Mr Kiley submitted it was curious that the respondent’s witnesses could easily remember Tuesday 13 October, but could not remember details of what happened on other days or what they were getting paid. The respondent had said that the menus changed regularly, but Ms Kaus said it would be every two years. He asked why they would be discussing this on 13 October 2009. Mr Kiley said that the applicant did not resign, he was sacked for asking for ‘what he was worth and what he was due’. Mr Kiley said the applicant sought six months pay at the Award rate of pay as compensation for his unfair dismissal.

For the respondent

[50] Mr Ferizis (assisting Mr Bose) said the issues of blank documents and alleged underpayments were irrelevant. The respondent had brought clear evidence from a witness to the conversation on 13 October 2009, that the applicant had resigned on that day. The respondent had not wanted him to leave because, as the only chef at the Tribeni Restaurant, he was critical. Mr Bose had to drop all his other duties to work in the kitchen. Trying to find a chef at that time of year was very difficult. The applicant’s resignation had caused enormous disruption.

In reply

[51] Mr Kiley observed that if the applicant was so critical to the business why did the respondent sack him two weeks later?

CONSIDERATION

[52] Ultimately, as I said earlier, the applicant’s case will stand or fall on the circumstances surrounding the meeting on 13 October 2009. That there was a meeting between the applicant and the respondent on that day cannot be doubted. What is in contest however, and what FWA will be required to determine, is firstly, who was at the meeting and secondly, what was said by the attendees?

[53] On the one hand, there are a number of factors which might be said to weigh in favour of the applicant’s emphatic denials that he did not resign during this meeting. These were:

[54] Firstly, it would seemingly not make any sense for a 457 visa holder, dependent on a sponsoring employer, to resign his employment; unless, of course, he already had alternative employment and an alternative sponsor. It would also, generally, make no sense for any employee, with financial commitments, to surrender his/her employment without any other job to go to.

[55] Secondly, it seems a reasonable proposition, given the applicant’s forthcoming marriage in India, that he would be inquiring as to his holiday pay and outstanding entitlements.

[56] Thirdly, the evidence revealed allegations of a number of workplace management practices which raise serious questions as to whether employees were underpaid, whether time and wages records were appropriately maintained and whether there were breaches of the Migration Act and/or whether Mr Bose engaged in dubious employment arrangements involving student visa holders. I was deeply troubled by this evidence and I shall make further comment about it later.

[57] Fourthly, I find the evidence of Mr Singh to be most unhelpful. He was evasive and uncooperative and much of his evidence was, at best, confusing and contradictory. One example serves to demonstrate the point. At first he denied telling the applicant that Mr Bose owed him $9,000 and shortly after said he did tell him, but it was a lie. I do not accept that he did not understand what was being put to him; rather, I believe he was nervous and unresponsive because he was not sure if his answers helped the respondent or not. In any event, I would discount his evidence as corroborating Mr Bose’s version of events, when he claimed the applicant had told him he had resigned.

[58] Fifthly, I do not accept the evidence of Mr Bose or Mr Singh (which he did not witness firsthand), that the applicant’s performance of his duties and his standard of cooking deteriorated markedly after 13 October 2009. On one view, this criticism is really not the point. Nevertheless, it is likely that the applicant’s dedication and commitment to his work would not have been at its highest if, in fact, he had given notice of his resignation.

[59] Sixthly, the respondent did not call Mrs Bose to give evidence, notwithstanding, it was agreed she was sitting in the meeting with her husband and the applicant.

[60] On the other hand, there are a number of alternative considerations which point in favour of the respondent’s contention that the applicant voluntarily resigned at the meeting and gave the respondent four weeks’ notice. These were:

[61] Firstly, even on the applicant’s own evidence, Mr Bose had not expressly dismissed him at the meeting on 13 October 2009. He said that Mr Bose had said words to the effect of ‘if you are not happy with your conditions you can resign’. The applicant had said he replied that he would not resign, but would talk to a lawyer. While it was unclear what the applicant meant by wanting to talk to a lawyer, it appears nothing further was said about the resignation until the respondent’s dismissal letter of 31 October 2009. Given these circumstances, and by reference to the words the applicant said Mr Bose used, I do not see how it is possible to construe these words as constituting a termination of employment at the initiative of the employer.

[62] Secondly, there was no challenge to the respondent’s evidence that it made little sense to dismiss the applicant (at least while his performance was not in question as at 13 October 2009), when there was no one to replace him at a busy time of year, when it was difficult to find chefs and in circumstances where Mr Bose had to undertake the chefing duties himself.

[63] Thirdly, there is no doubt the applicant contacted Mr Singh and had asked him why he was giving evidence in support of Mr Bose. His earlier evidence was that he had only contacted the witnesses to find out where to serve the summons to attend FWA on them. In my opinion, his earlier evidence was not the full and true picture. This conduct may well be seen as constituting an improper interference in the administration of justice, through the actual or perceived intimidation of a witness.

[64] Fourthly, if, as the applicant contends, he was dismissed because he had asked for more money, it begs the question why Mr Bose would wait another two weeks before actually dismissing him.

[65] Fifthly, the evidence disclosed that Mr Bose wrote to DIAC on 19 October 2009, in the following terms:

I have sponsored Mr Krishnakanth Samuel Nandakumaran, DoB: 25/01/1983 on 457 visa. He has resigned from this position on 12/10/2009 with one month’s notice.

Since he has resigned, please cancel the sponsorship for him. For further queries please feel free to call me.

In my view, the date and contents of this letter are significant. 19 October 2009 predates the respondent’s complaints about the applicant being late for work and is only a few days after 13 October 2009. The contents of the letter corroborates the respondent’s evidence that the applicant had resigned and had given four weeks’ notice.

[66] Sixthly, and by far the most convincing evidence in support of the respondent’s case, was Ms Kaus’ evidence as to her attendance at the meeting on 13 October 2009, and what she said was said by the participants. I have no reason to doubt that Ms Kaus was at the restaurant and in the meeting on that day. Such a finding, however, means that the applicant was either, completely mistaken about her being there, or untruthful in his evidence before the Tribunal. Of course, without Ms Kaus’ evidence the Tribunal would have been left with a ‘word on word’ case. However, this is not such a case. I am well satisfied that Ms Kaus was present that day, not only because I found her to be a credible witness, but because the cash register dockets confirm her using the register on that day. When faced with this difficult to explain evidence, the applicant’s explanation was that anyone could have used her key number, including himself. This explanation is one which I find most unconvincing. It makes little sense if one considers why anyone would do so, not once, but many times. It requires the implausibility of other employees knowing what Ms Kaus’ number was and using it when it was completely unnecessary to do so. Moreover, it is highly unlikely that the chef or the assistant, Mr Punkaj, would have had such an interface with customers. They were the only other persons working during the lunch period and I accept Ms Kaus’ evidence that it was not a busy day. I also accept Ms Kaus’ evidence that the applicant had given Mr Bose notice of his resignation at that meeting. Her evidence is preferred to that of the applicant’s evidence on this crucial issue.

[67] With these findings, the subsequent dismissal of the applicant on 30 October 2009 becomes irrelevant to the extent that it grounds any jurisdiction of the Tribunal to consider the applicant’s claim of unfair dismissal. By giving notice of resignation, the effective termination of the applicant’s employment was at his initiative. In my judgement, it could not, as a matter of law, be rendered undone or nugatory by the employer’s subsequent action, even if it was to dismiss him during the notice period.

[68] It must follow that the termination of the applicant’s employment does not meet the test of him being dismissed for the purposes of Pt 3-2 of the Act. Consequently, FWA has no jurisdiction to determine the applicant’s claim under s 394 of the Act and this application must be dismissed. An order to that effect is issued with this decision.

[69] As mentioned earlier, I found some aspects of the evidence in this case to be most disturbing. In my view, it would be remiss of me not to alert the appropriate authorities as to a number of allegations made by the applicant during his evidence and the concerns advised to the Tribunal by Ms Markey. The allegations include the following:

1. Falsification of the skills assessment criteria for obtaining skills recognition in contemplation of applications for permanent residency by overseas student visa holders;

2. Demands by the sponsoring employer for large sums of money in return for him providing the necessary skills assessment references;

3. Underpayment of employees and possible breaches of Award conditions and entitlements; and

4. Falsification of time and wages records. Exhibit 2 was an extract from the respondent’s time and wages record. The numerous entries in the extract over the last four months of the applicant’s employment, appear to me to be most suspicious. They all appear to have been filled in at the same time and raise obvious concerns that the entries were backdated.

[70] Accordingly, I direct the transcript in this matter and this decision be provided to the Fair Work Ombudsman (FWO) and the Department of Immigration and Citizenship.

DEPUTY PRESIDENT

Appearances:

Mr P Kiley, Solicitor, for the applicant

Mr A Bose, for the respondent

Hearing details:

2010
SYDNEY
14 and 28 April

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