Gill v Sehajdeep Pty Ltd

[2018] FCCA 4033

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v SEHAJDEEP PTY LTD [2018] FCCA 4033

Catchwords:
INDUSTRIAL LAW – Small claim – underpayment of wages proved – failure to maintain accurate wage records.

Legislation:
Fair Work Act 2009 (Cth), s.45
Fair Work Regulations 2009 (Cth)
Restaurant Industry Award 2010

Applicant: JASKIRAN KAUR GILL

Respondent: SEHAJDEEP PTY LTD

File Number: MLG 1307 of 2018

Judgment of: Judge McNab

Hearing date: 5 September 2018

Date of Last Submission: 5 September 2018

Delivered at: Melbourne

Delivered on: 5 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Vernon Da Gama

Solicitors for the Applicant: Vernon Da Gama & Associates

Respondent: Mr Singh (a director of the Respondent)

ORDERS

THE COURT DECLARES THAT:

1. The Respondent SEHAJDEEP PTY LTD ACN 609 053 394 has contravened section 45 of the Fair Work Act 2009 (Cth) and the Restaurant Industry Award 2010 by failing to pay the applicant’s entitlements of $4,255.33.

THE COURT ORDERS THAT:

1. The Respondent pay the Applicant $4,255.33 less applicable taxation.

2. The Respondent remit superannuation calculations based on $4,255.33 to the Applicant’s superannuation fund pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLG 1307 of 2018

JASKIRAN KAUR GILL

Applicant

And

SEHAJDEEP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from delivered Ex-Tempore Reasons)

1. On 14 May 2018 the applicant filed a small claim under the Fair Work Act 2009 (Cth) seeking payment of:

   a)wages in the sum of $1,413.20;

   b)penalty rates of $2,688.25; and

   c)interest calculated in those sums of $153.88,

   making a total claim of $4,255.33.

2. The applicant says that she was employed at the respondent’s Indian restaurant:

   a)from 25 April 2017 to 28 June 2017, undertaking general waiting duties of both food and drinks, including cleaning tables, receipt of money, taking reservations, greeting and seating guests and serving customers; and

   b)from 29 June 2017 to 7 September 2017, cooking and preparing food and meals, and cleaning and maintaining the kitchen and food preparation area,

   (‘the employment period’).

The proceedings

1. Mr Singh of the respondent company notified the Court on 15 June 2018 that:

   a)he was aware that he has a hearing in the Federal Circuit Court of Australia on 5 September 2018;

   b)he lives on the Gold Coast and runs a business there;

   c)he did not have enough workers to look after his business;

   d)he is the only chef in the restaurant;

   e)he wished the Court to telephone him for the purpose of the hearing; and

   f)he had proof of payslips and group certificates to answer the claim.

2. The matter proceeded with the Court contacting Mr Singh and gave evidence by telephone. He was cross-examined by Mr Da Gama who was granted leave to appear on behalf of Ms Gill.

Consideration

1. I accept Ms Gill’s evidence that she was studying for part of the employment period, and that she was, in fact, working four days a week, five hours per day, largely in the duties that she described.

2. I am not convinced that she was working as a cook or as a chef without supervision, but she was certainly doing food preparation which would form part of a junior chef’s duties.

3. I am satisfied that she worked 20 hours per week, being five hours a day from Thursday night through Sunday night.

4. The respondent produced wage records by way of correspondence from the respondent’s solicitor (Legal Guru of Lawson Street, Southport, Queensland).Those records purport to show that the applicant was working 15 hours per week at a wage rate of $23.33 per hour, leading to a pay of $350 per week.

5. I do not accept that those wage records represent genuine wage records which were produced at the time that the wage payments were required to be made.

6. Mr Singh, on behalf of the respondent, said that:

   a)the applicant was not working 20 hours per week; and

   b)there was no capacity for the restaurant to employ a person working 20 hours per week in the position described by the applicant.

7. That is not consistent with the fact that that the respondent had applied to act as the applicant’s sponsor for visa purposes, with the applicant being sponsored to work 38 hours per week as a chef. That sponsorship was obtained by the respondent prior to the applicant’s employment.

8. I am satisfied that the applicant did work 20 hours per week and is entitled to be paid in accordance with the Restaurant Industry Award 2010, and that the underpayments which are outlined in the details of claim have been made out.

9. I note that the respondent has not kept wage records as required by the Fair Work Regulations 2009 (Cth) regarding payslips and time-keeping records.

10. I find that the applicant is entitled to the sum claimed.

11. I make no comment about the other matters raised by the applicant dealing with a subclass 457 visa because it is not necessary for me to do so.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  7 April 2020