7-Eleven worker not forced to resign

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7-Eleven worker not forced to resign

Yelling at a worker in front of his family, and blocking access to the company's internal HR system, was not evidence of termination of employment, not was he forced to resign, the Fair Work Commission has ruled.

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Yelling at a worker in front of his family and cutting off access to an in-work mobile phone app was not evidence of termination of employment, the Fair Work Commission has ruled.

A subsequent resignation by the worker was not a “forced” resignation under s386(1) of the Fair Work Act and was therefore not a dismissal for the purposes of the unfair dismissal regime. 

The worker’s unfair dismissal application was dismissed. 

Background 


Rohit Banda formerly worked on a casual basis at “Mrs Australia Pty Ltd” which was trading as a 7-Eleven franchise at Murrarie, a Brisbane suburb. 

The company made a variety of allegations against Mr Banda, namely, that he had stolen from the company, that he was rude to customers, that he did not turn up for shifts, and that he had been repeatedly warned for locking the store at night time and falling asleep on his shift. These allegations were denied by Mr Banda.

At some point prior to 24 April 2017, Raghavendar Reddy Mandadi, who was involved in the management of the store, formed the opinion that Mr Banda had stolen money.

On 24 or 25 April 2017, Mr Banda was confronted at his home, in front of his family, by Mr Mandadi. Accounts differ but there was a heated exchange. 

Mr Banda gave evidence that he chose not to return to work for a few days in order to “back off” to create space at the workplace, which he believed would help resolve conflict. Mr Banda also testified that he believed that casual workers could choose when to work.

In mid-May, Mr Mandadi then sent a “Termination Form” to 7-Eleven’s head office to terminate Mr Banda’s access to the 7-Eleven’s Human Resources Information System (HRIS). The form sent to 7-Eleven described the reason for termination as being “misconduct – theft”.

However, Mr Mandadi never informed Mr Banda of the termination. When asked when he had decided to terminate Mr Banda’s employment, Mr Mandadi said it was when the worker did not turn up for his shift or explain his absence or misconduct.

Mr Banda said that, at some point in early June, he received a message, delivered via his own sister, from Mr Mandadi, who allegedly indicated that he would keep Mr Banda’s year end taxes as compensation for theft. Mr Banda testified that he never heard from Mr Mandadi again. A few days later, being unhappy at the situation, Mr Banda resigned “under protest”.

The law


Section 386(1)(b) of the Fair Work Act states that a person has been dismissed if he or she was forced to resign from employment because of the conduct of the employer. If a person has not been dismissed, there is, therefore, no unfair dismissal and no possibility of receiving compensation or being reinstated.

The legal questions for the Fair Work Commission were twofold. Firstly, did the conduct of the employer in yelling at Mr Banda and cutting him off from the HRIS terminate the employment? And, secondly, if the employer’s behaviour did not terminate the employment, did the employer’s conduct force Mr Banda to resign which would be deemed to be a dismissal under s386(1)(b)? 

Held by the Commission


Commissioner Simpson noted that there was significant disagreement between the witnesses about who said what in the confrontation in April 2017. He concluded that much of the exchange between the two men was “hyperbole in the course of a heated exchange”.

The Commissioner concluded that the exchange was not intended to end Mr Banda’s employment nor did it have the probable result that Mr Banda would have no choice but to resign. 

It was also held that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. Merely cutting off Mr Banda from a workplace app was not evidence that Mr Banda had been told he was being dismissed. 

Mr Banda’s employment was therefore not terminated by the employer before his resignation. 

Was Mr Banda’s resignation, in fact, a forced resignation and therefore a form of dismissal? Commissioner Simpson held that the intention to resign was formed after Mr Banda’s conversation with his sister in early June. However, that conversation was not direct evidence of Mr Mandadi’s behaviour and Mr Banda did not confront Mr Mandadi to see if what his sister said was true. As Mr Mandadi was not cross-examined, Commissioner Simpson held that there was simply not enough evidence to support Mr Banda’s claim that he had no choice but to resign. 

“Where an employee decides to submit a written resignation and asserts they were forced to resign, the onus is on the applicant to make good that argument…” the Commissioner ruled.

He dismissed Mr Banda’s application. 

Mr Rohit Banda v Mrs. Australia Pty Ltd T/A 7-Eleven
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