Fair Work Ombudsman v Siner Enterprises Pty Ltd
[2017] FCCA 2583
•26 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v SINER ENTERPRISES PTY LTD & ANOR | [2017] FCCA 2583 |
| Catchwords: PRACTICE AND PROCEDURE – Application by a corporation to be represented by a non-lawyer – consideration of relevant factors in exercising discretion. |
| Legislation: Fair Work Act 2009 (Cth), Pt.3-1, Div.3, ss.12, 44, 90, 96, 97, 99, 117, 340, 341, 342, 351, 352, 360, 361, 535, 538, 539, 545, 546, 547, 550, 687, 701, 712 Fair Work (Registered Organisations) Act 2009 (Cth) |
| AA Shi Pty Ltd v Avbar Pty Ltd (No. 4) [2010] FCA 878 Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363, (2012) 90 ATR 24; (2012) 127 ALD 64 Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd [2012] FMCA 835 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; (2001) 33 MVR 399; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476 Qantas Airways Limited v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 211 IR 1; (2011) 280 ALR 503; (2011) 62 AILR 101-349 Sheahan v Northern Australia Land & Agency Co Pty Ltd (unreported, Supreme Court of South Australia, Perry J, No S3815, 4 February 1993) Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | SINER ENTERPRISES PTY LTD |
Second Respondent: | SIMON PETER MACKENZIE |
| File Number: | PEG 123 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 4, 5 and 8 September 2014 |
| Date of Last Submission: | 8 September 2014 |
| Delivered at: | Perth |
| Delivered on: | 26 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Raper |
| Solicitors for the Applicant: | The Office of the Fair Work Ombudsman |
| For the First Respondent | No appearance |
For the Second Respondent: | Mr SP Mackenzie in person |
DECLARATIONS AND ORDERS
The Court declares that the First Respondent contravened:
(a)clause 20.1 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh the minimum rate of pay for the period 18 May 2012 to 18 September 2012;
(b)clause 27.2 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh wages, penalties and allowances weekly, fortnightly or monthly for the period 18 May 2012 to 18 September 2012;
(c)clause 34.1 and 34.2 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh penalty rates for the period 18 May 2012 to 18 September 2012;
(d)clause 33 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh overtime penalty rates for the period 18 May 2012 to 18 September 2012;
(e)section 90(2) of the Fair Work Act 2009 (Cth) and clause 35 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh annual leave and annual leave loading on termination of employment;
(f)section 117 of the Fair Work Act 2009 (Cth) and clause 16.1 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh one week’s notice on termination;
(g)clause 32.1 of the Restaurant Industry Award 2010 by failing to pay Mr Gurprit Singh meal breaks for the period 18 May 2012 to 18 September 2012;
(h)section 340(1) of the Fair Work Act 2009 (Cth) by terminating Mr Gurprit Singh’s employment, thereby taking adverse action against him, for exercising his workplace right to utilise a period of personal leave on 18 September 2012;
(i)section 352(1) of the Fair Work Act 2009 (Cth) by terminating Mr Gurprit Singh’s employment, thereby taking adverse action against him, for being temporarily absent due to illness or injury on 18 September 2012;
(j)section 712(3) of the Fair Work Act 2009 (Cth) by failing to comply with a Notice to Produce dated 18 December 2012; and
(k)section 535(1) of the Fair Work Act 2009 (Cth) by failing to keep proper employment records in relation to the employment of Mr Gurprit Singh for the period 18 May 2012 to 18 September 2012.
The Court further declares that the Second Respondent was involved in the contraventions of the First Respondent as set out in Order (1), and in accordance with s.550 of the Fair Work Act 2009 (Cth) the Second Respondent is thereby taken to have contravened those provisions himself.
The Court orders that:
(a)pursuant to s.546(1) of the Fair Work Act 2009 (Cth) the First Respondent and the Second Respondent be jointly and severally liable to pay to the Consolidated Revenue Fund of the Commonwealth pecuniary penalties in respect of the contraventions by them of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) in any amount to be assessed by the Court at a penalty hearing;
(b)pursuant to s.545(1) of the Fair Work Act 2009 (Cth), that the First Respondent and the Second Respondent be jointly and severally liable to pay to Mr Gurprit Singh the amount of $12,075.62 less tax, as the total underpayment owing to Mr Singh (“Underpayment Amount”) to be paid within 30 days;
(c)pursuant to s.547 of the Fair Work Act 2009 (Cth), that the First Respondent and the Second Respondent be jointly and severally liable to pay interest on the Underpayment Amount payable at the applicable rate specified in clause 2.2 of the Federal Court Practice Note GPN-INT, to be paid within 30 days;
(d)that the First Respondent and the Second Respondent be jointly and severally liable to make contributions on behalf of Mr Gurprit Singh to Mr Singh’s nominated superannuation fund in respect of the ordinary time earnings component of the payments made pursuant to Order 3(b) above at the superannuation guarantee charge rate prescribed by applicable superannuation legislation as at the date these orders are made, those contributions to be made within 30 days; and
(e)pursuant to s.545(2) of the Fair Work Act 2009 (Cth), that the First Respondent and the Second Respondent be jointly and severally liable to pay Mr Gurprit Singh damages for economic and non-economic loss in any amount to be assessed by the Court at the penalty hearing.
In relation to a penalty hearing:
(a)the Applicant file and serve any further affidavits by 16 November 2017;
(b)the First Respondent and the Second Respondent file and serve any further affidavits by 7 December 2017;
(c)the Applicant file and serve an outline of submissions by 14 December 2017;
(d)the First Respondent and Second Respondent file and serve an outline of submissions by 21 December 2017; and
(e)it be listed for hearing at 10.15am on 17 January 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 123 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| SINER ENTERPRISES |
First Respondent
SIMON PETER MACKENZIE
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the alleged underpayment of wages and entitlements under the Restaurant Industry Award 2010 (“Restaurant Award”) and the National Employment Standards (“NES”) to, and the subsequent dismissal of, Gurprit Singh (“Mr Singh”) by Siner Enterprises Pty Ltd (“Siner Enterprises”). The Reasons for Judgment also deal with a preliminary issue as to whether Siner Enterprises ought to be granted leave to appear by a non-lawyer, the second respondent, Simon Peter Mackenzie (“Mr Mackenzie”) and in respect of which leave was not granted at the hearing of the matter.
The parties
There is no dispute concerning the following facts about the parties:
a)the applicant, the Fair Work Ombudsman (“FW Ombudsman”), is appointed under s.687(1) of the Fair Work Act 2009 (Cth) (“FW Act”), and is a Fair Work Inspector by virtue of s.701 of the FW Act, and has standing under s.539 of the FW Act to apply for penalties and other orders in respect of contraventions of civil penalty provisions of the FW Act;
b)Siner Enterprises is a company registered on 25 October 2010, that was at all relevant times a “national system employer” for the purposes of the FW Act;
c)Mr Mackenzie is secretary and a co-director, together with Ms Sheila Ann Mackenzie, of Siner Enterprises, with Mr Mackenzie having the day to day management of Siner Enterprises’ business; and
d)Siner Enterprises operated an Indian restaurant trading as The Curry Tree at 161 Broadway, Nedlands in Western Australia (“Restaurant”).
Representation of Siner Enterprises
Application
At the hearing of this matter Mr Mackenzie made an application to appear as a non-lawyer for Siner Enterprises. The application was made orally and briefly at hearing where Mr Mackenzie said that:
a)the lawyer that had been acting for Siner Enterprises and Mr Mackenzie had:
i)through disorganisation not been able to “close this matter”; and
ii)given him a bill beyond what “I actually even owe the employee or what he tries to say that I owe him”; and
b)he had made contact with a pro bono team and only heard three days prior to the hearing that they were unable to have someone present for the hearing.
Law
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Rule 9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
Save for r.9.04 of the FCC Rules there is no regulation or other law of the Commonwealth which would authorise Mr Mackenzie to appear on behalf of Siner Enterprises.
As this Court observed in Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423 at [17] per Judge Lucev (“Wong”):
a)there is nothing in the FW Act or the Fair Work (Registered Organisations) Act 2009 (Cth) which precludes a corporation from seeking leave to appear other than by a lawyer under r.9.04 of the FCC Rules: Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189; (2011) 63 AILR 101-337 at [16]-[23] per Lucev FM, and
b)the requirement that a corporation must not proceed other than by a lawyer “cannot be ignored”: Anying Group Pty Ltd v Wang [2012] FCA 702 at [19] per Flick J.
The purpose underlying legislative provisions such as s.44 of the FCCA Act and r.9.04 of the FCC Rules is to ensure that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM (“Alcantara”). Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”). Incorporation confers many benefits on those connected with a corporation; and also imposes some corresponding burdens, one of which is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] per French J; Wong at [18] per Judge Lucev.
In determining whether to grant leave under r.9.04 of the FCC Rules, the applicability of a number of factors, which are not exhaustive, but include the following, are to be considered:
a)the relative complexity or simplicity of a matter;
b)whether a non-lawyer appears, or has previously appeared, for any of the parties;
c)the objects and purposes of the FCCA Act and FCC Rules, including the impact of those objects and purposes on case management considerations;
d)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;
e)whether there has been appropriate opportunity to arrange legal representation;
f)the financial position of a party; and
g)whether the granting of leave to appear is opposed.
Wong at [19] per Judge Lucev.
Discretion of the kind contained in r.9.04 of the FCC Rules must be exercised judicially and having regard to all relevant considerations: Molnar Engineering FCR at 73 per Smithers J; Wong at [20] per Judge Lucev. In the exercise of such discretion it is not necessary for each factor to be given equal weight: Wong at [20] per Judge Lucev.
Complexity
Some hint of the nature of the legal and factual complexity of this matter might be discerned from the fact that the statement of claim is 22 pages and 122 paragraphs long.
An examination of the statement of claim reveals that there are a number of layers of complexity to the claims made by the FW Ombudsman. First, the claims made fall into a number of different categories including, first, the alleged underpayment of entitlements; second, two separate heads of alleged contravention of general protection provisions; third record keeping and producing contraventions; and fourth, a dispute as to whether or not Mr Mackenzie is accessorially liable for the purposes of s.550 of the FW Act
The contraventions themselves allege various breaches of the FW Act and Restaurant Award in relation to minimum rates of pay, frequency of payment, payment of overtime and penalty rates, payment of annual leave and loading upon termination, payment of notice of termination, and whether or not there was an entitlement to meal breaks.
The adverse action relates to an alleged termination of employment contrary to the provisions prohibiting termination on the basis of an employee taking personal leave and, further, on the basis of an employee’s temporary absence due to illness or injury.
The alleged contraventions related to records issues relate to whether or not there was a reasonable excuse for an alleged failure to comply with a notice to produce, and an alleged failure to maintain records.
The alleged accessorial liability of Mr Mackenzie is disputed on the basis of the extent of his knowledge of the contraventions.
Overlaying the issues in relation to several areas of alleged non-payment of wages and entitlements is the question of whether or not Mr Singh was a casual employee, and a significant dispute as to whether or not, if he was an employee of any kind, as to the hours actually worked, which involves a significant evidentiary dispute as to the evidence of Mr Singh as to time worked and timesheets maintained by either Siner Enterprises or Mr Mackenzie (“Siner Enterprises’ Timesheets”).
The FW Ombudsman seeks the usual relief in the form of:
a)declarations in relation to the alleged underpayments;
b)declarations in relation to the alleged involvement of Mr Mackenzie in the contraventions;
c)orders that Siner Enterprises pay the employees the amount of the alleged underpayments, plus interest; and
d)an order that each of Siner Enterprises and Mr Mackenzie pay penalties in respect of the alleged contraventions.
It is immediately evident from the foregoing that there are a plethora of areas of dispute between the parties, and that overall the factual disputes are likely, in their totality, to be relatively complex. The complexity of the factual disputes involved is likely to be increased by the fact that there are disputes as to legal issues, or disputes concerning mixed questions of law and fact, such as whether Mr Singh is a casual employee, or whether he is a full-time or part-time employee, which appears to involve disputed questions of fact and law (and as to the complexity of such issues, see, for example, Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321; (2010) 201 IR 123; (2010) 63 AILR 101-294 at [5] and [13]-[43] per Barker J, dismissing an appeal from Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511; (2009) 182 IR 104; (2009) 231 FLR 59).
The pleadings and evidence in this case give rise to a number of legal and factual issues the nature of which adds significant complexity to the proceedings, and makes the nature of the matter significantly more complicated than it would appear at first glance.
For all the above reasons, the nature and complexity of the matter weighs significantly in favour of the discretion being exercised so as not to grant Mr Mackenzie leave to represent, or appear for, Siner Enterprises in these proceedings.
Whether a non-lawyer appears or has appeared previously for any of the parties
Opportunity to arrange legal representation
Each of the above matters can be considered together.
Siner Enterprises and Mr Mackenzie had legal representation until their lawyers withdrew three weeks before the listed hearing. Prior to their withdrawal the lawyers had prepared a Defence on behalf of Siner Enterprises and Mr Mackenzie, and two affidavits (including one from Mr Mackenzie) had also been filed, the latter as recently as slightly less than eight weeks before the listed hearing.
From the foregoing, it is evident that lawyers had been briefed to appear for and represent Siner Enterprises and Mr Mackenzie. Thus, Siner Enterprises had the opportunity to, and did arrange, legal representation by lawyers in these proceedings.
Given the nature and complexity of the matter, as set out above, see [11]-[21] above, it is not surprising that Siner Enterprises and Mr Mackenzie took the opportunity to arrange legal representation, and have their lawyers file a defence and affidavits.
The fact that lawyers have previously appeared for Siner Enterprises, taken together with the nature and complexity of the matter, and the possibility for conflict involving the interests of Siner Enterprises and Mr Mackenzie by reason of the FW Ombudsman seeking to impose accessorial liability upon Mr Mackenzie (that is a conflict between Mr Mackenzie and Siner Enterprises), weighs, in this case, against Siner Enterprises being represented by a non-lawyer, and in particular by Mr Mackenzie. For reasons which are set out below: see [34]-[39] below, that view is reinforced by reason of the Court’s comments with respect to the effectiveness of representation and prejudice likely to be suffered if Siner Enterprises is not represented by a lawyer.
The fact that Siner Enterprises has not been represented by a non-lawyer to date in these proceedings also weighs against Siner Enterprises now being so represented.
In the Court’s view, the matter is one in respect of which the assistance of a lawyer for a corporate respondent would be highly desirable and of significant assistance to the Court, and that weighs significantly in favour of the discretion being exercised so as not to grant Mr Mackenzie leave to represent, or appear for, Siner Enterprises in these proceedings.
Objects of relevant legislation and case management considerations
The objects and purposes of the FCCA Act in ss.3 and 42 and the FCC Rules in r.1.03 mean that this Court is intended to operate in a manner which:
a)is as informal as possible in the exercise of judicial power;
b)is not protracted in its proceedings;
c)resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures; and
e)avoids undue delay, expense and technicality.
The above approach reflects much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431.
In respect of the relevant legislative purpose in the context of representation of parties, that purpose is, as set out above, directed at ensuring that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes, and who have ethical duties to clients and the Courts in which they appear: see [8] above and the cases there cited.
In relation to the objects and purposes of the FCCA Act and FCC Rules set out above, those objects do not, read together with the provisions of s.44 of the FCCA Act and r.9.04 of the FCC Rules, operate to diminish the importance of corporations being legally represented. In any event, in this matter the opportunity for the resolution of the matters informally and without protraction has probably already passed given that the proceedings have been on foot since the filing of the application and statement of claim in June 2013, and that by reason of the nature of the statement of claim and the defence, the factual and legal issues are complex, for reasons set out above: see [11]-[21]. In those circumstances, and having regard to the Courts comments on the effectiveness of representation and prejudice set out below: see [34]-[39], these proceedings are less likely to be resolved justly, efficiently and economically, and without undue delay and the incurring of greater expense than is necessary, if a non-lawyer were to appear for Siner Enterprises. Technicality cannot be avoided in these proceedings because of their nature. The Court, irrespective of whether lawyers appear, endeavours to adopt streamlined procedures, but, again, a non-lawyer appearing for Siner Enterprises is, in the Court’s view, less likely to assist with the streamlining of procedures in a technical case.
Although Mr Mackenzie did not seek an adjournment, the Court has taken into consideration the fact that an adjournment of the proceedings at the time of hearing would necessitate their re-listing for a further three days at some time in the future, which would result in a further delay of certainly more than six months, and possibly more than a year, before the matter could be restored to the lists, a delay which is contrary to the objects set out in the FCCA Act and FCC Rules.
For all of the above reasons, the Court is of the view that the relevant legislative purpose, as well as case management considerations, does not favour the appearance of a non-lawyer for Siner Enterprises.
Effectiveness of representation and prejudice
There is nothing in Mr Mackenzie’s appearance seeking leave to appear as a non-lawyer, or otherwise, which would indicate to the Court that Mr Mackenzie would be able to effectively:
a)deal with the complex legal and factual issues likely to arise in these proceedings, particularly where the factual and legal issues appear to be in significant dispute: see [11]-[21] above;
b)make relevant and helpful opening and closing submissions in relation to the law and facts; and
c)properly cross-examine any witnesses who appear for the FW Ombudsman.
Further the very limited submissions which were made as to why the Court might grant a non-lawyer leave to appear for Siner Enterprises were, frankly, unhelpful: see Transcript day 2 at page 2.
This is not one of those relatively simple cases in which a non-lawyer might appear for a corporation: London City Equities Ltd v Penrice Soda Holdings Ltd (No. 3) [2012] FCA 361 at [4]-[8] per Robertson J; Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363, (2012) 90 ATR 24; (2012) 127 ALD 64 at [4]-[8] per Robertson J; Alcantara at [25] per Lucev FM; and see also McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239.
It might be argued that to deny Mr Mackenzie leave to appear for Siner Enterprises would be to deny Siner Enterprises the ability to exercise its right to appear, and even though Mr Mackenzie may not be entirely effective and Siner Enterprises might suffer prejudice if leave was granted to Mr Mackenzie to represent, and appear for, Siner Enterprises, greater prejudice would be suffered if Siner Enterprises were to not appear. That proposition ignores the primary legislative purpose of s.44 of the FCCA Act and r.9.04 of the FCC Rules that a corporation must be represented by a lawyer, and also assumes that Mr Mackenzie’s representation and appearance might be in some way effective on behalf of Siner Enterprises. If, however, Mr Mackenzie appears and is ineffective in his appearance it will lack utility, and arguably be prejudicial to Siner Enterprises, and as such Mr Mackenzie’s appearance for Siner Enterprises would be neither meaningful nor workable for the benefit of Siner Enterprises: AA Shi Pty Ltd v Avbar Pty Ltd (No. 4) [2010] FCA 878 at [35] per Collier J, nor might it be of assistance to the Court. Albeit that Mr Mackenzie’s appearance before the Court has been limited, the Court is not prepared to assume that less prejudice would be suffered by Siner Enterprises if Mr Mackenzie were to represent Siner Enterprises at the final hearing than if Siner Enterprises were unrepresented.
Another difficulty with Mr Mackenzie effectively representing Siner Enterprises is the likelihood that he will be both advocate and witness in the proceedings. It is difficult to envisage how, in the circumstances pleaded, Mr Mackenzie might avoid giving evidence, unless no evidence is put on behalf of Siner Enterprises. The undesirability of a person being both witness and advocate for a party in a case where the facts are not simple, and where serious issues and potential conflicts arise (for example, whether Mr Mackenzie is accessorially liable for the alleged contraventions of Siner Enterprises), mean that there may be that confusion between a person’s role as a witness and an advocate which would colour the independence and objectivity usually required of an advocate (and in particular a lawyer because of their role as an officer of the Court) which is necessary for truly effective representation of a party: Wong at [54] per Judge Lucev. The difficulties that may arise are many, and referred to in Sheahan v Northern Australia Land & Agency Co Pty Ltd (unreported, Supreme Court of South Australia, Perry J, No S3815, 4 February 1993) at [3]-[18] and Pittorino v Meynert [2001] WASC 245 at [7]-[10] per Bredmeyer M. The Court has also borne in mind that Mr Mackenzie will appear in any event in person, and may in that capacity do what he can to assist the case for Siner Enterprises. That, however, is not a reason of itself to grant Mr Mackenzie a right of appearance for Siner Enterprises.
Having regard to all of the above circumstances the Court is of the view that Mr Mackenzie is not likely to be capable of effectively representing Siner Enterprises, and that this factor weighs in favour of a refusal of a grant of leave for Mr Mackenzie to represent Siner Enterprises.
Financial position
A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Australian Consumer & Competition Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [4] per Kiefel J; Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 at [41] per Lucev FM (“Finetune Holdings”). Assertions of impecuniosity do not suffice and evidence is required: Finetune Holdings at [42]-[45] per Lucev FM.
There is no evidence in these proceedings relating to the financial position of Siner Enterprises. There are no bank statements, no financial statements, no profit and loss accounts, no taxation returns or any other form of relevant financial data which would allow the Court to make findings as to Siner Enterprises’ financial position. Nor is there, in the absence of the evidence referred to above, any scope for the Court to draw a reasonable and definite inference that had Siner Enterprises the financial capacity to retain a lawyer, then it is probable that such a lawyer would have been retained, or in the circumstances of this case, the lawyers who were retained would not have ceased to act for it: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466; (2007) 242 ALR 643; [2007] ATPR 42-177 at [38] per Weinberg, Bennett and Rares JJ. In any event, the submissions, such as they were from Mr Mackenzie, did not advert to impecuniosity, but rather a complaint about the quantum of the bill received from his former lawyers and the fact that it exceeded the amount claimed in these proceedings by Mr Singh. The fact that Mr Mackenzie has been unable to obtain pro bono assistance is irrelevant because there is no entitlement to pro bono assistance: FCC Rules, r.12.03. On another view, the fact that pro-bono assistance has not been forthcoming may be consistent with the view that Siner Enterprises is not impecunious.
There is nothing in the evidence before the Court which allows the Court to make a finding that Siner Enterprises is not in a financial position to be represented by a lawyer in these proceedings, and this factor does not weigh in favour of leave being granted for Mr Mackenzie to represent Siner Enterprises.
Whether leave to appear is opposed
The FW Ombudsman did not express a view as to whether the Court should grant leave to Mr Mackenzie to appear for Siner Enterprises. In those circumstances, this factor does not weigh against the grant of leave to Mr Mackenzie to appear for Siner Enterprises.
Conclusion – leave to appear by non-lawyer
Having regard to the matters set out above, and giving particular weight to its views in relation to the nature and complexity of the legal and factual issues which arise in this matter, and the likelihood of a lack of any effective representation of Siner Enterprises by Mr Mackenzie, the Court has concluded that the application in a case by Siner Enterprises (as advanced at hearing by Mr Mackenzie) for leave under r.9.04 of the FCC Rules for a non-lawyer (namely, Mr Mackenzie) to carry on, and appear for, Siner Enterprises in these proceedings must be dismissed. Leave for Mr Mackenzie to appear as a non-lawyer for Siner Enterprises was refused at hearing, and the foregoing reflects the Court’s reasons for that refusal.
Evidence
The FW Ombudsman relies on the evidence it filed in these proceedings, namely:
a)the affidavit of Gurprit Singh affirmed 28 June 2013 (“Singh Affidavit);
b)the affidavit of Ann Lucey, Fair Work Inspector (“FWI Lucey”) affirmed 23 March 2013 (“FWI Lucey Affidavit”);
c)the supplementary affidavit of Gurprit Singh affirmed 28 March 2014 (“Singh Supplementary Affidavit”); and
d)the further supplementary affidavit of Gurprit Singh affirmed 8 August 2014 (“Singh Further Supplementary Affidavit”).
Gurprit Singh gave some very short additional oral evidence-in-chief, was cross-examined by Mr Mackenzie, and re-examined very briefly.
Mr Mackenzie relied upon his affidavit affirmed 20 December 2013 (“Mackenzie Affidavit”). The Mackenzie Affidavit was the subject of objections which were ruled upon at hearing: see Transcript day 2 at page 27-30. Mr Mackenzie was cross-examined: Transcript day 2 at pages 30-52 and Transcript day 3 at pages 2-30, and gave some very short evidence in re-examination: Transcript day 3 at pages 30-31.
Siner Enterprises and Mr Mackenzie did file a further affidavit from a Mr Heranja but he did not give evidence and his affidavit did not go into evidence as he did not attend Court as requested by Mr Mackenzie and was not in the precincts of the Court when his name was called: Transcript day 3 at page 31. Mr Mackenzie had made numerous efforts to contact Mr Heranja on the day of the hearing; all of those efforts were unsuccessful: Transcript day 3 at page 31. Mr Heranja was not subpoenaed to appear.
The FW Ombudsman’s case
The FW Ombudsman’s case in relation to Mr Singh’s employment in summary is that:
a)Mr Singh is an Indian national. At the time of making his complaint to the FW Ombudsman, he held a bridging visa authorising him to work in Australia: Singh Affidavit at [3] and [4];
b)on 18 May 2012 Mr Singh responded to an advertisement on the ‘Gumtree’ website seeking an experienced cook for an Indian restaurant. After working the evenings of 18 to 20 May 2012 on a casual ‘trial’ basis, Mr Mackenzie offered Mr Singh full-time employment as a cook at the Restaurant. Mackenzie gave Singh a cash payment of $200.00 for the three nights ‘trial’: Singh Affidavit at [11]-[26];
c)Mr Singh commenced full-time employment on 22 May 2012 and worked six evenings a week, having either Sunday or Monday off. Mr Singh commenced work at 4.00pm and finished at 10.30pm on weekdays and 11.00pm on Friday and Saturday nights;
d)Mr Singh received no meal breaks during any of his shifts. He was not required to fill out any timesheets and never saw Mr Mackenzie or anyone else keep records of the hours he worked: Singh Affidavit at [84];
e)on 28 May 2012, Mr Mackenzie provided Mr Singh with a signed contract of employment that purported to come into effect upon the approval of Mr Singh’s ‘RSMS Visa application’. Mr Singh says that when he was handed the contract the date next to Mackenzie’s signature was 15 May 2012 and that he was told he should also put the date 15 May 2012 next to his signature: Singh Affidavit at [43]-[45];
f)Mr Singh provided the contract to his migration agent in order to support his residency application: Singh Affidavit at [46];
g)on approximately 20 June 2012, following the departure of the Restaurant’s chef, Mr Singh was given the alarm code and keys to the premises. From that time on, he was required to open the Restaurant when he arrived and close it each night: Singh Affidavit at [69] and [70];
h)on 18 September 2012, Mr Singh felt unwell and attended Botts Drive Pharmacy at 1098a Albany Highway, Bentley in Western Australia. The pharmacist provided Mr Singh with a medical certificate stating that he was unfit for work: Singh Affidavit at [86]-[88];
i)at 3.46pm that day, Mr Singh sent a text message to Mr Mackenzie advising that he was unwell and would not be attending work. Mr Mackenzie responded with a text message terminating Mr Singh’s employment: Singh Affidavit at [90] and [91]; and
j)Mr Singh never received any payment during his period of full-time employment with Siner Enterprises: Singh Affidavit at [71].
Mr Singh made a complaint to the FW Ombudsman on 24 September 2012: Lucey Affidavit at [4], and, thereafter, the FW Ombudsman summarises relevant events as follows:
a)the matter was assigned to Fair Work Inspector Ann Lucey (“FWI Lucey”) and, following initial telephone discussions with Mr Mackenzie, a written ‘Offer of Interview’ was forwarded to Siner Enterprises on 27 November 2012: FWI Lucey Affidavit at [5] and [8];
b)on 29 November 2012, FWI Lucey issued Siner Enterprises with a ‘Notice to Produce’. Mr Mackenzie requested additional time to respond and a second ‘Notice to Produce’ was issued on 18 December 2012: FWI Lucey Affidavit at [9]-[11];
c)on 14 January 2013, a partial response to the second ‘Notice to Produce’ was received. Accordingly, FWI Lucey issued a ‘Failure to Comply with a Notice to Produce’ on 21 January 2013: FWI Lucey Affidavit at [17]-[20] and [23]-[24];
d)on 13 February 2013, FWI Lucey issued Siner Enterprises with a ‘Contravention Letter’ and a second written ‘Offer of Interview’: FWI Lucey Affidavit at [32];
e)on 18 February 2013, Mr Mackenzie provided FWI Lucey with what he asserted to be timesheets recording Mr Singh’s hours of work and asserted that Mr Singh had agreed to work “training shifts … unpaid”: FWI Lucey Affidavit at [33];
f)on 6 March 2013, FWI Lucey received correspondence from Tolson & Co, Siner Enterprises’ legal representatives. The letter concedes that Mr Singh should properly have been regarded as a casual employee and estimates that based on the hours he worked at the restaurant, Mr Singh was underpaid $2,701.12 (gross). The letter denies that Mr Singh’s employment was terminated by Siner Enterprises: FWI Lucey Affidavit at [34];
g)on 10 April 2013, the FW Ombudsman received a cheque from Siner Enterprises made out to Mr Singh for $2,441 (net), which is for the hours that Siner Enterprises admits Mr Singh worked and is based on Siner Enterprises’ own calculations, excluding tax: FWI Lucey Affidavit at [37]; and
h)on 10 April 2013, Siner Enterprises also provided further timesheets of the hours it asserts Mr Singh worked: FWI Lucey Affidavit at [36].
The FW Ombudsman alleges that Mr Mackenzie was knowingly concerned in all of Siner Enterprises’ contraventions, and so was involved in and is liable for those contraventions pursuant to s.550 of the FW Act.
Matters in issue and findings
Employment covered by the FW Act
Siner Enterprises is a registered proprietary company limited by shares, and as such is a constitutional corporation for the purposes of s.12 of the FW Act, and the FW Act applies to any employment the subject of these proceedings by reason of the definitions of “employee” in ss.12 and 538 of the FW Act (the latter giving it is ordinary meaning).
Application of Restaurant Award
The business of the Restaurant operated by Siner Enterprises is covered by the Restaurant Award as the Restaurant is involved in the preparation and service of food in a restaurant as outlined at cll.3.1 and 4.1 of the Restaurant Award.
Employment status, classification and hours
Part 3 of the Restaurant Award sets out the types of employment to which the Restaurant Award applies as including full-time, part-time and casual employment which are then defined in cll.11, 12 and 13 respectively of the Restaurant Award. Clause 11 of the Restaurant Award defines a full-time employee as one “who is engaged to work an average of 38 ordinary hours per week”.
The key issue in relation to the alleged underpayments of minimum rates of pay contraventions relates to proving the hours worked by Mr Singh and his correct classification under the Restaurant Award.
The fact that Mr Singh was not paid at all, other than the $200 for his trial work, is not disputed by Siner Enterprises: Mackenzie Affidavit at [57] and [58]. Mr Singh also confirms this: Singh Affidavit at [71]-[78].
The breakdown of the hours worked and associated entitlements are located at Schedule A to the Statement of Claim.
Mr Singh’s evidence was:
a)that he worked from 4pm or 4:15pm to 10.30 pm or 11 pm, Monday to Saturday: Singh Affidavit at [53];
b)that he was directed by Mr Mackenzie to commence his shifts before the Restaurant was to open: Singh Supplementary Affidavit at [3]-[5];
c)that he entered into a contract of employment dated 9 May 2012, which provided for Mr Singh to work 38 hours per week: Singh Affidavit at [46]; and
d)that his duties and responsibilities included:
i)a significant amount of food preparation;
ii)cleaning;
iii)bringing in deliveries;
iv)ensuring the correct levels of stock were maintained;
v)setting up chairs;
vi)opening the Restaurant
vii)setting the alarm at the end of the evening; and
viii)locking up the Restaurant at the end of the night: Singh Affidavit at Annexure GS-2 at pages 36, 42 to 43, 47, 56 and 63.
Mr Singh gave particularly detailed evidence in the Singh Affidavit under the heading “My usual work day at the Curry Tree”, relevantly as follows in the Singh Affidavit from [53]-[70]:
53. From 22 May 2012 until 17 September 2012 I worked at the Restaurant from about 4 pm or 4:15 pm until 10:30 Tuesday to Thursday and until 11 pm on Fridays and Saturdays.
54. My shift at Fero finished at 3:30 pm each day. But, I usually finished working at about 3:15 pm when the next shift came in to start work. I would then get my clothes for the Restaurant from my car and have a shower and have a cup of tea before driving from Kewdale to Nedlands to start work at the Restaurant.
55. Usually the drive from Kewdale to Nedlands took me between 30 and 35 minutes depending on traffic. Most days I would get to the Restaurant at 4 pm, but sometimes I did not get there until 4:05 pm or 4:10 pm.
56. When I arrived at the Restaurant sometimes I was the first one there and had to set it up for the night. Before I was given a key to the Restaurant a door would be left open for me to come in through.
57. My first job was to burn the charcoal for the tandoor and to start the deep fryer. I would then start making the entrees like the pappadums or veg pakora. I also made the dough for the breads, and started chopping the onions or other vegetables that the chef needed.
58. Sometimes Simon also wanted me to vacuum the restaurant and clean the toilets when I arrived. But this was very hard because there was so much work in the kitchen.
59. During the shift l would make the breads and accompaniments including naan, roti, bathura, paratha, onion and aloo kulcha, raita, kuchuma and the rice dishes. I also made the entrees including pakoras, samosas, paneer or chicken tikka, seekh kebab, prawn cutlets, bhuna scallops and the tandoori tasting plate. Simon introduced a kids menu and I cooked the chicken nuggets, sausages, mashed potatoes and other things on the kids menu.
Annexed hereto and marked GS-7 is a copy of the dinner menu from the Curry Tree printed from the internet. This menu is basically the same as when I worked at the Restaurant. The items with a tick next to them are the items I cooked at the Restaurant.
60. I also helped the chef to prepare the main meals on the other side of the kitchen. This involved chopping meat and vegetables and preparing gravy or curry sauces.
61. Simon was my boss at the Restaurant and would send me text messages of instructions during the day or if he was not at the Restaurant himself. Sometimes Simon tried to call me during the day when I was at Fero. I did not answer when he called when I was at Fero but I would call him back during my lunch break.
62. Simon would usually get to the Restaurant at about 5 pm or 6 pm. Simon did not always stay at the Restaurant for the full dinner shift because he needed to take his kids home. He would leave us at the Restaurant to close up. Simon stayed at the Restaurant longer on a Saturday night because he did not have his kids with him.
63. Sometimes if Simon was not happy with the way I cleaned the Restaurant or packed away the food the night before he would send me messages about the kitchen. For example I received a text message on:
a. 13 June 2012 from Simon with a photo showing that the seafood was not covered which said: “all the seafood was not covered properly last night.i will sen u another photo" (sic);
b. 16 June 2012, from Simon which said: “Ok vagina. Coolroom was left in a mess yesterday.”
c. 28 June 2012, from Simon which said: “No u forgot to clean the kitchen properly”;
d. 7 July 2012, from Simon which said: “Dirty teatowels on benches, dirty teatowels on trolley, seafood not covered properly, fridges shelves in glass doors not tidy...”(sic);
The text messages referred to above are contained in annexure GS-2 at pages 32 to 34 and 39.
64. On other occasions Simon would send me instructions about what jobs needed to be done when I arrived at the Restaurant, what meals should be prepared, or what takeaway orders had come in when he had the Restaurant phone diverted to his mobile. For example, I received a text message on:
a. 22 June 2012 at 5:08 pm which stated: “I need 25 serves butter chick 25 serves lamb madras 15 prawn jhalfrezi 15 goan fish 5 pafak paneer All tables get seas veg...” (sic);
b. 11 July 2012 at 4:15 pm which stated: “at 530 have ready 2 kids meals Sausages and mash, tom sauce ready!.” (sic);
c. 12 July 2012 at 3:12 pm which stated: “Get all garnishes done first.peel carrots,peel beetroots. then pull them through julienne to make garnish. Pls fill jugs fgor raita.thanks” (sic);
d. On 20 July 2012 at 4:29 pm which stated: “Wen u get in light the heater in the garden room.turn switch on behind heater to start fan.make sure all doors to that area are closed” (sic);
e. On 18 August 2012 at 2:55 pm which stated: “We going to be busy 2nite.pls be in early. I need 2 veg samosa 2 meat samosa Takeaway ready at 530 And Beef vind Lamb rogan Chick madras”
f. On 26 August 2012 at 1:21 pm which stated: “Pls mop.floor polish in dining room.bleach for tiles and bar and toilets.make sure its done properly pls.”
The text messages referred to above are contained in annexure GS-2 at pages 36, 42 to 43, 47, 56 and 63.
65. Simon also required me to send him text messages setting out what food the Restaurant needed for the next day. To do this I would check the fridges and the stores and work out what ingredients were needed, we also kept a list on the notice board of the ingredient we needed.
66. Some examples of text messages between Simon and myself about food orders are:
a. On 26 August 2012 at 1:21 pm Simon sent a message which said: “Wheres vege order?” (sic);
b. I replied to this message at 1:30 pm: “Red chilli, green chilli, mint, coriander, lemon, lime. Cauliflower, ginger, beet root, spring onion. cucumber. Eggplant, cherry, gloves. (sic)
The text messages referred to above are contained in annexure GS-2 at pages 63 and 64.
67. I would usually finish work at the Restaurant between 10:30 pm and 11 pm. Towards the end of the shift I would clean the kitchen and put away all of the food.
68. Once when I was cleaning up the kitchen I dropped half a container of gravy on the floor because I had wet hands. Simon got very mad at me and said he would make me pay me for it.
69. From about 19 or 20 June 2012 I took on more responsibility at the restaurant because a new chef started and one of the other employees, Dinesh left. Dinesh said to me “I'm leaving because Simon doesn’t pay me properly.” Simon gave me a key to the Restaurant and the alarm code.
70. After Simon gave me the keys and alarm code he would call or text me if there was a problem with the alarm. For example, at 5:10 am on 29 August 2012 Simon sent me a message which said:
“Im gona kill u.my security company waking me fucken up.the alarm was not set last night.u cunt im gona smash your head in.if my restaurant got broken into I would not know.u just lost more money.”
The text messages referred to above is contained in annexure GS-2 at page 66.
In the Defence at [2] and [12] Siner Enterprises and Mr Mackenzie say that:
a)Siner Enterprises was not the employer of Mr Singh from 18 May 2012 to 18 September 2012;
b)Mr Singh was employed as a casual employee by Siner Enterprises from 3 June 2012 to 8 September 2012; and
c)Mr Singh worked on the days and hours set out in the Timesheets annexed to the Mackenzie Affidavit in the period from 3 June 2012 to 8 September 2012.
In the Mackenzie Affidavit Mr Mackenzie:
a)initially asserted that Mr Singh was engaged on a voluntary basis because Mr Singh allegedly did not have any skills and voluntarily attended at the Restaurant to learn to cook and develop his professional skills: Mackenzie Affidavit at [25] to [37]; and
b)further asserted that “in hindsight”, Mr Singh was a casual employee: Mackenzie Affidavit at [51].
The admission that Mr Singh was, at least, a casual employee, is inconsistent with any assertion that Mr Singh’s engagement with Siner Enterprises was in any way voluntary. Although the test for whether or not a person is an employee is a multi-faceted one, issues of direction and control generally remain at the core of that test: Stevens v Brodribb Sawmilling Company Proprietary Limited & Ors (1986) 160 CLR 16; (1986) 60 ALJR 194; (1986) 63 ALR 513; (1986) Aust Torts Reports 80-000; CLR at 24 per Mason J (with whom, on this point, Brennan and Deane JJ agreed at CLR at 47 and 49 respectively); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; (2001) 33 MVR 399; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476 at [43]-[45] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. In relation to the issues of direction and control Mr Singh’s Affidavit evidence, which was not seriously challenged in relation to direction and control, is compelling, as are the texts from Mr Mackenzie to Mr Singh. The evidence shows Mr Mackenzie on behalf of Siner Enterprises exercising direction and control consistent with Mr Singh being an employee of Siner Enterprises. The Court finds that at the times, that is for the hours, worked at the Restaurant by Mr Singh (whatever they were) he was an employee of Siner Enterprises.
The primary evidence tendered by Mr Mackenzie and Siner Enterprises relied upon to establish that Mr Singh was a casual employee are the Siner Enterprises’ Timesheets. Mr Mackenzie also asserts that Mr Singh was on a roster, and was “on that roster about 3 or 4 times a week”: Mackenzie Affidavit at [41]. No roster was ever produced to the FW Ombudsman or the Court. There can be no question that Mr Mackenzie was aware of the importance of the necessity to Siner Enterprises’ evidentiary case of producing a copy of any roster that existed, because in the Mackenzie Affidavit at [41] the following, which appears to be a question from the lawyers then acting for Siner Enterprises appears:
(Can we provide a copy of that roster especially at page that shows Gurprit being scheduled to work 3 or 4 days in a particular week?)
The reference to “Gurprit” in the above quote is a reference to Mr Singh.
There is significant evidence from text messages between Mr Singh and Mr Mackenzie which indicate why it is that Mr Singh’s evidence of his hours worked should be accepted over that of Mr Mackenzie.
There is evidence that Mr Mackenzie previously claimed that there were no timesheets for the work undertaken by Mr Singh in a conversation between Mr Mackenzie and FWI Lucey on 2 November 2012: FWI Lucey Affidavit at [8] and Annexure AL-8, where Mr Mackenzie is said to have said FWI Lucey that:
Gurprit wasn’t on the roster and there were no timesheets.
There is evidence, by reference to text message exchanges between Mr Singh and Mr Mackenzie, which indicate that Mr Singh worked at times that Mr Mackenzie said he did not work, and did not work at times that Mr Mackenzie said he did work, as follows:
a)Mr Singh was in Bali between 24 and 26 June, returning to the airport at 6.25pm on 26 June 2012: Singh Affidavit at [49]-[52];
b)Siner Enterprises’ Timesheet claims that Mr Singh worked between 6.30pm and 8.00pm on Tuesday 26 June: Mackenzie Affidavit, Exhibit 1 at page 12;
c)at 4.37pm on Tuesday 10 July 2012 Mr Mackenzie messaged Mr Singh expecting him to be at the Restaurant by 5.30pm in order to complete a takeaway order: Singh Affidavit, Annexure 2 at page 42;
d)Siner Enterprises’ Timesheet contains no record of Mr Singh having worked on Tuesday 10 July 2014: Mackenzie Affidavit, Annexure 1 at page 14;
e)similar discrepancies occur on 23 and 24 July:
i)at 8.44am on Monday 23 July 2014, Mr Mackenzie messaged Mr Singh advising that a table of 10 was expected and for Mr Singh to be ready: Singh Affidavit, Annexure 2 at pages 47 and 48; and
ii)at 10.20pm on 23 July 2014, Mr Singh text messaged Mr Mackenzie providing a list of ingredients that was to be sourced: Singh Affidavit, Annexure 2 at page 48;
f)Siner Enterprises’ Timesheets contain no record of Mr Singh having worked on Monday 23 and Tuesday 24 July 2014;
g)at 10.00pm on Thursday 26 July 2014, Mr Mackenzie messaged Mr Singh instructing him to bring food from the Restaurant to Mr Mackenzie’s house: Singh Affidavit, Annexure 2 at page 49;
h)Siner Enterprises’ Timesheet asserts that Mr Singh only worked 6.00pm to 8.00pm on Thursday 26 July 2014: Mackenzie Affidavit, Annexure 1 at page 16; and
i)on Tuesday 21 August 201, Mr Singh messaged Mr Mackenzie advising that he (Mr Singh) had too much food preparation to do. Mr Mackenzie replied saying ‘Bad luck’: Singh Affidavit, Annexure 2 at page 61. This indicates Mr Singh was in fact at work on Tuesday 21 August 2012. Siner Enterprises’ Timesheet contains no record that Mr Singh worked on Tuesday 21 August 2012: Mackenzie Affidavit, Annexure 1 at page 19.
There is evidence in text message exchanges between Mr Mackenzie and Mr Singh that Mr Singh commenced work at 4.00pm as he claimed. That evidence is as follows:
a)Mr Mackenzie requested Mr Singh to arrive at work prior to 4.00pm on occasions:
i)Monday 20 June 2012 - Mr Mackenzie requested Mr Singh to be at work by 3.00pm: Singh Affidavit, Annexure 2 at page 35; and
ii)Monday 20 June 2012 - at 4:10pm Mr Mackenzie messages Mr Singh asking where he (Mr Singh) was. Mr Singh responds that he was 'at the restaurant': Singh Affidavit, Annexure 2 at page 36;
b)at 5:08pm on Tuesday 31 July 2012, Mr Mackenzie messaged Mr Singh providing a food order and requesting that it be prepared by 5:25pm: Singh Affidavit, Annexure 2 at page 50. Siner Enterprises’ Timesheets say that Mr Singh did not commence work on Tuesday 31 July 2012 until 6.00pm: Mackenzie Affidavit, Annexure 1 at page 17;
c)at 2:33pm on Tuesday 14 August 2012, Mr Mackenzie messaged Mr Singh advising that a photographer will be at the Restaurant by 4:30pm that afternoon and requested Mr Singh to ensure the Restaurant was ready: Singh Affidavit, Annexure 2 at page 53. Siner Enterprises’ Timesheets say that Mr Singh did not commence work until 6.00pm: Mackenzie Affidavit, Annexure 1 at page 17;
d)at 5:18pm on Friday 17 August 2012, Mr Mackenzie messaged Mr Singh a food order: Singh Affidavit, Annexure 2 at page 55. Siner Enterprises’ Timesheets say that Mr Singh did not commence work until 6.00pm on Friday 17 August: Mackenzie Affidavit, Annexure 1 at page 18.
e)Mr Singh was often the first employee to arrive at the Restaurant:
i)at 3:31pm on 20 August 2014, Mr Mackenzie messaged Mr Singh to put the bins out: Singh Affidavit, Annexure 2 at page 60;
ii)at 12:42pm on 21 August 2014, Mr Mackenzie messaged Mr Singh advising of a delivery of cleaning products to the Restaurant and for him to sweep and mop the front area: Singh Affidavit, Annexure 2 at page 60; and
iii)at 10:24pm on 21 August 2012, Mr Mackenzie messaged Mr Singh advising him to put the chairs out when he (Mr Singh) arrived at the Restaurant: Singh Affidavit, Annexure 2 at page 62;
f)at 4:12pm on Tuesday 28 August 2012, Mr Mackenzie messaged Mr Singh directing him to put the chairs and takeaway sign out. Mr Singh replies saying 'ok': Singh Affidavit, Annexure 2 at pages 65 and 66;
g)Siner Enterprises’ Timesheets say that Mr Singh was 'not coming, sick' on Tuesday 28 August 2012: Mackenzie Affidavit, Annexure 1 at page 20; and
h)similarly, at 5:10am on Wednesday 29 August 2012, Mr Mackenzie messages Mr Singh advising that the alarm was not set the night before and directing him to go back to the Restaurant to reset the alarm: Singh Affidavit, Annexure 2 at page 66. This indicates that on the balance of probabilities Mr Singh worked the night before (Tuesday 28 August).
By reference to text message exchanges between Mr Singh and Mr Mackenzie there is also evidence that Mr Singh, as he claimed, worked longer than five hours in shifts and after 10.00pm. That evidence includes:
a)that Mr Singh was often the last to leave the Restaurant because he was required to do the cleaning, prepare the grocery list for the following day and required to lock up the business;
b)that Mr Singh was required to pack the fridges at the end of the night, ensure that all food is sealed in containers, clean fridge and two freezers, clean benches and stone tops;
c)Mr Mackenzie stating that the Restaurant did not close until 9.00pm: Mackenzie Affidavit at [47]. It follows that the duties referred to above which Mr Singh performed would not, in all likelihood, have been commenced until the closure of the Restaurant and would not be be completed by 10:00pm;
d)evidence of Mr Singh locking up the business: Singh Affidavit at [70];
e)evidence of Mr Singh doing the cleaning including the sealing of food containers at the end of the night: Singh Affidavit at [63], [67] and [68];
f)evidence of Mr Singh advising Mr Mackenzie of the grocery list for the Restaurant at the conclusion of each shift: Singh Affidavit at [65] and [66];
g)evidence of Mr Singh arming the security alarm at the conclusion of the night: Singh Affidavit at [70];
h)that Mr Singh was often the last person at the Restaurant once it had closed, so, for example at 11:09am on 6 July 2012, Mr Mackenzie messaged Mr Singh advising that dirty tea towels were left on benches and in the trolley, seafood was not covered and fridge shelves in glass door were not tidy: Singh Affidavit, Annexure 2 at page 40. Mr Mackenzie complained about the state of the kitchen as he knew Mr Singh must have been the last employee to leave on 5 July 2012 and was therefore responsible;
i)that Mr Singh was often at the Restaurant until after 10.00pm:
i)at 10.00 pm on 26 July 2012, Mr Mackenzie messaged Mr Singh asking Mr Singh to call him and asking Mr Singh to prepare food for the dogs and for Zahed Ahmed to bring the food to Mr Mackenzie's house for the dogs: Singh Affidavit, Annexure 2 at page 49. The Siner Enterprises’ Timesheets says that Mr Singh left work at 8.00pm on 26 July 2012: Mackenzie Affidavit, Annexure 1 at page 16; and
ii)at 11.18pm on 18 August 2012, Mr Singh messaged Mr Mackenzie with a food order. Mr Mackenzie responded requesting .him to lock the restaurant properly: Singh Affidavit, Annexure 2 at page 58. Siner Enterprises’ Timesheet says that Mr Singh left at 7:50pm on 26 July 2012: Mackenzie Affidavit, Annexure 2 at page 18; and
j)the undisputed evidence reveals that Mr Singh worked after 9:30pm and between l0.00pm and 11.00 pm consistent with Mr Singh's assertions and in conflict with Siner Enterprises’ Timesheets. Mr Singh sent through the food orders to Mr Mackenzie by text message on multiple occasions after 9.30pm, which he said he usually sent when he was in the kitchen or cool room:
i)2 July 2012 - Mr Singh was still at the Restaurant at 9.24pm: Singh Affidavit, Annexure 2 at page 39;
ii)9 July 2012 - Mr Singh was still at the Restaurant at 9.40pm: Singh Affidavit, Annexure 2 at page 41;
iii)23 July 2012 - Mr Singh was still at the Restaurant at 10.20pm: Singh Affidavit, Annexure 2 at page 48;
iv)17 August 2012 - Mr Singh was still at the Restaurant at 11.48pm: Singh Affidavit, Annexure 2 at pages 54 and 55;
v)18 August 2012 - Mr Singh was still at the Restaurant at 11.18pm: Singh Affidavit, Annexure 2 at page 58;
vi)21 August 2012 - Mr Singh was still at the Restaurant at 10:24pm: Singh Affidavit, Annexure 2 at page 61;
vii)26 August 2012 - Mr Singh was still at the Restaurant at 9.49pm: Singh Affidavit, Annexure 2 at page 64;
viii)31 August 2012 - Mr Singh was still at the Restaurant at 10.42pm: Singh Affidavit, Annexure 2 at page 67;
ix)1 September 2012 - Mr Singh was still at the Restaurant at 10.38pm Singh Affidavit, Annexure 2 at page 68; and
x)8 September 2012 - Mr Singh was still at the Restaurant at 10.42pm: Singh Affidavit, Annexure 2 at page 70.
The FW Ombudsman also seeks the imposition of penalties on Siner Enterprises and Mr Mackenzie in respect of the contraventions in which they were involved. There will be a further hearing in relation to penalty on a date to be fixed, in relation to which appropriate programming orders will now be made.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 26 October 2017
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