Fair Work Ombudsman v Bikaner India (WA) Pty Ltd
[2023] FedCFamC2G 20
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Bikaner India (WA) Pty Ltd [2023] FedCFamC2G 20
File number(s): SYG 1182 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 January 2023 Catchwords: INDUSTRIAL LAW – Fair Work Act – Restaurant Industry Award – multiple contraventions of the Act – whether Director accessorily liable – liability determined. Legislation: Fair Work Act 2009 (Cth) ss 44, 45, 90, 323, 325, 340, 535, 536, 545, 550
Fair Work Regulations 2009 (Cth)
Workers Compensation and Assistance Act 1981 (WA)
Restaurant Industry Award 2010
Cases cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51
Australian Building and Construction Commissioner v Parker [2017] FCA 564
Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17
Australian Securities & Investments Commission v Maxwell (2006) 59 ACSR 373
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342
Browne v Dunne (1894) 6 R 67
Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810
Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamCG2 934
Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209
Fair Work Ombudsman v Lohr [2018] FCA 5
Martin v Taylor [2000] FCA 1002
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Yorke v Lucas (1985) 158 CLR 661
Division: Division 2 General Federal Law Number of paragraphs: 197 Date of last submission/s: 13 January 2023 Date of hearing: 14-15 December 2022 Place: Parramatta Counsel for the Applicant: Mr Power Counsel for the Respondents: Ms Truong ORDERS
SYG 1182 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: BIKANER INDIA (WA) PTY LTD (ACN 158 171 156)
First Respondent
SUSHIL KUMAR
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
24 January 2023
THE COURT ORDERS THAT:
1.A declaration be made that the Second Respondent was involved in the following contraventions of the First Respondent, pursuant to s 550(2) of the Fair Work Act 2009 (Cth) (’the Act”):
(a)section 45 of the Act and clause 20.1 of the Restaurant Industry Award 2010 (“Award”), by failing to pay to Mr Hasan the required minimum rate of pay;
(b)section 45 of the Act and clause 34.1 of the Award, by failing to pay to Mr Hasan the required public holiday penalty rates;
(c)sections 44(1) and 116 of the Act, by failing to pay Mr Hasan for work not performed on a public holiday;
(d)section 45 of the Act and clause 34.2(a)(i) of the Award, by failing to pay to Mr Hasan the required evening penalty rates;
(e)section 45 of the Act and clause 33.1 of the Award, by failing to pay to Mr Hasan the required overtime rates;
(f)section 45 of the Act and clause 33.2 of the Award, by failing to pay to Mr Hasan the required Saturday overtime rates;
(g)section 45 of the Act and clause 33.2 of the Award, by failing to pay to Mr Hasan the required Sunday overtime rates;
(h)section 45 of the Act and clause 31.2(e) of the Award, by failing to provide Mr Hasan with eight full days off;
(i)section 45 of the Act and clause 27.2 of the Award, by failing to pay to Mr Hasan either weekly or fortnightly;
(j)section 45 of the Act and clause 30.2(a) of the Award, by failing to pay to Mr Hasan his superannuation payments;
(k)section 325(1) of the Act, by requiring Mr Hasan to pay back to the First Respondent an amount from his wages each pay;
(l)section 323(1)(a) of the Act, by failing to pay Mr Hasan any wages for the periods 21 December 2015 to 9 February 2016 and 3 April 2016 to 10 June 2016;
(m)sections 44(1) and 90(2) of the Act, by failing to pay Mr Hasan his annual leave entitlements upon termination of his employment;
(n)section 535(1) of the Act, by failing to make and keep records in respect of Mr Hasan prescribed by regulations 3.32(e), 3.32(f), 3.33(1), 3.33(3), 3.34, and 3.36 of the Fair Work Regulations 2009 (Cth);
(o)section 536(1) of the Act, by failing to issue payslips to Mr Hasan within one working day of payment; and
(p)section 340(1) of the Act, by taking adverse action against Mr Hasan by dismissing him, because Mr Hasan exercised his workplace right to make a claim for compensation under the Workers’ Compensation and Assistance Act 1981 (WA).
2.Pursuant to s 545(2)(b) of the Act the Second Respondent:
(a)Pay $38,822.68 to the Applicant within 28 days of the date of this judgment, with the Applicant to:
(i)Pay that amount to Mr Hasan, or such amounts as may remain outstanding, as soon as practicable after the receipt of the payment; and
(ii)In the event that the Applicant cannot locate Mr Hasan, pay the applicable amount to the Consolidated Revenue Fund of the Commonwealth within a further 7 days; and
(b)make contributions on behalf of Mr Hasan to his nominated superannuation funds in respect of the payments made pursuant to paragraph 2(a) herein, at the superannuation guarantee charge rate prescribed by the applicable superannuation legislation as at the date these orders are made.
3.The Applicant to file and serve any evidence and written submissions, of no more than 10 pages, on or before 14 February 2023.
4.The Second Respondent to file and serve any evidence and written submissions, of no more than 10 pages, on or before 7 March 2023.
5.The matter be listed for Directions at 9:30am on 10 March 2023.
6.The Applicant have liberty to apply on 3 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
In July 2017, the Fair Work Ombudsman (“FWO”) commenced proceedings in this Court alleging the First Respondent, Bikaner India (WA) Pty Ltd (“Bikaner”), contravened 16 provisions of the Restaurant Industry Award 2010 (“the Award”), the Fair Work Act 2009 (Cth) (“the Act”) and Fair Work Regulations 2009 (Cth) (“the Regulations”) in relation to the employment by Bikaner of a former employee, Khondker Riyadh Hasan (“the complainant”), during the period 3 August 2015 to 10 June 2016. The complainant was employed by Bikaner as a cook in a restaurant known as the Bricklane British Curry House (“Bricklane”) in Leederville, Western Australia.
The application also alleged that the second respondent, Mr Sushil Kumar (“Mr Kumar”), who was a Director of Bikaner, was an accessory to each of Bikaner’s contraventions, pursuant to s 550 of the Act, by reason of his involvement in the contraventions.
On 4 December 2017, Gilmore J of the Federal Court entered default judgement against Bikaner, including declarations that during the employment period of the complainant, Bikaner contravened the pleaded 16 provisions of the Act in respect of its employment of the complainant.
Those contraventions may be summarised as follows:
1. failing to pay the complainant the required minimum rate of pay prescribed by the Award;
2. failing to pay the complainant required public holiday penalty rates;
3. failing to pay the complainant for work not performed on a public holiday;
4. failing to pay the complainant the required evening penalty rates;
5. failing to pay the complainant the required overtime rates;
6. failing to pay the complainant the required Saturday overtime rates;
7. failing to pay the complainant the required Sunday overtime rates;
8. failing to provide the complainant with eight full days off;
9. failing to pay the complainant either weekly or fortnightly;
10. failing to pay the complainant superannuation payments
11. requiring the complainant to pay back to Bikaner an amount from his wages each pay
12. failing to pay the complainant any wages for the periods 21 December 2015 to nine February 2016, and 3 April 2016 to 10 June 2016;
13. failing to pay the complainant his annual leave entitlements upon termination of employment;
14. failing to make and keep records in respect of the complainant as required by the Act;
15. failing to issue payslips to the complainant within one working day of payment; and
16. taking adverse action against the complainant by dismissing him, due to the complainant exercising his workplace right to make a claim for compensation under the Workers Compensation and Assistance Act 1981 (WA).
On 7 March 2018, Bikaner was wound up due to insolvency. On 8 November 2020, Bikaner was deregistered.
The FWO submitted that the only remaining issue for the Court to determine is whether Mr Kumar was involved, pursuant to s 550 of the Act, in each of the declared contraventions.
The FWO seek declarations and orders against Mr Kumar in the same terms as those declared against Bikaner, as set out above. Further, the FWO seek orders pursuant to s 545(2)(b) of the Act, that Mr Kumar pay the amount of $38,882.68 to the complainant, within 28 days of the Court’s order, as compensation for amounts due to the complainant but unpaid, and make superannuation contributions at the required rate into the complainant’s nominated superannuation fund. The FWO also seek pecuniary penalties against Mr Kumar.
Mr Kumar denies that the declarations made against Bikaner bind him. It is contended that the FWO must prove the alleged contraventions against him and the FWO cannot make out a case of accessorial liability against him.
Background
It is common ground that at all times from 6 July 2012, Mr Kumar was a Director of Bikaner. From 26 February 2015 to 18 December 2015, Mr Hasan Sharif (“Mr Sharif”) and his wife, Ms Trudi Ann Sharif, were joint Directors of Bikaner, along with Mr Kumar.
Mr and Ms Sharif were not called by either party to the proceedings. The Court was advised by Counsel for the FWO that their whereabouts is unknown.
Some evidence was admitted as to previous representations made by Mr Sharif to the FWO and the complainant. The Court has given these little, if any, weight other than they may have been said.
It is not disputed that in or around March 2015, Mr Sharif, while in Bangladesh, offered the complainant employment with Bikaner and sponsorship by Bikaner for a Temporary Work (Skilled) 457 visa (“Subclass 457 visa”).
The complainant alleges that on 28 March 2015, he entered into a contract of employment with Bikaner as a cook, at Bricklane, on a fulltime basis. The contract provided that the complainant would be paid an annual salary of $54,000 per annum for a 40 hour week plus an additional sum for hours worked over 40 hours per week. The complainant was granted a subclass 457 visa on 21 May 2015. He travelled, along with his wife and daughter, to Australia on or around 28 July 2015. He commenced working at Bricklane on or around 3 August 2015.
The Fair WOrk ombudsman’s Evidence
The FWO called three witnesses, the complainant, Ms Kawathar Girach, an inspector with the FWO, and Mr Shailander Bhatia, an accountant retained by Mr Kumar to do certain work. Each witness was cross-examined. A further witness, Ms Sharissa Thirukumar, gave evidence in an Affidavit but was not required for cross-examination.
Evidence of the Complainant
The complainant swore two Affidavits, an Affidavit in reply, filed 7 January 2019, and a trial Affidavit, filed 11 December 2020.
In his Affidavits, the complainant deposes that he is qualified as a chef. He holds a Bachelor of Commerce in Management and a Diploma of Food Preparation and Culinary Art. Copies of his educational qualifications together with references from various employers. Although Mr Kumar claimed that the complainant was not a cook and had been selling cars prior to coming to Australia, no evidence was produced that indicated the certificates and references were fraudulent.
In around March 2015, the complainant was contacted by Mr Sharif who offered him a job as a chef in a restaurant in Perth. He subsequently received a letter of appointment. His employer arranged for a subclass 457 visa to be granted to him. It was a condition of the visa that he work for Bikaner (WA) Pty Ltd.
The complainant arrived in Australia around 1 August 2015. On 1 August 2015, he met Mr Kumar at the Bricklane restaurant. Mr Kumar explained that his hours of work would be six days per week, with one day off on either a Monday, Tuesday or Wednesday. He was to work Thursday and Friday, 10:00AM to 11:00PM and on all other days 3:00PM to 11:00PM.
The complainant, however, was instructed by Mr Kumar that he was to fill in his time sheets as follows:
1. Thursdays and Fridays: 12:00PM till 2:00PM and 5:00PM to 10:00PM;
2. Saturdays and Sundays: 3:00PM till 10:00PM;
3. All other days 5:00PM till 10:00PM.
The above amounts to a total of 38 hours per week. It was claimed that it was said to the complainant that the discrepancy between the actual and recorded hours of work was because there was a limit on the number of hours he was allowed to work on his Subclass 457 visa.
Mr Kumar explained the complainant’s wage would be $1,634.00 per fortnight. This would be paid into the complainant’s bank account. However, after receiving his wages, the complainant was to repay in cash $434.00 to either Mr Kumar, or if he was unable to pay Mr Kumar, to put the money in an envelope and give it to the restaurant manager, Ms Jasvir Kaur. He asked Mr Kumar what he needed to make this payment back and was told “it is the procedure for your visa”.
At the restaurant, the complainant worked with Mr Sharif, who was Head Chef. He also worked with Tarun Kumar. Mr Kumar visited the restaurant at least 4-5 days per week. When there, Mr Kumar greeted and seated customers, took orders and bought order dockets to the kitchen. Mr Kumar also watched food being prepared and inspected the food before it went out to the customer.
The complainant deposes that he took no sick days from 3 August 2015 to 9 February 2016. Although he worked over 50 hours per week, he always signed the time sheet for 38 hours.
In all, the complainant states that he received ten wage payments, the first on 14 August 2015 for the week ending 9 August 2015, and the last on 14 January 2016 for the week ending 13 December 2015. He states that he was not always paid fortnightly. Annexed to his Affidavit is a copy of his relevant bank statements.
The Court notes at this point of time the complainant’s bank statements clearly show the complainant was not paid fortnightly. For example, he was paid on 12 October 2015, next on 6 November 2015 and then on 30 November 2015, yet the relevant wage slips later produced by Mr Kumar indicates the complainant was paid on 18 October, 1 November and 15 November 2015.
The complainant states he never received any payslips. When he asked about them he was told by Mr Kumar “We will give you pay slips later”.
The complainant deposes that on 9 February 2016, he injured himself at work lifting a heavy pot. As a result, he was unable to work. On 13 February 2016, the complainant emailed documents he received from his treating General Practitioner, including a ‘First Certificate of Capacity’ to Mr Kumar. These are attached to his Affidavit, along with notes he claims that he created in relation to subsequent telephone conversations he had with Mr Kumar. The complainant states Mr Kumar told him on 13 February 2016 in a telephone conversation “Do not go to WorkCover or try and get compensation from them. I will try and pay for your treatment out of my own pocket”.
On 27 February 2016, the complainant emailed Mr Kumar requesting payment for unpaid wages. The complainant had further email correspondence with Mr Kumar requesting payment of wages.
Around 18 March 2016, the complainant had capacity for work. When he went to the restaurant, Ms Kaur told him: “Don’t come into work yet; I will call you in two weeks, around the 4th of April, and let you know what to do”.
On 23 March 2016, the complainant sent an email to the Department of Immigration about the problems he was having with his employer and not being paid wages. A copy of that email is attached to the complainant’s Affidavit.
During March, April and May of 2016, the complainant sent further emails, again attached to his Affidavit, about returning to work and his unpaid wages. He received no reply. On 30 May 2016, the complainant completed a Worker’s Compensation Claim and sent it by registered post to the registered office of Bikaner. On 9 June 2016, he also emailed copies of various documents, including the claim form, directly to Mr Kumar.
Following the email being sent, the complainant deposes that he received a phone call from Mr Kumar who asked him to come to Bricklane. When he arrived, Mr Kumar said words to the effect “You cannot work here anymore. I will not pay you anymore. If you want me to continue sponsoring your visa, you will have to pay me $40,000”.
On 10 June 2016, the complainant sent another email to the Department of Immigration. A copy of that email is attached to his Affidavit. In it, he details the issues he has with his employer detailed above and requests assistance from the Department.
On 10 June 2016, the complainant states he received an email from Mr Kumar containing two letters. One was a letter entitled “Cessation of employment as a cook” and the other was a copy of a letter from Mr Kumar to the Department of Immigration advising of the termination of the complainant’s employment.
On 28 June 2016, the complainant deposes he received from Mr Kumar, via email, a handwritten letter dated 18 December 2015, signed by Mr Kumar, purportedly terminating his employment as at that date. The complainant states that he had never seen that letter before.
The complainant was cross-examined. He denied that it was Mr Sharif who told him when to work, what to do or who paid his wages. He denied that he was related to Mr Sharif and that Mr Sharif was his cousin. He denied that Mr Kumar had nothing to do managing the business. He confirmed Mr Kumar had told him to pay back $434 per pay. He denied fabricating his references and that he was never a cook at a restaurant in Bangladesh. He denied receiving a handwritten termination letter on 18 December 2015.
The complainant gave forthright, consistent and detailed evidence that included contemporaneous notes, letters, emails, medical reports, workers compensation documents and bank statements that support his version of events. He was not shaken in cross-examination. The Court accepts his evidence as credible and highly reliable. The Court prefers the complainant’s evidence over that of Mr Kumar, Mr Tarin Kumar and Ms Kaur where their evidence differs.
Evidence of Sharissa Thirukumar
Ms Thirukumar is a lawyer employed by the FWO. Annexed to her Affidavit were documents indicating that Mr Kumar was a Director of Bikaner (WA) Pty Ltd from 6 July 2012. During the period 26 February 2015 to 18 December 2015, there were two additional Directors, Mr Hassan Sharif and Ms Trudi Ann Sharif.
Also annexed to her Affidavit is a copy of the default orders made against Bikaner (WA) Pty Ltd by Gilmour J on 4 December 2017.
Evidence of Mr Shailander Bhatia
Mr Bhatia affirmed a single Affidavit filed 11 December 2020. Mr Bhatia is an accountant working for CNR Accounting. His firm was engaged by Bikaner to provide accounting services including the preparation of taxation returns. They did not assist with payroll servicing.
Mr Bhatia deposes that in or around August 2016, he was retained by Mr Kumar on behalf of Bikaner to prepare payslips in relation to a single employee, being the complainant. Mr Bhatia deposed Mr Kumar told him that the FWO had asked for payslips in relation to a single employee. Mr Kumar attended the offices of CNR Accounting and provided Mr Bhatia with a USB containing the information in ledger format needed to create the payslips. Mr Bhatia did not check the accuracy of the information contained within the USB. Mr Bhatia deposes that he then created the payslips and emailed them.
The Court accepts Mr Bhatia’s evidence as reliable and credible. His cross-examination was very brief and his evidence was not challenged. The Court accepts him as a witness of truth as to the matters he gave evidence about.
The Court notes that the information contained within the ledger provided to Mr Bhatia, in terms of the dates payments were made to the complainant, does not correspond with the corresponding information contained within the bank account statements of Bikaner or the complainant’s bank statements showing deposits from Bikaner. These bank statements are before the Court. Further, the dates on the payslips produced by Mr Bhatia, as being the purported dates of wages being paid, do not correspond in many cases with the dates contained within the ledger provided to him or the dates in the bank account statement from which the payments were made. The dates in the payslips are different from those in the ledger and gives the appearance of regular payments to the complainant.
The Court is satisfied that the payslips were created following a request from the FWO for payslips relating to the complainant. Prior to their creation in August 2016, no payslips existed. The Court places no weight on the dates contained within the payslips and prefers the material contained within the relevant bank statements of Bikaner and the complainant as evidence of the amounts paid to the complainant and the dates those amounts were paid.
The Court notes that the actions of Mr Kumar in seeking to retrospectively create payslips, following a request by the FWO, is strong evidence of a willingness of Mr Kumar to attempt to deceive the FWO, by creating documentary material that supports a false narrative on his part.
Evidence of Ms Kawathar Girach
Ms Girach is an Inspector with the FWO. Following a request for assistance from the complainant, Ms Girach was allocated to investigate the complaints.
Following obtaining documents from the complainant, she sought documents from Mr Kumar relevant to the employment of the complainant. Documents provided included a ‘Letter of Appointment’ dated 25 March 2016, Westpac bank statements covering the period 30 June 2015 to 23 January 2016, timesheets for the period 28 September 2015 to 27 December 2015 and a letter of termination dated 18 December 2015.
Further documents were received following a Notice to Produce issued to Bikaner dated 16 August 2016. On 27 August, Ms Girach received from Mr Kumar, two emails attaching payslips for the complainant for the period 2 November 2015 to 27 December 2015, and 23 August 2015 to 1 November 2015. These payslips were sourced from Mr Bhatia of CNR Accounting. The source ledger for the payslips was provided by CNR Accounting following the issue of a Notice to Produce (“NTP”).
Various bank statements were also obtained from the Westpac Banking Corporation via an NTP.
On 4 August 2016, Ms Girach had a telephone conversation with Mr Sharif. Mr Sharif told Ms Girach inter alia that he worked as the Head Chef at Bricklane and that Mr Kumar looked after the administration. The Court accepts this evidence on the basis that it was said, but not as to the truth of the statements. Mr Sharif has since disconnected his contact telephone and his whereabouts are unknown.
On 19 December 2016, Ms Girach conducted a Record of interview with Mr Kumar with the assistance of an Interpreter (Court Book pages 300-449). After outlining various allegations relating to breaches of the Act, Ms Girach advised Mr Kumar at Q12, the interview was being recorded, he was not obliged to answer any questions, but any answers could be used against him and that had the right to terminate the interview at any time.
During the interview, Mr Kumar stated that he went into a partnership with Mr Sharif in relation to Bricklane. Mr Sharif organised the complainant to migrate to Australia on a Subclass 457 visa.
In answer to Q39, Mr Kumar claimed that the complainant was not a chef and was unable to function in that capacity. He argued with Mr Sharif over bringing the complainant to Australia. Mr Kumar claimed that Mr Sharif looked after the administration of the restaurant, including the accounts and that he was not involved in the day to day running of the business.
At Q64-70, Mr Kumar stated he operated up to four restaurants at any one time, including Bricklane. He claims the business struggled to make money and, at Q86, that Mr Shariff was a bad businessman, who “did the party every day” and drank lots of alcohol.
At Q117-118, Mr Kumar states that he had a discussion with Mr Sharif about the rent and suppliers not being paid
At Q122 and again at Q153-158, Mr Kumar stated on 18 December 2015, that he and Mr Sharif dissolved the partnership. Mr Sharif and his wife resigned as Directors of Bikaner. On the same day, Mr Kumar states that he terminated the complainant’s employment with two weeks’ notice. He claims however, that Mr Sharif stayed on till 9 February 2016.
At Q149, Mr Kumar agrees he spoke to the complainant on the telephone on 3-4 occasions in 2016. At Q163-170, Mr Kumar confirmed that his nephew, Mr Taran Kumar, also worked at Bricklane during the relevant period as a Tandoori Cook. Mr Taran Kumar’s wife, Ms Jasvir Kaur, worked as the Manager at the front of the restaurant.
At Q212 and onwards, Mr Kumar claimed that the complainant had produced false documents that he was qualified as a chef. He claimed that the complainant told him that he had worked as a car seller.
At Bricklane, Mr Kumar stated the complainant worked only as a dishwasher and kitchen hand. He claimed that when he challenged what the complainant was doing, Mr Sharif said he had no right to interfere in the employment of the complainant.
At Q242 onwards, Mr Kumar again claimed that all wages had been paid by Mr Sharif, including Ms Kaur and Mr Tarun Kumar. He stated: “I’m not even seeing the account. I don’t have it, I can’t even see the account. Not the banking, everything, controlled by the Hassan (Mr Sharif)”. He said Mr Sharif did the banking through the internet.
After 9 February 2016, Mr Kumar stated that Ms Jasvir Kaur had control of the bank account for the company. At Q274, he agreed that sometimes he saw a cheque but he was not quite sure.
At Q277 onwards, Mr Kumar stated that payroll processing was done by a person called Brian Amin of Bamna Services. Mr Amin had access to the company bank account and could transfer money for wages. At Q310, he denied ever personally transferring money for the complainant’s wages.
At Q311 onwards, Mr Kumar confirmed he terminated the complainant on 18 December 2015 by giving him a termination notice in a handwritten letter. At Q319, he confirmed he knew the complainant was being paid $1,640 per fortnight. At Q320, he denied that the complainant was required to pay back any of the wages paid to him. He stated that he did not know if money could have been paid to Mr Sharif.
At Q345 onwards, Mr Kumar claimed that a second termination letter given to the complainant in June 2016 was “to do with immigration” and that there were mistakes in the first letter.
Q450 and onwards deal with the start time of the complainant. While the start time on the timesheet states the complainant commenced work at 5:00 pm, it was put to Mr Kumar that the complainant actually started at 3:00pm. He denied that was the case.
Q458 and onwards cover the handwritten termination document given to the complainant dated 18 December 2015. Mr Kumar stated that he dictated the document but that it was written by ‘Ansul’, Mr Sushil Kumar’s nephew. Mr Kumar stated the letter was given to the complainant in front of all the staff of the restaurant (record of interview Q508). A second termination letter, with a date of 9 February 2016, was shown to Mr Kumar. He agreed it contained his signature (record of interview Q519).
At Q552, Mr Kumar claims a letter with a termination date of June 2016 was created as he found out that Mr Sharif had not terminated the complainant’s sponsorship with Immigration.
At Q566, Mr Kumar was shown records from Westpac, provided to the FWO, that indicate Mr Kumar was the only signatory to the Bikaner India WA Pty Ltd account. He claimed this was a mistake and that Mr Sharif was also a signatory.
At Q575, Mr Kumar was asked questions regarding the payslips in respect of the complainant produced to the FWO. At Q588, it was put to Mr Kumar that he had asked his bookkeeper to create payslips from data contained on a USB that he gave to him. He disagreed, and denied at Q593 he had given his bookkeeper any records.
At Q594, it was put to Mr Kumar that none of the dates from the bank statements and the payslips matched. He replied that this was the responsibility of Mr Sharif and that he was behind with the wages.
At Q596, it was put to Mr Kumar that the complainant alleged Mr Kumar attended Bricklane on an almost daily basis. He denied that suggestion.
At Q600, it was put to Mr Kumar that the complainant was not paid any annual leave on termination. He replied at Q601 “I think so”. At Q605 and onwards, Mr Kumar agreed he knew about the Award.
At Q618 and onwards, Mr Kumar alleges that Mr Sharif had netbank access to the Westpac account with a separate login and token. At Q638, he alleged all the questions he had been asked should be directed to Mr Sharif. He also complained, at Q632, that the questions he was asked were ‘tricky’. Notwithstanding, this he agreed to continue with the interview at Q644.
Q653 is problematic for Mr Kumar. Despite having previously stated Mr Sharif looked after that accounts and that any issues with late wage payments were Mr Sharif’s fault alone, he answers that he told Mr Sharif “that you need to stop behind wages. His supplier behind the payment….Why you not pay the people”. This answer clearly indicates that prior to 18 December 2015, Mr Kumar had access to the business bank account and had actual knowledge of issues with wage payments to staff, including the complainant.
At Q702 and onwards, Mr Kumar was asked about the WorkCover claim submitted by the complainant. When asked what he could tell the FWO Officers about that, he answered “He’s completely is lying basis”. At Q709, he states he told WorkCover “I told them. I said ‘No. Firstly he’s not the employment, secondly, he’s not hurt. We got a video – we have the CCTV there – anyway’”.
At Q724, Mr Kumar was reminded that the FWO had asked for the CCTV footage in a NTP “and after that you told me that (the CCTV footage) doesn’t exist”. He answered “Because we can’t get this one now”. The Court notes that this video has not been produced subsequently to the FWO or to the Court as evidence.
Mr Kumar was asked various questions about the WorkCover claim made by the complainant. He agreed that he spoke to a WorkCover representative. He agreed he did not pay any money in respect of medical expenses for the complainant. At Q760, he denied any conversations with the Complainant about WorkCover prior to May or June.
At Q783, Mr Kumar alleges that on around 9 February 2016, the complainant stole a lot of things from the restaurant. He further alleges that he spoke to the complainant about him stealing on 10 or 11 February 2016.
At Q866, it was put to Mr Kumar that the first time the complainant saw the hand written Notice of Termination dated 18 December 2015 was in an email dated 28 June 2016. Mr Kumar claimed that the attachment was a copy of the original that was handed over on 18 December 2015. At Q890, Mr Kumar states that the complainant is lying about not receiving the termination document on 18 December 2015. At Q926, he alleges Mr Sharif was lying about the complainant in order to save the complainant’s visa.
In her second Affidavit, Ms Girach confirmed that at all relevant times Mr Kumar was the sole account holder for the company’s bank accounts with Westpac. She denies ever asking Mr Kumar to provide typed documents and it is standard practice of the FWO to obtain original documents.
The recorded interview with Mr Kumar was voluntary and he was informed at the beginning of the interview he was not obliged to answer any question, could terminate the interview at any time and the answers he gave could be used in evidence against him
The Court accepts that Ms Girach gave truthful evidence. Her cross-examination was brief. She was not challenged on many material matters in cross-examination. The Court finds that she gave an impartial, truthful and accurate account to the Court. The Court prefers her evidence wherever it differs to that of Mr Kumar.
The Respondent’s Evidence
In addition to himself, Mr Kumar called two other witnesses, Mr Tarin Kumar, his nephew and Ms Jasvir Kaur, the wife of Mr Tarin Kumar.
Evidence of Mr Sushil Kumar
Mr Kumar gave evidence with the assistance of an Interpreter. He affirmed three Affidavits, the first on 28 November 2018, the second on 6 November 2019 and the third on 23 September 2021.
Mr Kumar deposes that in January 2015, he entered into a partnership with Hassan Sharif and his wife Trudi Sharif. Under the agreement, the Sharif’s would invest $200,000 and in return would become 50% shareholders of Bikaner (WA) Pty Ltd. He deposes they became Directors of Bikaner and took over the running and administration of the Bricklane restaurant. All wages were paid by them and not through Bikaner.
On 18 December 2015, Mr and Ms Sharif ceased to be Directors of Bikaner. Mr Kumar claims in December 2015 to January 2016, he travelled to Sydney and opened a new restaurant called the Cinnamon Club in Strathfield NSW.
Mr Kumar claims that he did not have a conversation with the complainant when he commenced work regarding his hours of work, as he was not involved in the day to day running of the business. That was left to Mr Sharif. Mr Kumar states that he visited Bricklane once a fortnight or month.
Mr Kumar deposes that the complainant told him, around 3 August 2015, that prior to leaving Bangladesh he worked in a car yard and was not a chef.
Mr Kumar deposes that following the resignation of Mr and Mrs Sharif as Directors of Bikaner, he handed the complainant a handwritten Termination Notice on 18 December 2015. On 29 December 2015, the amount outstanding to the complainant was calculated as $2,400, which was paid to the complainant by Mr Tarun Kumar. He deposes that he never transferred wages to the complainant.
Mr Kumar claims that the complainant was still working at Bricklane following his termination, as Mr Sharif said he was teaching the complaint how to cook.
Mr Kumar acknowledges receiving emails from the complainant attaching various documents but claimed that it was not his responsibility as the complainant had been terminated on 18 December 2015 and all entitlements had been paid out.
In relation to letters sent to the Department of Immigration, Mr Kumar claims the letters sent on 10 June 2016 contained an error in that it stated the complainant was terminated on 9 February 2016, whereas the correct date should have been 18 December 2015. Further, the letter claimed the complainant had ‘not given any evidence of his medical condition and has unilaterally decided not to come to work’.
The Court notes this statement is clearly false as the complainant had provided in various emails and letters evidence of his medical conditions from his medical practitioner to Mr Kumar which he has acknowledged receipt of.
In his third Affidavit, Mr Kumar claims it was only in September 2015, that he decided to check the financial affairs of the restaurant. He claims that Mr Sharif had changed the log in details for the account. He claims that he contacted his accountant who told him he had stopped doing work for the restaurant as he had not been paid.
On 18 December2015, Mr and Ms Sahrif resigned as Directors. In late December 2015, Mr Kumar claims he gave $2,400.00 to his nephew, Tarun Kumar, to give to the complainant, being his entitlements upon termination.
In January 2016, Mr Kumar claims Mr Sharif and the complainant attended the restaurant. He claims that he left a voice message with the complainant to the following effect, “Who are you to come to my restaurant. You were fired in December 2015. Don’t come anywhere near my restaurant”.
Mr Kumar acknowledges that he was aware that the complainant injured his back but says he was not an employee at the time. He ignored emails as the complainant was not an employee and this the company had no liability for the injury.
Mr Kumar denies ever being involved with rostering the employees or that he had a conversation regarding the complainant’s hours of work. He denies any knowledge of the payback arrangement claimed by the complainant. He denies he was ever asked for payslips by the complainant.
In relation to Ms Girach’s evidence, Mr Kumar claims that she requested a typed version of the complainant’s letter of termination. He claimed, at paragraph 92 to 94 of his Affidavit, that during the recorded Record of Interview he was told he could not leave the interview until it was finished and he was not informed his answers could be used in evidence against him.
He denies personally interacting or communicating with Mr Bhatia.
Mr Kumar was extensively cross-examined. His evidence was not reliable or credible. He is not a witness of truth. His evidence was inconsistent in many areas. The Court prefers the transcript of the Record of Interview and finds that Mr Kumar was advised his answers to questions could be used against him and that he was free to terminate the interview at any time. His evidence regarding the termination letters is simply not credible, noting the various dates in the documents produced. The dates are entirely convenient, first being the date of resignation of the Sharif’s as Directors of the company and second the date of the complainant’s injury at the restaurant.
The Court rejects the claim that Mr Kumar had no interaction with Mr Bhatia. The Court is unsure why Mr Bhatia would undertake the work to produce payslips unless he was briefed to do so.
Mr Kumar’s answers under cross-examination were highly evasive. He was directed on a number of occasions to answer questions put to him.
Evidence of Mr Tarin Kumar
Mr Tarin Kumar deposed two Affidavits. The first was filed on 10 December 2018. Mr Tarin Kumar is the nephew of Mr Shushil Kumar. He deposes that he previously worked at the Cinnamon Club Indian Restaurant that was owned by his uncle. After the restaurant closed, he began working at Bricklane as a tandoori cook.
Mr Tarin Kumar deposes that the opening hours of the restaurant were Monday to Wednesday and Saturday to Sunday 5:00PM until 9:00PM. Cooks were required to arrive at 3:00PM.
On Thursdays and Fridays, the restaurant would be open 12:00PM until 9:30PM with cook’s required to start at 11:00AM. In about August 2015, Mr Tarin Kumar met the complainant. He deposes the complainant worked Monday, Tuesday, Thursday, Friday, Saturday and Sunday from 5:00PM to 9:30PM. He would have a 30 minute break during his shift. He did not work Wednesdays.
Mr Tarin Kumar deposes, in mid-December, to overhearing a conversation between Mr Kumar and Mr Sharif. The conversation included allegations that Mr Sharif was not paying the rent on the restaurant. He further deposes that on 18 December 2015, at a staff meeting of the restaurant, Mr Kumar told the complainant that his employment was terminated and will finish after 14 days. He further deposes that at the end of December 2015, Mr Kumar gave him $3,200 in cash which he signed for. He deposes that he saw Mr Kumar give the complainant $2,400 in cash saying (as in set out the Affidavit) “this is $2400 to cover your paid and entailments owed. Good luck”. No bank statement has been produced showing the withdrawal of those funds from any account operated by Bricklane or Mr Tarin Kumar or Mr Kumar.
Notwithstanding that the complainant had been terminated, Mr Tarin Kumar deposes he saw the complainant attend the restaurant in January 2016. After 10 February 2016, Mr Kumar took over running Bricklane.
In his second Affidavit, filed 23 September 2021, Mr Tarin Kumar denies ever receiving an envelope containing cash from the complainant to be given to Mr Kumar.
In cross-examination, Mr Tarin Kumar agreed that his uncle, Mr Kumar, had assisted him in obtaining a visa to come to Australia, and after arriving in Australia he had worked for his uncle. He agreed that whilst working for his uncle, he also lived at the premises also occupied by his uncle and cousins. He denied that he had spoken to anyone else, including his wife, about the evidence he was giving in this matter.
When taken to his Affidavit, in respect of his statement that he saw his uncle give money to the complainant, he sought to change his evidence to indicate that he gave the $2,400 to the complainant, not his uncle. This was notwithstanding the fact he had been asked by the Mr Kumar’s counsel, when giving evidence in chief, whether there are any corrections required to his Affidavit evidence. He stated that he got a phone call from Mr Kumar and that he was not aware of what the money was for. The money was passed over at the home of the complainant.
Mr Tarin Kumar denied giving false evidence in relation to the purported termination of the complainant on 18 December 2015. When he was asked if he got a receipt for the $2,400 he stated he did, but he was unsure where it was and he did not think it was an important document.
Mt Tarin Kumar’s evidence was problematical. First, he denied speaking with his wife, Ms Kaur, about his evidence. This is to be compared with Ms Kaur’s evidence (see below) in which she says he did. His evidence in relation to paying the complainant $2,400 in cash was significantly inconsistent. His Affidavit evidence was that Mr Kumar paid over the money, in front of him, at the restaurant to the complainant. His later oral evidence was that he paid the money directly to the complainant at the complainant’s home. Whilst he obtained a receipt, he did not retain it. The Court does not accept this evidence on the basis of the inconsistency. This inconsistency is significant and undermines the credibility of his other evidence.
During cross-examination, Mr Tarin Kumar had difficulty in answering fairly simple questions that were put to him, notwithstanding the fact he had the assistance of an Interpreter. The Court formed the view that he was not a reliable witness and that his evidence should be given little weight. The Court rejects his evidence that he saw Mr Kumar give the complainant a termination notice on 18 December 2015. The Court is satisfied that Mr Tarin Kumar has tailored his evidence to support his uncle.
Evidence of Ms Jasvir Kaur
Ms Kaur is the wife of Mr Tarin Kumar. In her first Affidavit, filed 10 December 2018, she deposes that she came to Australia on a Student visa in 2009. In 2012, she applied for a job as a restaurant manager with Bikaner. She was interviewed by Mr Kumar, who offered her the position, and further agreed to sponsor her for a Subclass 457 visa to enable her to remain in Australia and work.
Ms Kaur was initially employed at the Blue Ginger Club. While there, she met and later married Mr Tarin Kumar. Following the closure of the Blue Ginger Club in 2015, Ms Kaur began working at Bricklane. She states that she became aware that Mr Sharif was a Director of the company operating Bricklane, in addition to Mr Kumar. While she reported to Mr Sharif on a daily basis, Mr Kumar visited Bricklane on a weekly basis.
Ms Kaur deposed that she checked the timesheets filled in by employees, including the complainant. She claims to have worked 38 hours per week with the complainant working roughly the same hours.
Ms Kaur deposes, leading up to 9 February 2016, she overheard conversations between Mr Kumar and Mr Sharif in which Mr Kumar was complaining as to the lack of skills of the complainant as a cook.
Ms Kaur further deposes that on 18 December 2015, she saw Mr Kumar give the complainant a letter, saying “you have two weeks to finish”. After this, she deposes that she still saw the complainant working at Bricklane.
In a second Affidavit filed 23 September 2021, Ms Kaur deposes that the complainant always reported to Mr Sharif while working and that he never arrived prior to 5:00PM daily. She also denies having any telephone conversation with the complainant on 10 February 2016.
In cross-examination, Ms Kaur admitted that she had talked with her husband, Mr Tarin Kumar, about the case prior to giving evidence (transcript p323 line 25-45). She later sought to deny she had discussed her evidence with her husband and denied that she had tailored her evidence to suit the narrative being put forward by Mr Kumar.
It is to be noted that Mr Tarin Kumar clearly stated he had never discussed his evidence with anyone else, including Ms Kaur. To the extent that her evidence differs in this regard, the Court accepts and prefer her evidence to that of Mr Tarin Kumar.
For the reasons indicated, in relation to rejecting the evidence of Mr Sushil Kumar, the Court also rejects Ms Kaur’s evidence to the extent that it supports that of Mr Kumar, and prefers the evidence of the complainant. The Court does not accept her evidence that the complainant was given a termination notice on 18 December 2015. The Court also finds that she has tailored her evidence to support that of Mr Kumar.
Do the Default Declarations against Bikaner bind Mr Sushil Kumar?
On behalf of the FWO, it was submitted that the declared contraventions made against Bikaner, by way of default judgement, entered by Gilmore J bind all parties to the proceedings: (see; Martin v Taylor [2000] FCA 1002 at [32], citing Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51). Courts have resisted making declarations based on admissions where there is a possibility of inconsistent factual findings being made: (see; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17).
Reference was also made to Fair Work Ombudsman v Lohr [2018] FCA 5 (“Lohr") in which Bromwich J considered the effect of declarations made by way of default judgement against a primary contravener on an alleged accessory to the contraventions. At [22], Bromwich J stated:
Given the weight of the authority that suggests that declarations are binding on all parties to a proceeding provided that they have been given an opportunity to be heard, the only barrier to that legal position applying in this case was the reasoning of the primary judge as to the effect of [rules]… proper inquiry was not directed to the operation of the rules of Court in relation to how a default judgment can be entered, including as to orders and declarations, but, rather, was directed to the legal effect of a declaration once made, relying upon the terms of those rules. The trigger mechanism for making such declarations does not and cannot operate to confine their legal effect and impact.
It was submitted that the following principles were referred to:
1. Firstly, it is well established that a declaration should not generally be made unless all persons interested in the declaration are made parties to the application (and therefore, have the opportunity to be heard): (see; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 at 942);
2. Secondly, a decision whether to grant or refuse declaratory relief in the absence of a necessary party is a matter of discretion: (see; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 at 443); and
3. Declarations only bind parties to a proceeding: (see; Martin v Taylor [2000] FCA 1002 at [32]).
In finding that the declarations were binding upon Mr Lohr, the accessory to those proceedings, Bromwich J held that while Mr Lohr had not been legally represented at the time, it was sufficient that Mr Lohr was served with the default application, and therefore had the opportunity to be heard and present his case in opposition to the application, even when he did not in fact attend the hearing: (see; Lohr at [21]-[22]).
On behalf of Mr Kumar, it was submitted that he had been denied the opportunity to be heard at the time when the default orders against Bikaner were made. He attended Court on
4 December 2017 but failed to appear at the listing due to what he claims was an administrative error. Thus, the decision in Lohr is not applicable to the circumstances of this case.
On behalf of the FWO, it was put that the facts in Lohr are analogous to the facts in this case.
The Court notes that Mr Kumar did not seek to set aside the default judgement against Bikaner, nor was any appeal lodged against that judgement, Further, Mr Kumar availed himself of a mechanism to reverse the orders made by Bromwich J by filing an interlocutory application on 27 November 2019 seeking to set aside the default orders. That application was dismissed by Judge Altobelli (as he was then) of this Court on 6 December 2019.
In the current circumstances, the Court considers that it is bound by the principles discussed above in Lohr. Further, given Mr Kumar took no action in the Federal Court to set aside or appeal the judgement of Gilmore J and has had the opportunity to be heard on an application in this Court to set aside those orders, there is no reason why this Court would or should seek to go behind the judgement of then Judge Altobelli and find that Mr Kumar is not bound by the orders of Gilmore J.
The Court notes that the FWO also rely upon the principles of issue estoppel and res judicata. Mr Kumar submits these do not apply. It is not necessary to consider these in detail given my finds above, other than to say they also support the position of the FWO that Mr Kumar is bound by the declarations against Bikaner.
Even if the Court wrong in this regard, for the reasons that appear below, the Court is satisfied on the basis of the evidence before the Court, that the FWO has proven each of the alleged contraventions against Bikaner and Mr Kumar.
Is Mr Sushil Kumar Liable as an Accessory to the Contraventions?
Accessorial liability is covered by s 550 of the Act. That section reads as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
On behalf of Mr Kumar it was submitted that the requisite knowledge required is actual rather than constructive knowledge. Reliance was placed on Yorke v Lucas (1985) 158 CLR 661 at 669-670. The mere fact that a person was a director of a company found to have engaged in a contravention is not sufficient to establish knowing involvement: (see; Australian Securities & Investments Commission v Maxwell (2006) 59 ACSR 373 at [92]).
There is some difference in the authorities as to what is required to prove knowledge. In Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810 at [25] (“Blue Impression”) Judge O’Sullivan held that:
The authorities established that, in order for a person have accessorial liability, he or she must be a knowing participant or, in other words:
a.have knowledge of the essential facts constituting the contravention;
b.must be knowingly concerned in the contravention;
c.must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient under s550(2)(c) of the FW Act in cases of wilful blindness; and
d.need not know the matters in question constituted a contravention.
In relation to the requirement of knowledge, in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342 at [400] per White J, the following was said:
Proof that a person had actual knowledge of each of the essential elements making up the contravention may be derived from direct evidence but more commonly will be a matter of inference from all the circumstances found to be proved. In some cases, actual knowledge can be inferred from the combination of a defendant’s knowledge of suspicious circumstances and the decision by the defendant not to make inquiries to remove those suspicions. The High Court referred to knowledge in these circumstances in Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 220:
[A] combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as “wilful blindness”. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.
In the Court’s view, in an underpayment case, the better view is that it is not necessary that the accessory knew of the existence of the applicable Award or what its terms were or that what was being paid was below Award rates, knowledge of what was in fact being paid is sufficient: (see; Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209 at [1019] (“Grouped”); Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [128] (“Parker”)).
In Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamCG2 934 at [90] (“Chatime”), Judge Mansousaridis had the following to say as to knowledge (citations omitted):
Mr Zhao submits that the view expressed by Katzmann J in Grouped Property Services is obiter, whereas in Potter, Cowdroy J relied on the view that it was necessary to prove knowledge of an award before a person could be held to be involved in a contravention of the award; and, for that reason, this Court is bound to follow Potter.[151] On a strict application of the principles of precedent, Mr Zhao is correct.
The above should be compared with what His Honour said in Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No 2) [2018] FCCA 2299 at [267]-[282].
The Court’s view, is that it should not follow Chatime, but follow the line of authority that commences with Grouped and Parker as the Full Federal Court endorsed the view of Flick J in Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [14]. In Parker, Flick J concluded at [128]:
… Where the contravention in question is a contravention of s 50, that section does not require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the “elements” of s 50 do not encompass those matters, it is — with respect — difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct. (emphasis added).
In the Court’s view, the decision of Flick J in Parker is the better alternative, that it is not necessary for the accessory to be shown to have knowledge of the relevant Award.
Even if the Court is wrong in this, it is reasonably satisfied, based on the totality of the evidence, that Mr Kumar had actual knowledge of the relevant Award, the business affairs as they pertain to the running of Bricklane at the relevant times and was knowingly involved in the relevant decisions as they relate to the pleaded breaches.
Failure to Comply with the rule in Browne v Dunne
On behalf of the FWO, it was put that Counsel for Mr Kumar failed to comply with Browne v Dunne (1894) 6 R 67 (“the Rule”) in a number of areas.
The Rule is best described in the judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at [16] who observed:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matter, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the inference sought to be drawn.
It was submitted by Counsel for the FWO, that it was never put to the complainant that:
a. the meeting on 1 August 2015 with Mr Kumar did not occur;
b. Mr Kumar did not say the things alleged by the complainant regarding his work hours and conditions; and
c. The complainant did not pay cash back to Mr Kumar and/or Tarin Kumar or Jasvir Kaur during the period of his employment.
In respect of Mr Bhatia’s evidence it was not put to him that:
a. Mr Kumar did not request a one off service for the preparation of the payslips given to the FWO;
b. Mr Kumar did not give to Mr Bhatia a USB at the offices of CNR Accounting in around August 2016;
c. That the USB did not contain the ledger entries used to prepare the payslips; and
d. That the payslips were not created based on the ledger entries.
In respect of Ms Girach’s evidence, it was not put to her that the transcript of the Record of Interview was not a true and correct record of her conservation with Mr Kumar on 19 December 2016. In particular, this relates to the claim by Mr Kumar that he was ‘forced’ to participate in the record of interview and could not terminate it at any time.
On behalf of Mr Kumar, it was submitted that the Rule does not apply where a witness is on notice that their version of events is challenged or that such an inference can be drawn against them. Such notice may be found in pleadings, or in an opening or by the conduct of the matter: (see; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-5, 236). It was submitted the extensive Affidavit evidence filed by the respondents placed the FWO on notice as to what aspects of the evidence to be relied upon was disputed.
The Court does not accept that the respondent clearly and unequivocally indicated the matters set out above would be disputed and the basis for that dispute.
The Court accepts that, in circumstances where the Rule has not been complied with, the Court is entitled to exercise a higher degree of caution before making findings on contested matters which depart from the evidence given by the applicant’s witnesses in relation to those matters. The Rule does not mean that evidence led by the respondent should be rejected entirely simply by the failure to comply with the Rule. The evidence has been considered on that basis.
Knowledge by Mr Kumar of the provisions of the relevant Award
Mr Kumar has given evidence of a long involvement with the restaurant industry, running many restaurants. The Court is satisfied, as an experienced company Director in the restaurant field, that Mr Kumar had actual knowledge of the relevant provisions of the Award, including requirements, for example, the payment of annual leave on termination, the requirement for payslips to be provided and the requirement for regular payments for time worked.
Consideration
This matter is document rich. The Court has preferred the contemporaneous documentary evidence to the later recall of witnesses where there is inconsistency between the documentary evidence and the latter recall of witnesses.
According to Westpac, Mr Kumar was the sole signatory to the business bank account. No documentary evidence has been produced as to the capacity of Mr Sharif to operate the Westpac account remotely.
At Q653 of his record of interview, set out above, Mr Kumar admitted, prior to the resignation of Mr Sharif as a Director of Bricklane on 18 December 2015, the he was aware of a failure to pay employees and suppliers prior to that date. This indicates Mr Kumar was involved with the administration of the business at all times. Further, evidence from the complainant, which the Court accepts, indicates that Mr Kumar attended the restaurant on a frequent basis, at least weekly and in many cases multiple times in any one week.
The Court finds as a fact that Mr Kumar provided the FWO with fabricated payslips, produced following a request from the FWO for payslips in respect of the complainant. In so doing, Mr Kumar sought to manufacture evidence that might support a false narrative on his part. The dates in the payslips clearly do not match the payment dates in the complainant’s bank account and the bank account of Bikaner from which the payments were made. The dates on the ledger provided to Mr Bhatia also do not correspond to the payment dates on the Westpac bank account records.
The Court does not accept the explanation proffered by Counsel for Mr Kumar that he felt pressured to provide documents sought by the FWO, including the payslips, and that Mr Kumar had a genuine belief that in providing the payslips produced by Mr Bhatia, he was attempting to assist the FWO rather than deceive.
The Court is also satisfied that the handwritten termination notice, dated 18 December 2015, is a later fabrication and was not given to the complainant on 18 December 2015. It is simply not credible that Mr Kumar would have been terminated from his employment but to have continued working in January and been paid, bearing in mind, that post 18 December 2015 Mr Sharif had resigned as a Director, and Mr Kumar had sole responsibility for running the restaurant. It is also nonsensical that, if the complainant was terminated on 18 December 2015, and Mr Kumar had a copy of that termination note, that he would later create two further letters terminating the complainant on either 9 February 2016 or later in June 2016.
The Court finds that the purported termination letter of the complainant on 18 December 2015 was created so as to provide false evidence that the complainant was not terminated for the reason of having lodged a workers compensation claim. The 18 December 2015 date is also very convenient, in that it supports the false narrative that all the issues and contraventions, if there were any, which Mr Kumar denies, were the fault of Mr Sharif and not Mr Kumar.
In his oral evidence, Mr Kumar was evasive and appeared to be unable, even with the assistance of an Interpreter, to agree with simple propositions being put to him in cross examination. The Court rejects Mr Kumar as a witness of truth. The Court rejects his evidence where it does not align with that of the complainant.
The Court also rejects the evidence of Ms Kaur and Mr Tarin Kumar. The Court finds they are not witnesses of truth and have tailored their evidence to support the false narrative put forward by Mr Kumar. Mr Tarin Kumar denied speaking to his wife about their evidence. Ms Kaur admitted they had.
Bearing the above in mind, the Court now turns to the evidence it accepts and the conclusions it leads to in relation to each of the contraventions alleged.
Contraventions 1: Minimum Rates of Pay
The Court is satisfied that Mr Kumar had, at all relevant times actual, detailed knowledge of the business affairs of the restaurant. The Court rejects the claim by Mr Kumar that the business was entirely administered by Mr Sharif. That was certainly not the case post 18 December 2015, when Mr Sharif resigned as a Director. In any event, Mr Kumar was the only signatory to the business bank account from which the complainant’s wages were paid.
The Court accepts that the hours of work and the pay the complainant was to receive were explained to him by Mr Kumar when he commenced work at the Bricklane. The Court is satisfied, based on his long experience in the restaurant industry, as well as admissions made in cross-examination (transcript p 222), that Mr Kumar was aware of the minimum rates of pay and that the complainant was not receiving those minimum rates. This contravention is made out.
Contravention 2: Public Holiday Penalty Rates
The Court is satisfied that Mr Kumar was aware of the Award and the provisions for the payment of penalty rates for work performed on public holidays. The Court accepts that Mr Kumar was aware the complainant worked on public holidays. The Court accepts the complainant’s evidence that he was not paid any penalty rates for work performed on public holidays. This is supported by the fact that those wage payments made to him were always in the same amount. The contravention is made out.
Contravention 3: Payment for Public Holidays not worked
The Court is satisfied that the complainant was not terminated on 18 December 2015. The Court is further satisfied that Mr Kumar was aware the complainant did not work on 25 December 2015. The Court is satisfied Mr Kumar was aware of the relevant Award provision that employees were required to be paid for public holidays not worked. The Court is satisfied Mr Kumar was aware the complainant was not paid for the public holiday not worked (transcript p244-245). The contravention is made out.
Contravention 4: Evening Penalty Rates
The Court is satisfied, based on the complainant’s evidence, that the complainant worked after 10:00PM and was not paid any penalty rates for work after that time. The Court is satisfied that that Mr Kumar was aware of that fact and of the requirement under the Award for the payment of penalty rates for work performed after 10:00PM. The contravention is made out.
Contravention 5: Monday to Friday Overtime Rates
Based on the complainant’s evidence, the Court is satisfied that the complainant worked hours Monday to Friday that attracted overtime rates. The Court is satisfied that he was not paid additional amounts in respect of those hours which attracted overtime rates. The Court is satisfied that Mr Kumar was aware of the need to pay the complainant overtime rates in respect of overtime worked on a Monday to Friday and he was not paid those rates. The contravention is made out.
Contraventions 6: Saturday Overtime Rates
Based on the complainant’s evidence, the Court is satisfied that the complainant worked hours on a Saturday that attracted overtime rates. The Court is satisfied that he was not paid additional amounts in respect of those hours on a Saturday which attracted overtime rates. The Court is satisfied that Mr Kumar was aware of the need to pay the complainant overtime rates in respect of overtime worked on a Saturday and he was not paid those rates. The contravention is made out.
Contravention 7: Sunday Overtime Rates
Based on the complainant’s evidence, the Court is satisfied that the complainant worked hours Monday to Friday that attracted overtime rates. The Court is satisfied that he was not paid additional amounts in respect of those hours which attracted overtime rates. The Court is satisfied that Mr Kumar was aware of the need to pay the complainant overtime rates in respect of overtime worked on a Sunday to Friday and the complainant was not paid those rates. The contravention is made out.
Contravention 8: Eight Full Days off per Four Week Period
Based on the totality of the evidence, the Court is reasonably satisfied that Mr Kumar knew of the requirement at clause 31.2(e) of the Award for the complainant to have 8 full days off per 4 week period. The Court is also reasonably satisfied that Mr Kumar was responsible for setting the days of work for the complainant and was aware that the complainant was not being given 8 full days off per 4 week period in accordance with the Award. The contravention is made out.
Contravention 9: Payment of Wages Weekly or Fortnightly
Clause 27.2 of the Award requires that payments for wages be made each fortnight or weekly. Mr Kumar admitted in cross-examination that he was aware of this requirement (transcript page 223). The Court is reasonably satisfied that Mr Kumar was responsible for the payment of wages given his role as the sole Director of Bikaner from 18 December 2015 and as an active participant in the running of the restaurant from the time the complainant was employed there. Further, he was the sole signatory to the Westpac account from which wages were paid.
The clear evidence from the bank account statements of the complainant, which are supported by the Westpac account of Bikaner from which wages were paid, indicates wages were not paid weekly or fortnightly as required. The Court is satisfied that Mr Kumar had actual knowledge of this. The contravention is made out
Contravention 10: Payment of Superannuation Contributions
Mr Kumar admitted that he was aware of the requirement under clause 30.2(a) of the Award of the requirement to make superannuation contributions in respect of the complainant (transcript p223) and that the complainant was not paid superannuation during his employment with Bikaner (transcript p224).
Based on Mr Kumar’s role in the running of the restaurant prior to 18 December 2015 and as the sole Director of Bikaner post 18 December 2015, the Court is satisfied that Mr Kumar had knowledge of and was involved in the failure of Bikaner to make superannuation contributions in respect of the complainant. The contravention is made out.
Contravention 11: Unreasonable Requirement to Spend
To establish a contravention of s 325(1) of the Act, the Court needs to be satisfied first Mr Kumar participated in and had knowledge that the complainant was required to spend an amount payable to him in relation to the performance of his work. Secondly, that the payment was unreasonable and thirdly, that was directly or indirectly for the benefit of the employer or a related party.
The Court accepts the complainant’s evidence that he was required to make a cash back payment of $434 on each occasion he was paid wages, from 14 August to 20 December 2015. The Court is satisfied that this payment was such that the complainant was not paid his contractual salary and was paid a wage less than the Award required.
The Court accepts the complainant’s evidence these payments were made to Mr Kumar, Mr Sharif or Ms Kaur. The Court rejects the evidence of Ms Kaur and Mr Kumar that these payments were not made. The Court is satisfied that Mr Kumar knew of these payments when they were not made to him and they benefited the employer or a related party.
The Court notes Mr Kumar admitted that he knew that such a payment was unlawful (transcript pages 224 and 228). The Court finds, in the light of this admission, that Mr Kumar knew such a payment would be unreasonable. The contravention is made out.
Contravention 12. Failure to Pay at All
Based on the evidence of the complainant, the Court is satisfied that the complainant worked for Bikaner at Bricklane during the period 15 January 2016 and 9 February 2016. The Court is also satisfied the complainant was available and ready to work for Bikaner at Bricklane during the period 4 April to 10 June 2016.
The Court is satisfied that Mr Kumar was the person who decided to stop paying the complainant from 9 February 2016, (transcript pages 171-172). The Court is further satisfied that Mr Kumar was the only person who could have made that decision, given he was the sole Director of Bikaner from 18 December 2015 and the sole signatory of the Westpac account from which wages were paid. The Court is satisfied Mr Kumar knew the complainant was not paid between 3 April and 10 June 2016 (transcript page 247) and that the complainant was still employed by Bikaner during that period. The Court notes that it has rejected the claim that the complainant was terminated on 18 December 2015 and find he was not terminated until 10 June 2016, as set out in the second set of termination letters. The contravention is made out.
Contravention 13: Failure to Pay Annual Leave on Termination
To prove a contravention of s 90(2) of the Act, the Court must be satisfied that Mr Kumar participated in and had knowledge that the complainant had accrued annual leave hours and that he was not paid his annual leave entitlements upon termination.
At the time of the complainant’s termination in June 2016, Mr Kumar was the sole Director of Bikaner and responsible for all matters pertaining to the payment of employees, including being the sole signatory on the bank account from which payments were made.
Mr Kumar admitted that he was aware an employer was required to pay annual leave entitlements upon termination (transcript page 224), and that the complainant was not paid these entitlements on termination. The contravention is made out.
Contravention 14: Failure to Keep Records
To prove that Mr Kumar was involved in Bikaner’s contraventions of s 535(1) of the Act, the Court must be satisfied first, that Mr Kumar was responsible for the making and keeping of records relating to the complainant’s employment and second, that the required records were not kept.
The Court has already found that Mr Kumar was involved in and responsible for the administration and running of Bikaner during the time of the complainant’s employment from August 2015, and was solely responsible from 18 December 2015 following the resignation of Mr Sharif and Ms Sharif as Directors.
Mr Kumar admitted that he knew at the time an employer was required by law to keep certain records in relation to its employees (transcript page 247). Further, that failing to keep such records would be breaking the law and, as a Director, he would be breaking the law if the records were not kept. It was submitted, and the Court accepts, that Mr Kumar knew the various records which were required to be kept by Bikaner were not kept in relation to the complainant (transcript pages 226-228 , 249). The contravention is made out.
Contravention 15: Failure to Issue Payslips
In order to find this contravention proven, pursuant to s 536(1) of the Act, the Court need to be satisfied that Mr Kumar participated in and had knowledge first that the complainant was paid by Bikaner in relation to the performance of work during the employment period. Second, the Court needs to be satisfied that payslips were not issued to the complainant within 1 working day of being paid.
The Court has already found above that payslips were only created by Mr Bhatia based on information given to him by Mr Kumar in late 2016, following a request from the FWO for payslips to be provided to it in relation to the complainant. As such, the Court is satisfied they were not provided at all to the complainant during his period of employment, let alone within 1 day of the date of payment.
The Court is satisfied that Mr Kumar knew of the requirement for the provision of payslips within 1 working day of payment (transcript pages 207 and 219-220). The Court is also satisfied that, given his role in the administration of Bikaner during the complainant’s period of employment, Mr Kumar was involved in the failure to issue payslips to the complainant. The contravention is made out.
Contravention 16: Taking Adverse Action
In order for the contravention to be proven, pursuant to s 340(1) of the Act, the Court needs to be satisfied, first, that the complainant exercised his right to make a worker’s compensation claim. Second, that Mr Kumar was knowingly concerned in the termination of the complainant by Bikaner from his employment on 10 June 2016. Third, that a substantial and operative reason for the adverse action was for a prohibited reason.
The Court has already accepted that the complainant was not terminated from Bikaner until 10 June 2016 and that the purported termination letter of 18 December 2015 is a later fabrication. In support of this, the Court notes Mr Kumar admitted that he was aware of his obligation as an employer to notify the Department of Immigration on behalf of the first respondent that the complainant’s employment had ceased, given the complainant was on a Subclass 457 visa.
The Court notes that Mr Kumar made an admission that he could not dismiss an employee because they had made a workers compensation claim (transcript pages 226 and 228). He also admitted that he knew the complainant had injured himself at Bricklane around 9 February 2016 and might make a worker’s compensation claim. He admitted that he saw a workers compensation claim in the first week of June 2016 (transcript p263). Lastly and significantly, Mr Kumar admitted that he was the person who determined that the complainant would not be permitted to return to work.
The Court has already found that the termination letter of 18 December is a later fabrication. The Court is reasonably satisfied that this was an attempt to create a document that supported a false narrative that the complainant was terminated before he injured himself at work and thus the reason for the termination was not related to the workers’ compensation claim. The Court is satisfied the contravention was made out.
Conclusion
The Court is reasonably satisfied that Mr Kumar was involved in, within the meaning of s 550 of the Act, in each of the contraventions set out above. The Court grants the orders set out at the beginning of this judgement including, pursuant to s 545(2)(b) of the Act, that Mr Kumar pay to the applicant, on a joint and several liability basis, within 28 days of this order, the sum of $38,822.68 to the complainant. Further, Mr Kumar pay, also within 28 days, on behalf of the complainant, to the complainant’s nominated superannuation fund, superannuation guarantee charges due in respect of the unpaid wages of $38,822.68.
The matter will be listed for directions as regards the filing of evidence to enable the Court to determine appropriate pecuniary penalties for the contraventions found proven.
Should any of the orders made not be complied with, The Court grants the FWO liberty to apply on 3 days’ notice.
I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 24 January 2023
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