Kang v Kim

[2013] FCCA 593

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG v KIM [2013] FCCA 593

Catchwords:
INDUSTRIAL LAW –Fair work – small claims – undefended hearing – orders made.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 61, 139, 548
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440
McShane v Image Bollards Pty Ltd [2011] FMCA 215

Applicant: MINSEOG KANG

Respondent: SHANE (SUNGSUP) KIM

File Number: SYG 2880 of 2012

Judgment of: Judge Nicholls

Hearing date: 8 May 2013

Date of Last Submission: 8 May 2013

Delivered at: Sydney

Delivered on: 26 June 2013

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. The respondent contravened the Fair Work Act 2009 (Cth).

2. The respondent pay the applicant the sum of $2,310.90 less tax within 28 days of the date of this order.

3. The respondent pay the applicant’s costs set in the amount of $515.00 within 28 days of the date of this order.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2880 of 2012

MINSEOG KANG

Applicant

And

SHANE (SUNGSUP) KIM

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Minseog Kang (“the applicant”), made on 5 December 2012, pursuant to the Fair Work Act 2009 (Cth) (the “FW Act”). The applicant elected to make the application under the small claims procedure provided for in s.548 of the FW Act. The applicant alleges that his former employer, Mr Shane (Sungsup) Kim (“the respondent”), owed him unpaid wages to the sum of $2,310.90.

Is the Application within the Small Claims Division?

1. For the applicant’s claim to be considered, and dealt with, under the procedure referred to above it must relate to an amount that the respondent was required to pay, as set out in s.548(1A) of the FW Act. Further, unless prescribed by the Fair Work Regulations 2009 (Cth) (see Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 at [10] per Judge Lucev and McShane v Image Bollards Pty Ltd [2011] FMCA 215 at [4] per Judge Lucev), the Court cannot order payment of a sum more than $20,000.

2. The applicant’s claim, as originally set out in his points of claim (known as the “Form 5”), was that the respondent failed to pay him wages he was owed, by “verbal agreement”, to the sum of $2,310.90 (Parts “F”, “G” and “H” of the Form 5).

3. As such, the alleged breach by the respondent relates to an amount that the respondent was required to pay because of “a safety net contractual entitlement” (s.548(1A)(a)(ii) of the FW Act and noting that a “safety net contractual entitlement” is defined in s.12 of the FW Act as “…an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in…” s.61(2), dealing with National employment standard, and s.139(1), dealing with modern awards). Further, the order sought by the applicant is for a sum less than $20,000 and therefore is within the limits of the award that the Court can make (s.548(2)(a) of the FW Act).

Before the Court

1. The matter first came before the Court on 19 December 2012. At that time, the applicant appeared in person and was assisted by an interpreter in the Korean language. There was no appearance by, nor for, the respondent. On that occasion, I made orders providing the applicant with an opportunity to file and serve further evidence in support of his application. Further, the matter was referred to mediation. That mediation did not occur.

2. On 22 March 2013, at the directions hearing, the applicant again appeared in person and was assisted by an interpreter in the Korean language. The applicant’s wife, who had been sitting in the body of the Court, was granted leave to sit at the bar table and assist the applicant. There was still no appearance by the respondent.

3. On that occasion, the applicant stated, from the bar table, that he had posted the Court documents to the respondent. However, he did not have an affidavit of service to provide to the Court. Further, despite orders affording him the opportunity to do so, the applicant had not filed any further evidence in support of his application. In the circumstances, I set the matter down for further directions on 8 May 2013 and urged the applicant to obtain some relevant advice. Orders were made providing the applicant with a further opportunity to file and serve any evidence in support of his application.

4. I note that, following that Court event, the applicant filed the following documents:

   1)An affidavit, sworn by the applicant on 29 April 2013 (“the applicant’s first affidavit”), in which he set out his employment relationship with the respondent and details of his attempts to recover the claimed unpaid wages.

   2)An affidavit, affirmed by the applicant on 1 May 2013 (“the applicant’s second affidavit”), in which the applicant set out details of telephone and “text message” contact he had had with the respondent on 29 April 2013 regarding the service of “court documents” ([2] of the applicant’s second affidavit). Copies of those text messages, variously in English and Korean text, were annexed to the affidavit.

   3)An affidavit of service, affirmed by the applicant on 1 May 2013. That document indicated that the applicant had emailed to the respondent the Court orders made in this matter, as well as his application to the Court, the Form 5 and his affidavits of 5 December 2012 and 29 April 2013.

   [I note that the applicant had previously filed an affidavit, “sworn/affirmed” by him on 5 December 2012, however before the Court he did not seek to rely on that affidavit.]

5. At that further directions hearing, the applicant again appeared in person and was assisted by an interpreter in the Korean language and, with the leave of the Court, his wife. There was still no appearance by the respondent.

6. On that occasion, the applicant sought to rely on his affidavit of service and his second affidavit to show that service had been effected on the respondent, and that the respondent was on notice of the Court event. The applicant stated, from the bar table, that he had spoken to the respondent and told him of the further directions hearing, but that the respondent had said that he would have a “violent reaction” and “would not come”. He said that the respondent was abusive, but it was clear that he had told the respondent of the date of the hearing of this matter and the respondent said to him: “I know it!”.

7. In light of the material set out in the applicant’s second affidavit and affidavit of service, I was satisfied that the respondent was properly served with the Court documents and was on notice of the proceedings, as well as the listing of the matter for further directions on 8 May 2013. Despite being on notice, the respondent had failed to appear, nor had anything been heard by the Court from the respondent asking for an adjournment of the listing, or indicating that he had any difficulty in attending. In the circumstances, I found that it was appropriate to proceed to hear the application to the Court in the respondent’s absence. The matter proceeded to a final hearing in the absence of the respondent pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

At the Hearing

1. The applicant, with the assistance of an interpreter in the Korean language, gave oral evidence to the Court in support of the application and the claims as set out in the Form 5.

The Claims

1. The factual background surrounding the applicant’s complaint was initially set out in the Form 5. Further, at the final hearing of the matter, the applicant relied on his first affidavit. Even further, before the Court and under oath, the applicant gave evidence in support of, and clarifying, his claims as set out in those documents.

2. The applicant’s complaint, as articulated in those two documents and his oral evidence, is as set out immediately below.

3. On 12 September 2012, the applicant “saw” an advertisement on a “Korean website called Hojunara” for a “part-time skilled tiler” ([2] of the applicant’s affidavit of 29 April 2013, emphasis in the original). In response to that advertisement, on 12 September 2011, he telephoned “Shane Sungsup Kim” and they came to a “verbal agreement” that the applicant would work part time for the respondent for a sum of $300.00 per day (items 16, 19 and 22 of the Form 5 and [3] of the applicant’s first affidavit).

4. The applicant’s oral evidence was that he commenced working part time for the respondent the following day, 13 September 2011. [I note that, in his oral evidence, the applicant clarified that while the Form 5 records that the “Period of employment” was from “3/11/2011” to “4/2/2012”, that he had been employed from 13 September 2011 to 4 February 2012. The period recorded in the Form 5 (3 November 2011 to 4 February 2012) related to the period for which he was not paid wages - see further below.]

5. The applicant was variously, paid in cash and by direct deposit in his bank account. Further, he was paid several days after the completion of each job ([6] of the applicant’s first affidavit and the applicant’s oral evidence).

6. From 3, or 12, November 2011, the applicant ceased to be paid by the respondent. [I note that, in his Form 5 and oral evidence to the Court, the applicant claimed that he was not paid by the respondent from 3 November 2011. However, in his first affidavit, the applicant claimed that he was not paid from 12 November 2011 – see [11] – [12] of that affidavit – see further below.]

7. In January 2012 the applicant commenced working full time for the respondent, with a wage of $300.00 a day. He continued not to be paid by the respondent and, on 4 February 2012, “sought other work”. As a result, the applicant claimed that the sum of $4,310.90 was not paid to him for the period 3 (or 12) November 2011 to 4 February 2012 (item 21 and Part I of the Form 5 and [11] – [12] of his first affidavit).

8. The applicant subsequently obtained two payments from the respondent, each for $1,000.00 (Part I of the Form 5). As a result, the applicant only sought an order in the sum of $2,310.90 (item 26 and Part I of the Form 5).

Consideration

1. Although it must be said that there were some inconsistencies between the applicant’s oral and affidavit evidence, and the matters set out in the Form 5, for the most part the applicant’s evidence, and his explanation for the inconsistencies, was accepted by the Court.

2. For whatever reason, the respondent elected not to participate in these proceedings. Once the Court was satisfied that the respondent had been served with notice of these proceedings and notice of the Court event, the respondent’s absence meant that the applicant’s evidence, for the most part, remained unchallenged.

3. In these circumstances, subject to what is set out immediately below, I have no reason not to accept the applicant’s evidence. In particular, and relevantly, that the applicant was employed by the respondent, he was employed on particular terms as to how much he would be paid ($300 per day) and when he would be paid. Ultimately, he is owed the amount that he claims.

4. However, it must be said there was some inconsistency, or lack of clarity, between the applicant’s claims as set out in writing and his evidence to the Court. This was as follows.

5. First, the date on which he claimed to have started employment with the respondents (see [16] above). I accept the applicant’s explanation for this discrepancy as provided in his oral evidence to the Court. That is that, in the Form 5, he recorded the period for which he claimed he did not receive payment from the respondent for work performed.

6. The Form 5 is clear in what was relevantly being asked. That is “period of employment”. However, I accept that it was reasonable for the applicant, as a person who has little, if any, capacity in English and who was reliant on others to assist with the completion of the Form 5, to focus on the period of employment for which he was not paid (the basis for his claim) as opposed to the date he commenced employment. Ultimately, the actual starting date of his employment is not relevant to the disposition of his application to the Court.

7. Further, before the Court, the applicant did not seek to mislead the Court in this regard. His evidence was straightforward.

8. The second discrepancy concerned when the applicant ceased to be paid by the respondent for work done (see [18] above). I accept the applicant’s evidence that he misunderstood the person who assisted him in completing the Form 5 in this regard. Before the Court the applicant was clear as to the relevant date. He confirmed that the relevant date from which he was not paid was 3 November 2012. I take the view that whatever was mentioned in the applicant’s affidavit (which was prepared with assistance), that what the applicant told the Court, under oath, should be preferred.

9. The third discrepancy involved the character of the applicant’s employment. That is, whether it was full time or part time employment (see item 23 at part F of the Form 5). Before the Court, the applicant explained that he commenced work with the respondent on a part time basis but, in January 2012, he commenced full time employment.

10. I understood the applicant’s reference here to be that he commenced work with the respondent and would be given work for a period of days as was required. However, from January 2012, he was required consistently and continuously throughout the working week.

11. In any event, nothing of substance turns on this. The arrangement with the respondent (which I accept on the applicant’s evidence) was that the applicant would be paid a certain amount in relation to each day worked. Whether this was “part” or “full” time employment made no difference to this arrangement.

12. In all, therefore, the applicant’s case is made out on the facts presented as ultimately explained by him in his evidence. In these circumstances, it is appropriate to make the order that the applicant seeks here.

Costs

1. The applicant has had to institute these proceedings in order to recover wages owing to him. In the circumstances, it is appropriate that he be able to recover the filing fee from the respondent. I will make an order accordingly.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  26 June 2013