Gill v Kanda

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION

Case No. MAG-CI-240141020

HARPREET SINGH GILL	Plaintiff
and
RAMAN KANDA	Defendant

---

MAGISTRATE:	K Fawcett
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2025, affidavits filed 2 April 2025, 11 April 2025.
DATE OF DECISION:	4 July 2025
CASE MAY BE CITED AS:	Gill v Kanda
MEDIUM NEUTRAL CITATION:	[2025] VMC 8

---

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 44, 45, 323(1), 535, 536, 547, 548, 557C – Small claim – Alleged failure by employer to pay employee any wages or entitlements – Pay slips falsely state payment made to employee’s bank account – Credit and reliability of witness evidence – Operation of s 557C – Employer burden of disproving non-payment allegation – Interest – Good cause shown to the contrary.

APPEARANCES:
For the Plaintiff	Harpreet Singh Gill	Litigant in person
For the Defendant	Counsel Timothy Coleman	Solicitor Kohli & Co Lawyers

HER HONOUR:

INTRODUCTION

The Plaintiff Mr Harpreet Singh Gill (Gill) was employed by Mr Raman Kanda (Kanda)[1] from 30 December 2019 to 28 June 2020 as a front of house manager at Kanda’s business the ‘Steakhouse Grill66’ in Docklands. Gill worked regular full time hours between Monday and Friday. Gill was introduced to Kanda by their mutual friend Mr Amil Kumar.
[1]Several documents in evidence referred to Gill’s employer being the entity Rosenhart Pty Ltd. However, each party maintained that Kanda was the correct employer.
Gill was issued weekly pay slips in respect of this employment, which under the heading ‘payment details’ reflected EFT transfer of Gill’s net wages to his bank account. There was no dispute about whether the sums reflected in those pay slips were the correct amounts due to Gill for work he performed. However, Gill claims he was never paid by Kanda to his bank account, or at all. He claims his wages for the entire period are owed, totalling $16,808.28. Gill also claims he was not paid, and is owed, $1434.90 in respect of 67.2313 hours of annual leave he had accrued at the end of his employment, reflected on his final pay slip, but which was never paid. Gill further alleges that superannuation payments reflected on his pay slips, totalling $1947.49, were not made by Kanda on his behalf, until December 2024 when two payments totalling $409.87 were made from a superannuation guarantee charge paid to the Australian Taxation Office (ATO) by Rosenhart Pty Ltd. Gill also seeks interest pursuant to s 547 of the Act.
Kanda accepts that no payments were made to Gill’s bank account, but says that he paid Gill’s wages as reflected on the pay slips, and accrued annual leave, to Gill in cash. He accepts that there is no pay slip reflecting any annual leave payment. Kanda further says that all of Gill’s outstanding superannuation has now been paid to the ATO.
Gill’s claim is brought as a small claim pursuant to s 548 of the Fair Work Act 2009 (Cth) (the Act). It was not at issue that s 323(1) of the Act applies in respect of Gill’s unpaid wages claim, s 44 of the Act applies in respect of Gill’s claim for annual leave pursuant to the National Employment Standards entitlement in s 87 of the Act, and that s 45 of the Act applies in respect of Gill’s claim for superannuation, pursuant to clause 30.2 of the Restaurant Industry Award 2020. This Court, an eligible State or Territory Court pursuant to s 12 of the Act, has jurisdiction to remedy any underpayment arising from the contravention of ss 44, 45 and 323(1) of the Act.

THE PAY SLIPS

The pay slips were not in dispute. They generally reflected a weekly pay period running from Monday to Sunday, and a payment date of the following Wednesday. Each pay slip to 1 April 2020 reflected a weekly wage of $1057.99, superannuation of $100.48 (with the words ‘SGC - fund details pending’) and an annual leave accrual of 2.9231 hours. Each pay slip after 1 April 2020 reflected weekly wages of $750, superannuation of $71.25 and an annual leave accrual of 2.9231 hours. The first pay slip had a payment date of 8 January 2020 for the pay period 30 December 2019 to 5 January 2020. The final pay slip had a payment date of 1 July 2020 for the pay period 22 June 2020 to 28 June 2020, and reflected a total annual leave balance of 67.2313 hours.

GILL’S EVIDENCE

Gill said he has not been paid his wages, superannuation or annual leave for the entire six months of his employment. He was provided weekly pay slips by email but the amounts on the pay slips were not paid. Gill relied on bank statements from his Commonwealth Bank Smart Access account over the employment period. The account number of that account matches the account number recorded on the pay slips under ‘payment details’. The statements illustrate that no payment was made by Kanda during this period.
Gill had moved to Melbourne from Queensland just prior to his employment and was introduced to Kanda by their mutual friend Mr Kumar. Kanda was going through financial hardship however Mr Kumar vouched for Kanda, and Gill relied on his word, agreed he would run Kanda’s business and support him. Kanda said he would pay Gill as soon as he had the money. Gill told Kanda to provide him with some kind of proof that he could rely on. Kanda provided the pay slips. Mr Kumar was aware of the situation but was not guaranteeing any payment by Kanda and said it was between Gill and Kanda. Gill did not call Mr Kumar as a witness because he is a good friend of Kanda’s.
During the employment Gill asked Kanda every two to three weeks to be paid. Kanda said the business was not doing well and he had some personal debts he needed to clear, but that he would pay. Those conversations always occurred outside the venue. By 28 June 2020 Gill had had enough, and told Kanda that he couldn’t come to work anymore, that Kanda had to fix his payments, and if Kanda wanted to hire him again after that he could. Kanda told Gill that the amounts owed would be provided in a week’s time. Gill was never paid in cash and has not received any payment at all. He denied that any other employees ever saw him being paid in cash for his wages. As far as he is aware, Gill was the only person not being paid.
Gill said he was able to survive financially because he had a personal loan from the Commonwealth Bank, a credit card, and a friend based in Melbourne was supporting him. When cross examined as to his source of income in the 2019/20 financial year he agreed that as of 24 December 2019 he already had an overdraft of over $2000, a personal loan and a credit card. He was paying these by instalments but after no wages were paid, that went down the drain. He had not been employed in the six months prior to commencing at Steakhouse Grill66, but was unsure of the exact date his previous employment ended. Gill agreed he had no savings to fall back on and was in a dire situation but said that was his problem.
Gill initially said that all the transactions reflected on his bank statements were his. He was asked about a number of transactions in Queensland in January 2020. He said that he had returned to Queensland at the beginning of the employment as he had a lease there in his name. He then said that on various dates in January 2020 his card was used by his mate, who he had been living with, and he didn’t need the card so he could have given it to his friend.
Gill was also cross examined on a number of payments to his bank account from a second account in his name. He said that second account had been closed, he didn’t remember where that money had come from and disagreed that the money in the second account came from cash payments from Kanda. He disagreed the statements from the second account would show cash deposits, but said there was a possibility or a chance that he had deposited cash into that account, from his friend, not from Kanda.
Gill declared the income recorded on the pay slips in his 2019/20 tax return, prepared by his Tax Agent. He reported the income as he believed it was his legal duty to reflect the documentation provided by Kanda, and he gave the pay slips to his tax agent. He didn’t know his rights back then, otherwise he would have told his tax agent that he hadn’t been paid. He said his taxation documents do not confirm that the payments have been made in reality. His Notice of Assessment reflects that taxation of $3,490 had been remitted on his behalf, and that he was entitled to a refund of that sum. He received the refund of $3,490.
Gill’s superannuation statement dated 26 July 2024 demonstrates that no payments were made by or on behalf of Kanda at that date. Gill also relied on two letters from the ATO dated 6 December 2024 and 17 December 2024. Each letter stated ‘[i]f your employer does not pay your minimum superannuation guarantee amount on time and to the right fund, they must pay the superannuation guarantee charge (SGC) to us.’ The letters stated that contributions of $115.29 and $294.58 from Rosenhart Pty Ltd had been transferred to Gill’s account on 13 September 2024 and 24 September 2024 respectively for the quarter ending 31 March 2020. In an affidavit filed subsequent to the hearing, Gill said he had been advised by the ATO that further payments of $1446.95 and $152.90 were received by the ATO from Rosenhart Pty Ltd on 28 January 2025, and that letters in similar terms to the earlier ATO letters were pending.
Gill took no steps to recover his wages for almost four years after the employment ended, because he didn’t know his rights. He first wrote a letter of demand to Kanda on 31 May 2024. He had asked people and found out the limitation period of six years.
Gill also relied on a reference letter which he initially said had been provided to him by Kanda by email in around May 2021. The letter bears Kanda’s signature and is not on letterhead. Gill was unable to produce the email by which the reference was sent. Under cross examination, Gill then said Kanda also sent him a hard copy in the post. He then said he remembered that at the time, he was in Melbourne and was provided with the hard copy at Kanda’s premises, and also raised the non-payment issue then.
Gill also provided a series of emails from debt collection firms evidencing his debts in respect of his Commonwealth Bank personal loan and credit card, as follows: 28 October 2020 email from Complete Credit Solutions regarding unspecified debt; 4 November 2020 email from Pioneer Credit regarding the personal loan, stating a balance of $9637.40 was outstanding; 31 March 2022 email from Complete Credit Solutions regarding an outstanding balance of $11,516.69; 7 June 2024 email from Complete Credit Solutions regarding an outstanding credit card balance of $15,441; 25 July 2024 email from Pioneer Credit regarding the personal loan, stating the balance as $9044.20 with the last repayment having been 10 August 2020; 10 September 2024 email from Complete Credit Solutions regarding the credit card with an outstanding balance of $16,857.80; and 20 October 2024 email from Complete Credit Solutions stating the amount due as $17,085.34. Gill agreed he owed around $25,000 and said this was because he used it when he was not being paid by Kanda. Gill denied lying about being owed wages and pursuing Kanda due to being under immense financial pressure, saying credit agencies had been emailing and calling him since 2020.

KANDA’S EVIDENCE

Kanda said that every week, on Friday, as soon as Gill finished his shift, Gill asked for payment in cash because he always needed the money straight away, and Kanda paid him in accordance with the amounts on his pay slips. Kanda initially said that as soon as Gill asked to be paid cash, the same day, Kanda checked with his accountant if he could pay cash, and was told that it was legal, provided that he gave a pay slip and paid tax and superannuation, and provided a group certificate. Later in his evidence, upon questioning him as to that matter, Kanda said he had known how much to pay to Gill on the first occasion he asked for cash, even though the pay slip had not yet been generated, because Gill’s weekly hours were always the same and Kanda did the calculations himself on the night, based on a weekly tax table in his office, and he checked with his accountant after that.
At the start of the employment Kanda obtained Gill’s details which were inputted into the Xero accounting system which does not allow cash payments. Pay slips go automatically to employees every week. The EFT transfer detail was on Gill’s pay slip because it is not possible to run the pay slip without bank details. Gill was paid cash exactly in accordance with the amount in the pay slips. Gill was the only person paid cash. Gill belongs to the same community as Kanda and Kanda tried to help him.
Regarding annual leave, Kanda initially said that at the end of each week, he paid Gill his annual leave in cash. Then, when his counsel referred to the accruing annual leave balances on the pay slips, and the final balance, Kanda said that he had paid the annual leave in cash on the evening of Gill’s final Friday shift. He said his accountant had calculated the amount, and it was approximately $1100 in cash. Upon questioning him about this payment, given Gill’s last shift was 28 June and the pay slip was dated 1 July, Kanda then said that the annual leave was calculated and paid three to four days after Gill’s last shift, within a week it was cleared, and Gill was still in Melbourne and came back to get it.
Regarding superannuation, Kanda filed a document titled ‘Intention to defend the complaint,’ signed and dated 15 July 2024, in which he stated that Gill had never provided his superannuation details. However, Kanda accepted in his evidence that he had paid superannuation until 2019, then there was a lag in payments with a few employees short. Kanda was audited by the ATO and entered a payment arrangement for one year to pay the Superannuation Guarantee Charge (SGC) for all employees. Kanda relied on undated statements in respect of Gill, demonstrating a superannuation guarantee shortfall of $1205.74 for the March 2020 quarter and $741.67 for the June 2020 quarter, and an undated receipt from the ATO refers to ‘SGC lodgement for Financial Year End 2020’. Kanda ultimately agreed that the sums referred to in the SGC statements had not been paid to Gill prior to the payment arrangement with the ATO, but maintained also that Gill hadn’t provided details. In an affidavit filed subsequent to the hearing, Kanda said he had completed the payment plan, relying on an undated ATO document indicating that Rosenhart Pty Ltd had a ‘$0.00’ overdue superannuation guarantee balance.
Kanda said that the reference letter produced by Gill was a fraudulent document, the signature was not his, he always gives letters on letterhead, that month Kanda’s son had been born and Gill did not come to the premises. Kanda said his business was profitable at the relevant time and he was not under financial hardship.

MR SANDEEP KANDA’S EVIDENCE

Mr Sandeep Kanda, Kanda’s brother, gave evidence for Kanda. He worked at the Steakhouse Grill66 as a cook for around four and a half years including the period that Gill was employed. In an affidavit filed in the proceeding, Mr Sandeep Kanda said:
Harpreet use to mentiomned his tight financial situation. Therefore, he used to ask for his wages to be paid before the payday, so the employer, after calculating Harpreet ’s PAYG and super, used to pay him mostly in cash by the end of harpreet’s last shift of the week [sic].
In his oral evidence, Mr Sandeep Kanda said he didn’t know if Gill got paid or not. On two or three occasions he saw Gill speaking with the boss and getting paid cash for his salary, the other times he doesn’t know. He does not remember the date, it was a long time ago. He said Gill was a good employee but always desperate for money and asking for money. He then said that he was not close to Gill and Gill told him sometimes he needed money to send. Mr Sandeep Kanda was paid into his bank account every Friday and always got paid on time.

MS JYOTI KANDA’S EVIDENCE

Ms Jyoti Kanda, Kanda’s wife, gave evidence for Kanda. She was employed at the Steakhouse Grill66 at the same time as Gill. In an affidavit filed in the proceeding, Ms Kanda said:
I am … aware that Mr Harpreet singh used to get his salary mostly in cash and in advance explaining his adversed financial circumstances , thus the employer … used to pay him before the pay day citing his … regular urgency of finances [sic].
In oral evidence, Ms Kanda said she worked front of house every day alongside Gill. She was not involved in the back end of the business. Everyone got paid into their accounts, including Gill. He sometimes got cash from Kanda because he had a tough time sometimes. She saw Kanda give money to Gill at the restaurant. She doesn’t remember what dates she saw this. She knows what the money was for because she asked Kanda and he said it was salary. Gill was on the books but was working cash as well. Gill asked if he could work a few hours on the books and the rest he needed as cash. Ms Kanda was paid weekly into her bank account and got pay slips.

MR JUNG GIL KIM’S EVIDENCE

Mr Kim gave evidence for Kanda. He has been employed at the Steakhouse Grill66 since 2011 and is still employed. He was a chef in the kitchen when Gill was working front of house. In an affidavit Mr Kim stated:
I am … aware that Mr Harpreet Singh used to get paid by the employer on last shift of every week even before the payday, due to his vulnerable financial condition so the employer use to pay him as per his request in cash, After calculating his Tax and super obligations [sic].
In oral evidence, Mr Kim said he heard from Kanda and another colleague, whom he could not recall, that sometimes Gill needed money so he took cash from the till. Mr Kim didn’t see this as he was in the kitchen. Mr Kim was paid a salary into an account, which he always received on time.

CONSIDERATION

Operation of s 557C of the Act

Gill contended that because there is no record of Kanda making payment to him in cash, s 557C of the Act applies, and Kanda bears the burden of disproving Gill’s non-payment claim.
Section 557C of the Act regulates how the Court must approach the burden of proof in circumstances where the employer contravenes record keeping or pay slip requirements. It provides relevantly as follows:
557C Presumption where records not provided
(1)        If:
(a)in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b)             the employer was required:
(i)     by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii)     by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c)             the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2)Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
Section 557C(3) of the Act sets out the relevant civil remedy provisions, which include relevantly ss 44, 45 and 323(1).
Sections 535(1) and (2) of the Act require an employer to make and keep employee records of a kind, in a form and containing information prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Sections 535 (4) and (5) provide that an employer must not make or keep a record for the purposes of s 535 that is false or misleading in any material particular. Regulation 3.33 requires records of amounts paid to an employee to be made and kept. Regulation 3.37 requires an employer to make and keep records of required superannuation contributions, including the name of the fund to which contributions are made.

Sections 536(1) and (2) require an employer to give a pay slip within one working day of paying an amount to an employee, in a form and containing information as prescribed by the Regulations. Sections 536(3) and (4) provide that an employer must not give a pay slip for the purpose of s 536 that is false or misleading in a material particular.
It was not in dispute that no pay slip was provided in respect of any payment of Gill’s annual leave by Kanda. It was also not in dispute that the pay slips were the only relevant record regarding wages. It is evident from the pay slips that they did not contain details of Gill’s superannuation fund.
In final submissions, Counsel for Kanda did not dispute the application of s 557C, accepting that the pay slips did not reflect the cash payment and that the material error in the pay slip reversed the presumption, and accepting that Kanda had the burden of disproving the allegations of non-payment made by Gill.
Accordingly, I have considered the evidence in light of the application of s 557C.

General issues of credibility and reliability of the evidence

The allegations made by Gill and Kanda against each other are serious. On Gill’s evidence, Kanda falsely represented that he was making payments to Gill, and remitted taxation to the ATO accordingly, whilst paying Gill nothing. On Kanda’s evidence, Kanda paid all of Gill’s wages and annual leave in cash payments, meaning Gill has dishonestly brought this proceeding for money he has already been paid.
I had concerns with the credibility and reliability of both Gill and Kanda’s evidence. I formed the view in hearing their evidence that there was more to the background of their relationship and the financial arrangements between them than was disclosed to the Court by either witness. Further, in considering this matter subsequent to the hearing it became apparent to me that the dates of the employment coincided with the commencement of the Covid-19 pandemic in March 2020. Neither witness referred to this event, each giving evidence that Gill worked full time regular hours over the period.
My general concerns have caused me to treat the evidence of both Gill and Kanda with caution, and I have addressed further specific concerns in the course of considering each aspect of Gill’s claim below.

The superannuation claim

It was not in dispute, and I find, that Kanda did not make required superannuation contributions on Gill’s behalf. On Kanda’s own evidence, the superannuation was not paid, and instead became the subject of a superannuation guarantee charge and payment plan with the ATO.
However, I am satisfied that by way of that payment plan, Kanda has subsequently made the requisite payments to the ATO, to be remitted to Gill. In particular, I rely on Gill’s affidavit evidence of his conversation with an ATO representative to this effect, which corroborates Kanda’s evidence that he has subsequently remitted these funds to the ATO. Accordingly, I accept that Kanda has already completed the steps to rectify the non-payment of superannuation contributions, and I will not make an order that Kanda remit superannuation on behalf of Gill in light of this.

The annual leave claim

I am not satisfied that Gill’s allegation of non-payment of $1434.90 in annual leave has been disproved by Kanda.
I have reached this conclusion because Kanda gave three conflicting versions as to how and when the annual leave was paid in cash. I formed the impression that Kanda proffered a new version each time it became apparent to him that the previous evidence he had given was not plausible given the documentary evidence. Accordingly, I did not believe Kanda’s evidence that Gill’s annual leave was paid in cash. Further, the final pay slip, dated 1 July 2020, reflects that Gill has an annual leave balance of 67.2313, and there is no pay slip at all reflecting that annual leave having been paid.

The unpaid wages claim

Counsel for Kanda contended that Gill’s financial circumstances at the time he brought the claim, in light of his lengthy delay in doing so, establishes his real motive for bringing the claim and lying to the Court. Yet, the relevant documents relied upon illustrate that Gill was being pursued for outstanding debts in October and November 2020 and March 2022, as well as in 2024. Accordingly, I am not positively persuaded that Gill’s circumstances in 2024 were sufficiently different to those which existed at those earlier dates to sustain this submission.
However, there were a number of matters referred to by Kanda’s counsel which I agree undermined Gill’s evidence that he was not paid at all. Gill’s evidence as to how he survived financially in the absence of payment was vague and imprecise. His declaration of the income to the ATO was inconsistent with not receiving that income, albeit that he provided an explanation for why he declared it. Gill’s lack of evidence as to his second bank account was insufficient to establish that he had not deposited cash to the second bank account from Kanda. Despite his explanation as to his lack of knowledge, Gill’s failure to take any formal action in respect of the non-payment for a lengthy period after the employment, notwithstanding significant financial pressure due to his loans and credit card debts, was difficult to reconcile.
Gill also changed his evidence during cross examination about some matters which affected my view of his general credit. Gill initially explained the Queensland transactions in his bank account by saying he had returned to Queensland in January 2020. He then said he gave his bank card to his friend, however, gave no persuasive explanation as to why he would do so. His pay slips indicate he was continuously working 38 hours a week in Melbourne in January 2020. Further, Gill’s evidence that Kanda provided him with the reference letter by email, then by post, then in person by hard copy was implausible. I am not satisfied that the reference letter was provided by Kanda to Gill. Further, Gill’s ultimate evidence that he had also raised the payment issue when visiting Kanda in Melbourne conflicted with his earlier evidence that he had not taken any action to pursue the matter subsequent to the employment.
Taken on its own, in light of the issues of credit and reliability I have identified, I do not consider Gill’s evidence sufficient to establish on balance that he was not paid the sum claimed. However, because of s 557C, this is not the relevant question. Rather, it is Kanda who must positively prove that Gill was paid the sum claimed, despite these issues of credit relating to Gill’s evidence.
I also had concerns about the credibility and reliability of Kanda’s evidence. This arose from his implausible and contradictory evidence as to payment of the annual leave sum, which I have rejected. However, it also arose from his evidence as to the general cash payments. Regarding the unpaid wages allegation, Kanda changed his evidence as to what occurred on the first occasion he claimed to have paid Gill cash, and the timing of his conversation with his accountant. As with Kanda’s change of evidence about the annual leave payment, I formed the impression that Kanda proffered the new version after it became apparent to him that the first pay slip had not yet been issued at that time. Accordingly, I did not believe Kanda’s evidence as to the first cash payment, and this led me to doubt Kanda’s other evidence that he paid Gill exactly what Gill was owed on Friday of each week. I am not positively satisfied, based on Kanda’s evidence alone, that Gill was paid the sum he is owed pursuant to a weekly cash payment arrangement.
Mr Kim’s evidence was of no assistance to Kanda’s case. His affidavit stated he was ‘aware’ of such an arrangement, however his oral evidence was that he did not see any cash payment made to Gill and had only heard this from Kanda and an unnamed colleague. He was simply repeating what Kanda had told him.
The language and content of the affidavits affirmed by Mr Sandeep Kanda and Ms Kanda was similar (and similar to Mr Kim’s affidavit). They both stated they were aware of the three key elements of Kanda’s evidence, being that Gill had financial difficulties, was paid in cash (although both used the term ‘mostly’) and was paid before payday. Neither affidavit stated how they were aware of these matters. I provided Kanda’s counsel with the opportunity to lead evidence as to the extent of any discussions between these witnesses and Kanda but no evidence of this nature was given.
Mr Sandeep Kanda’s oral evidence was internally contradictory. He said he didn’t know whether Gill had been paid but also said he knew he had been paid cash for his salary. Ms Kanda’s evidence was inconsistent with Kanda’s evidence that the full payment was made in cash, despite her saying it was based on what Kanda told her. Nothing in Ms Kanda’s oral evidence indicated Gill had directly spoken to her about financial troubles. Mr Sandeep Kanda’s affidavit evidence as to Gill mentioning his tight financial situation changed in his oral evidence. Whilst both witnesses said that they saw Gill being paid cash by Kanda, neither could say when. Ms Kanda did not say how often, and Mr Sandeep Kanda said only two or three times.
Given Mr Sandeep Kanda and Ms Kanda’s relationship to Kanda, the similarity in their affidavit evidence, and the inconsistencies in their evidence, I considered each of their evidence to lack credibility and I gave it no weight. I did not consider either of them to be an independent witness. I formed the view that they had Kanda’s interests in mind, and that their evidence was largely derived from what Kanda had told them. In particular, I was not satisfied that either of them had any direct knowledge of any cash payment arrangement between Kanda and Gill. I did not consider their evidence of observing cash payments being made by Kanda to Gill to be reliable, and I reject it.
In any event, even if I had accepted the evidence as to observing cash payments, the evidence was insufficient to establish that regular cash payments were made or that the cash payment arrangement asserted by Kanda was in place. I consider, had such an arrangement been in place, with payments made each Friday at the end of Gill’s shift, this would have likely been widely and regularly observed by co-workers. This was not the effect of the evidence of either Mr Sandeep Kanda or Ms Kanda.
There was no other independent evidence of the cash payment arrangement. Kanda produced no documentary evidence, such as how he had accounted for these payments from the business cash receipts. Kanda’s accountant was not called to give evidence, despite Kanda stating that he expressly approved the cash payment arrangement. Kanda’s explanation as to the Xero system requiring payment to a bank account to issue a pay slip was not verified by any kind of documentation.
It was not in dispute, and I find, that Kanda remitted taxation to the ATO in respect of the income recorded on the pay slips as having been paid to Kanda. However, it was also not in dispute that Kanda had not made requisite superannuation contributions. Nor, based on my findings, had he paid the annual leave payments owing to Gill. On balance, taken together, these matters are neutral as to the likelihood that Kanda made cash payments of Gill’s wages.
Accordingly, notwithstanding the matters I have identified which throw doubt on Gill’s allegation of non-payment, Kanda has failed to positively persuade me on the balance of probabilities that he paid Gill in cash the amounts stated on Gill’s pay slips to have been paid to his bank account. In light of the reverse onus in s 557C, Kanda has failed to disprove Gill’s allegation and Gill’s claim must succeed.
I will order that Kanda pay Gill the sum of $18,243.18, being $16,808.28 in respect of unpaid wages and $1434.90 in respect of unpaid annual leave.
Gill applied for interest pursuant to s 547 of the Act. Section 547(2) requires that on application, the Court must include an amount of interest in the sum ordered, unless good cause is shown to the contrary. Section 547(3) requires the Court to determine interest taking into account the period between the day the relevant cause of action arose, and the day of the order.
I consider there is good cause not to order interest from the date Gill’s cause of action accrued, given the absence of a clear explanation by Gill as to his failure to demand payment or take any formal action for a lengthy period after the employment ended. I will not order pre-issue interest in light of this. However, I will order interest be paid from the date of commencement of the proceeding, being 1 July 2024, to today’s date. Section 547 does not specify the rate at which interest is to be calculated. I have applied the rate set out in the Penalty Interest Rates Act 1983 (Vic), which is 10 per cent. Accordingly, I award interest of $1,839.31.

[2025] VMC 8

4 July 2025