Gambhir v Fastserv Solutions Pty Ltd

Case [2021] FedCFamC2G 211

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gambhir v Fastserv Solutions Pty Ltd [2021] FedCFamC2G 211

File number(s): SYG 2713 of 2019
Judgment of: JUDGE DRIVER
Date of judgment: 11 November 2021
Catchwords: INDUSTRIAL LAW – claim for underpayments – several changes in employment status – leave records unreliable – issues of credit considered – claim found not to be established
Legislation:

Fair Work Act 2009 (Cth), ss 45, 61, 90, 535, 539, 545, 546, 547, 557C, 570

Long Service Leave Act 1955 (NSW), ss 2, 3, 4

Superannuation Guarantee (Administration) Act 1992 (Cth), s 12

Fair Work Regulation 2009 (Cth)
Cases cited:

Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136

Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100

Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118

Dental Corporation Pty Ltd v Moffet [2021] HCATrans 16

Elachi v O’Shea & Jolly Jointly Trading as NRG Legal & Anor [2020] FCCA 2706

James Turner Roofing Pty Ltd v Peters [2003] WASCA 28

Re 4 Yearly Review of Modern Awards [2015] FWCFB 4839

Re 4 Yearly Review of Modern Awards [2015] FWCFB 6656
Division: Division 2 General Federal Law
Number of paragraphs: 223
Date of last submissions: 30 July 2021
Dates of hearing: 21, 22, 25 June 2021
Place: Sydney
Solicitor for the Applicant: Mr V Mishra of Redline Legal
Counsel for the Respondent: Mr G Diggins
Solicitor for the Respondent: Pannu Lawyers

ORDERS

SYG 2713 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MANPREET SINGH GAMBHIR

Applicant
AND:

FASTSERV SOLUTIONS PTY LTD

Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application lodged on 23 September 2019 and filed on 21 October 2019 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 DRIVER:

INTRODUCTION AND BACKGROUND

  1. By an application and accompanying Form 2 filed on 21 October 2019, the applicant (Mr Gambhir) sought orders under ss 545(2)(b) and 547 of the Fair Work Act 2009 (Cth) (Fair Work Act) principally by way of compensation for alleged underpayment of employee entitlements in the sum of $28,276.11 plus interest. Mr Gambhir also seeks pecuniary penalties under ss 539 and 546 of the Fair Work Act.

  2. The matter has had a rather long procedural history.  It was initially docketed to Judge Altobelli, who referred the parties to mediation.  The matter did not resolve.  There were interlocutory disputes over subpoenas and disagreements over evidence.

  3. Following…

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AGLC
Gambhir v Fastserv Solutions Pty Ltd [2021] FedCFamC2G 211
Case
[2021] FedCFamC2G 211
Decision Date

CaseChat Overview and Summary

In Gambhir v Fastserv Solutions Pty Ltd, Mr Gambhir brought a claim for underpayments against Fastserv Solutions, a family business, citing issues related to his leave entitlements. The case was contentious, with both parties presenting their evidence and submissions vigorously. The central legal issues revolved around the accuracy of leave records and whether Mr Gambhir's claims for underpayments were substantiated. Mr Gambhir argued that Fastserv failed to comply with its record-keeping obligations under the Fair Work Act and Fair Work Regulations 2009 (Cth), although his claim was based on the leave entitlements as recorded, not the quality of record-keeping per se. Fastserv, on the other hand, denied any underpayment and presented evidence to support its position.

The court examined the evidence, noting that the leave and attendance records were unsatisfactory, making it difficult to ascertain the true details of leave and entitlements. Despite Mr Gambhir's arguments, the court found that the claim for underpayments was not established. The unsatisfactory record-keeping did not support Mr Gambhir's claim, and Fastserv's evidence, including witness testimonies and documentary evidence, did not substantiate the alleged underpayments. The court concluded that Mr Gambhir had not proven his case, and the application was dismissed.

Consequently, the court ordered that the application filed by Mr Gambhir on 23 September 2019 and lodged on 21 October 2019 be dismissed. The court also noted that it would hear submissions regarding costs at a later stage.

Orders

Orders of the court

The application lodged on 23 September 2019 and filed on 21 October 2019 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The matter was hard fought, including during the trial. With this in mind, Mr Gambhir also claims costs for the proceedings on the basis of unreasonable behaviour by Fastserv. Those costs are sought on an indemnity basis.THE EVIDENCE AND SUBMISSIONS Mr Gambhir relies on his own affidavits made on 12 October 2020 and 15 June 2021. Fastserv relies on affidavits made by:(a)Mr Sumeet Verma (the sole director of Fastserv) on 16 October 2020;(b)Mr Verma’s wife and former operations manager of the business, Ms Swati Utneja, on 13 October 2020; and (c)Mr Amit Verma on 14 October 2020. There were objections as to evidence but, with the agreement of the parties, I received all of the evidence provisionally, subject to relevance and submissions. The parties had provided pre hearing submissions to Judge Altobelli but I gave leave for more extensive submissions to be made following the trial before me. Mr Gambhir’s post hearing submissions were filed on 9 July 2021 and those of Fastserv were filed on 23 July 2021. Submissions in reply on behalf of Mr Gambhir were filed on 30 July 2021. I also received the following exhibits:A1 email chain;R1 email dated 26 March 2019;R2 email (including chain) dated 5 April 2019;R3 email dated 11 April 2019;R4 email dated 14 December 2017;R5 email (including chain with email comprising Exhibit R4) dated 14 December 2017;R6 email (including chain) dated 30 January 2018;R7 payment document for period ending 28 February 2018;R8 payment document for period ending 31 March 2018;R9 annual leave list;R10 payment document for period ending 31 January 2018;R11 payment document for period ending 31 December 2017;R12 ABN Lookup document;R13 letter from Mr Sumeet Verma to Mr Gambhir dated 1 March 2018;R14 further copy of payment document for period ending 31 December 2017;R15 screenshot of inbox showing payslips;R16 screenshot of Payslip History.CONSIDERATION Fastserv is a family business. There are also cultural connections between Mr Gambhir and the operators of Fastserv. The evidence discloses a former degree of personal closeness between the natural persons working in or responsible for the business. Unfortunately, personal relationships have soured. It is noteworthy that Mr Gambhir’s claim is for a very specific amount. It emerged during the trial, however, that the records of leave and attendance in the business were found to be (and are) unsatisfactory and the true details of leave and entitlements for leave had to be teased out during the examination of the evidence. I found this exercise to be difficult and unsatisfactory. Proper record keeping is an obligation placed on employers by the Fair Work Act and Fair Work Regulations 2009 (Cth) (Regulations).[2] Mr Gambhir devotes much space in his submissions to asserted breaches by Fastserve of its record keeping obligations. Mr Gambhir is not, however, suing Fastserv over the quality of its record keeping. He is suing for what he claims are his leave entitlements based on the records available to him. Notably, Fastserv denies there was any underpayment, which it sought to support by reference to the evidence it led, both in chief from its own witnesses and by cross-examination of Mr Gambhir.Mr Gambhir’s contentions[2] See in particular Division 3 of Part 3-6 of the Regulations.Long service leave payable to Mr Gambhir – 18 March 2013 to 31 March 2018

Decision

Reasons for decision

For the reasons outlined above, I find that there has been no relevant breach of a civil remedy provision of the Fair Work Act so as to give rise to a potential pecuniary penalty order.CONCLUSION I conclude that Mr Gambhir has not established the elements of his claim. It follows that the application should be dismissed. I will so order. Mr Gambhir also sought costs on an indemnity basis. It was premature for any costs application to made prior to this judgment. I will hear the parties as to costs to the extent necessary.

Ratio Decidendi

Legal Principle Established

I also received the following exhibits:A1 email chain;R1 email dated 26 March 2019;R2 email (including chain) dated 5 April 2019;R3 email dated 11 April 2019;R4 email dated 14 December 2017;R5 email (including chain with email comprising Exhibit R4) dated 14 December 2017;R6 email (including chain) dated 30 January 2018;R7 payment document for period ending 28 February 2018;R8 payment document for period ending 31 March 2018;R9 annual leave list;R10 payment document for period ending 31 January 2018;R11 payment document for period ending 31 December 2017;R12 ABN Lookup document;R13 letter from Mr Sumeet Verma to Mr Gambhir dated 1 March 2018;R14 further copy of payment document for period ending 31 December 2017;R15 screenshot of inbox showing payslips;R16 screenshot of Payslip History.CONSIDERATION Fastserv is a family business. There are also cultural connections between Mr Gambhir and the operators of Fastserv. The evidence discloses a former degree of personal closeness between the natural persons working in or responsible for the business. Unfortunately, personal relationships have soured. It is noteworthy that Mr Gambhir’s claim is for a very specific amount. It emerged during the trial, however, that the records of leave and attendance in the business were found to be (and are) unsatisfactory and the true details of leave and entitlements for leave had to be teased out during the examination of the evidence. I found this exercise to be difficult and unsatisfactory. Proper record keeping is an obligation placed on employers by the Fair Work Act and Fair Work Regulations 2009 (Cth) (Regulations).[2] Mr Gambhir devotes much space in his submissions to asserted breaches by Fastserve of its record keeping obligations. Mr Gambhir is not, however, suing Fastserv over the quality of its record keeping. He is suing for what he claims are his leave entitlements based on the records available to him. Notably, Fastserv denies there was any underpayment, which it sought to support by reference to the evidence it led, both in chief from its own witnesses and by cross-examination of Mr Gambhir.Mr Gambhir’s contentions[2] See in particular Division 3 of Part 3-6 of the Regulations.Long service leave payable to Mr Gambhir – 18 March 2013 to 31 March 2018 Mr Gambhir claims long service leave for the first employment period which was for a period of five years and two weeks. The contracts of employment (made in 2013 and 2015[3]) provided at [8] that the employee is entitled to long service leave in accordance with legislation. The legislation is applicable in any event but Mr Gambhir makes the point that the contracts provided for this and when it was put to him, Mr Sumeet Verma was aware of this in both contracts and admitted the provisions continued to apply even after they expired and the employment relationship continued to be governed by the contracts. [3] Pages 23 and 42 of Mr Sumeet Verma’s affidavit, Annexures SV2 and SV3. Mr Sumeet Verma stated he did not pay long service leave as Mr Gambhir resigned and had wanted to be an independent contractor. He did not say he was unaware that the period of five years had been passed.