Kaur v P & G Accounting Solution Pty Ltd
[2025] FedCFamC2G 30
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v P & G Accounting Solution Pty Ltd [2025] FedCFamC2G 30
File number(s): MLG 2666 of 2021 Judgment of: JUDGE FORBES Date of judgment: 23 January 2025 Catchwords: INDUSTRIAL LAW – Fair Work – application for compensation and pecuniary penalties alleging serious contraventions of the Fair Work Act – where applicant performed work for putative employer over two distinct periods – whether applicant was employed or engaged in unpaid work experience – whether employment was continuous - where the arrangement between the parties had a migration purpose – where applicant was employed for one of the two periods – whether the respondents required the applicant to pay money to fund the costs of her employment – whether employee subjected to undue influence or pressure - where payments made by the applicant to the respondent – whether by reason of employee’s payments the employer discharged obligations under relevant Award and statutory obligations – determination of effective date of termination – where arrangement after termination intended to give impression of ongoing employment – contraventions of Fair Work Act found – accessorial liability of business owner - declarations made Legislation: Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) s 12, 13, 44, 45, 61, 90, 117, 124, 125, 293, 323, 325, 344, 345, 536, 545, 550, 557A, 793
Migration Act 1958 (Cth) s 245AR
Migration Amendment (Charging for a Migration Outcome) Act 2015 (Cth)
Cases cited: Ashby v Slipper [2014] FCAFC 15
Briginshaw v Briginshaw (1938) 60 CLR 336
CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Chiodo v Silk Contract Logistics [2023] FCA 1047
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consume Commission[2007] FCAFC 132
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
Evans v Braddock[2015] NSWSC 249
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365
Fair Work Ombudsman v Foot & Thai Massage [2021] FCA 1241
Fair Work Ombudsman v Hu [2019] FCAFC 133
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Fox v Percy (2003) 214 CLR 118
Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
JMC Pty Ltd v Federal Commissioner of Taxation [2022] FCA 750
Kazal v Thunder Studios Inc (California) [2023] FCAFC 174
Kuligowski v Metrobus [2004] HCA 34
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Liberato v R (1985) 159 CLR 507
Mealey v Power [2015] NSWSC 1678
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391
Primerano v Schisan Investments Pty Ltd [2025] FCA 15
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Roberts-Smith v Fairfax Media Publications Pty Ltd(No.41) [2023] FCA 555
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873
Watson v Foxman (1995) 49 NSWLR 315
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 444 Date of hearing: 20-21 April, 5-7 July, 25 October 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Ukrani & Co Counsel for the Respondents: Mr Hassan Solicitor for the Respondents: Vernon Da Gama & Associates ORDERS
MLG 2666 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP KAUR
Applicant
AND: P & G ACCOUNTING SOLUTION PTY LTD
First Respondent
PARAMPREET SINGH RAJPUT
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
23 JANUARY 2025
THE COURT DECLARES THAT:
1.The Applicant was employed by the First Respondent from 4 February 2019 until 21 May 2019 inclusive (the Employment).
2.In respect of the Employment, the First Respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) (FW Regulations):
(a)s 45 of the FW Act by failing to pay the Applicant the minimum rate of pay in contravention of the Banking, Finance and Insurance Award 2020 (the Award);
(b)s 45 of the FW Act by failing to pay the Applicant’s wages on a weekly, fortnightly or monthly cycle as required by cl 16.1 of the Award;
(c)s 45 of the FW Act by failing to make sufficient superannuation contributions to satisfy the obligations under the Superannuation Guarantee as required by clause 19.2 of the Award;
(d)s 45 of the FW Act by failing to pay accrued annual leave on termination in accordance with s 90 of the Act;
(e)s 117 of the FW Act by failing to provide written notice of termination and a notice period of payment in lieu thereof;
(f)s 125 of the FW Act by failing to provide the Applicant with a copy of the Fair Work Information statement;
(g)s 323(1) of the FW Act by failing to pay the Applicant’s wages at least monthly;
(h)s 325(1)(b) of the FW Act by requiring payments from the Applicant;
(i)s 344(e) of the FW Act by subjecting the Applicant to undue influence or undue pressure, by reason of her migration status, to agree to a deduction from the amounts to which she was lawfully entitled in relation to the performance of work;
(j)s 345(1) of the FW Act, by requiring payments from the Applicant, the Respondent knowingly misrepresented the applicant’s workplace rights; and
(k)s 536 of the FW Act by failing to provide the Applicant with payslips in the form prescribed by the FW Regulations or which included the information prescribed by the Regulations, within one day of making payment to her in relation to the performance of work or at all.
3.The Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the First Respondent’s contraventions as set out in 2(a) to (k) above.
AND THE COURT ORDERS THAT:
4.The proceeding be listed for a case management hearing on 6 February 2025 at 9:30am for the purpose of making orders for the filing of any further evidence and written submissions on the questions of penalties, compensation and costs.
5.In the event the parties agree to an acceptable timetable and orders are made by consent, the case management hearing will be vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
INTRODUCTION
[1]
DRAMATIS PERSONAE
[15]
EVIDENCE AND MATERIALS RELIED UPON
[16]
Applicant
[18]
Respondents
[19]
BACKGROUND
[22]
Introduction to the parties
[22]
Circumstances of the applicant’s introduction to KPG
[27]
Introduction to KPG
[34]
The first meeting with the respondents
[38]
Work performed by the applicant between August and November 2018
[62]
The 407 visa application and KPG’s sponsorship
[67]
Remuneration for the first period of work
[74]
Return to India and visa grant
[80]
Second work period
[84]
Employment documents
[85]
Work performed
[95]
The alleged kickback arrangement
[114]
Tendency evidence
[132]
The alleged $50,000 demand
[140]
The Warning Letter
[151]
After the warning letter - alleged dismissal
[174]
The relationship post-13 May 2019
[192]
Mediation
[198]
The applicant’s “resignation” and the experience letter
[213]
Jatinder goes public
[227]
Unfair dismissal application 23 May 2020
[230]
Subsequent legal proceedings
[234]
RELIEF SOUGHT BY THE APPLICANT
[238]
Payment for work performed
[239]
Overtime
[240]
Entitlements on termination
[241]
Notice
[243]
Superannuation
[244]
Payslips and pay records
[245]
Access to the Award and National Employment Standards
[246]
Compensable loss
[247]
Accessorial liability
[249]
Serious contraventions
[251]
APPROACH TO FACT FINDING AND PROOF WHEN CREDIT IS IN ISSUE
[254]
Proof
[256]
Credit
[267]
Demeanour
[278]
Documentary evidence
[281]
Concluding remarks about fact-finding
[286]
CONSIDERATION AND FINDINGS
[290]
Observations regarding credit
[290]
The Applicant
[294]
Jatinder Singh Gill
[302]
Mr Rajput
[309]
Other witnesses
[316]
ISSUES TO BE DETERMINED
[323]
Was the first period unpaid training or paid employment?
[325]
Claim for reimbursement of travel expenditure and sponsorship and migration agent fees
[349]
Claims arising from the second period of work
[355]
Period of employment
[364]
Events of late May 2019
[368]
The extension agreement (1 month or 12 months of medical leave)
[373]
Finding in relation to termination
[381]
Entitlement to remuneration and hours of work
[385]
The kickback arrangement
[394]
The $50,000 payment
[408]
Other claims of non-compliance by the respondents
[417]
Payslips
[417]
Fair Work Information Statement
[424]
Access to the Award
[426]
Accessorial liability
[428]
DISPOSITION AND NEXT STEPS
[440]
JUDGE FORBES
INTRODUCTION
This is a case of two competing and largely irreconcilable narratives. The facts are complex but it is fundamentally a credit case.
In a nutshell, the applicant, Ms Gagandeep Kaur is an Indian national and temporary resident of Australia. For a period of time, Ms Kaur performed work for the first respondent (known as KPG Taxation), an accounting practice owned and operated by the second respondent, Mr Rajput. KPG sponsored the applicant’s 407 training visa.
KPG admits that it employed the applicant for a time, however the parties disagree about when the employment commenced and when it came to an end. These dates are relevant to the relief sought in these proceedings, including Ms Kaur’s claim for underpayment of wages and other entitlements.
The applicant alleges that she was employed by KPG from on or about 27 August 2018 until about April 2020.[1] The applicant contends that her employment with KPG was continuous but divided into two time periods. The first period, which ended in November 2018, and the second, which commenced from February 2019, were separated by the need for the applicant to go offshore to apply for the training visa.
[1] Further Amended Statement of Claim (FASOC) at [4]
The Respondents deny continuous employment. The respondents contend that the applicant initially participated in a practical course of unpaid work experience with KPG Taxation between August 2018 and November 2018 before being employed by KPG from 4 February 2019. The respondents plead that employment was terminated on 22 May 2019[2] and deny that it continued until April 2020 as alleged by the applicant.
[2] Further Amended Defence at [1.8]
A key issue in the case is whether the first period of “work” should be characterised as unpaid training or employment for which the applicant should have been paid.
The applicant alleges that KPG Taxation contravened the Fair Work Act 2009 (Cth) (FW Act) because, among other things, it failed to pay her wages for the entire period of her employment and failed to honour a commitment to reimburse expenses associated with the training visa. The applicant seeks compensation under the FW Act in respect of unpaid wages and entitlements which accrued on the termination of her employment.
The applicant pleads that the respondents engaged in a pattern of unlawful conduct which she contends reach the threshold of being “serious contraventions” within the meaning of s 557A of the FW Act. She seeks orders for the imposition of significant penalties against the respondents.
Specifically, Ms Kaur alleges that the respondents engaged in egregious and illegal practices, including what was described as a “kick-back” arrangement, whereby she and/or her brother paid money to the respondents which was then transferred back to her as salary – put simply, the applicant alleges that she was required by the respondents to pay her own wages.
The applicant also alleges that the respondents demanded that she make a one-off payment of $50,000 to secure KPG’s ongoing sponsorship of her visa. She alleges that KPG and its owner Mr Rajput engaged in a campaign of harassment and intimidation during her employment and that her employment was terminated when she refused to meet their demands.
The applicant also seeks a finding that Mr Rajput was the principal architect of the sham working arrangement and was involved in the contraventions within the meaning of s 550 of the FW Act.
The respondents deny all such conduct and allege that the applicant and her brother are engaged in a malicious vendetta. The respondents allege that the allegations against them have been fabricated and that the litigation has been pursued for improper or ancillary purposes, including the applicant’s objective of remaining in Australia.
In this matter migration and employment law issues are inextricably linked. As will been seen in this judgment, the case reveals a complex and opaque web of factual issues which call into question the credibility of those who gave evidence. Both parties cannot be telling the truth. After hearing all the evidence I was left with the distinct impression that there had been a lack of candour from both sides and that the Court had not been favoured with the whole story. The unvarnished truth, I anticipate, lies somewhere behind the narratives the Court has been asked to accept.
The trial was conducted on the basis that liability issues would be determined before consideration (if necessary) of penalties, compensation and costs. The hearing proceeded over five days during which the Court received a large body of evidence. Both parties were represented by counsel. Mr Aleksov appeared on behalf of the applicant and Ms Hassan appeared for the respondents. Evidence-in-chief was on affidavits and most, but not all, witnesses were cross examined. After the evidentiary cases closed, detailed written submissions were filed and they were addressed orally by counsel at a further hearing.
DRAMATIS PERSONAE
The following judgment is necessarily detailed to account for the parties’ competing narratives. These reasons will be better understood if I identify, by name and role, the many individuals who gave evidence or were otherwise mentioned in the parties’ affidavits. Relationships between these individuals assists to understand the context in which the dispute arose and how the evidence is to be assessed.
·Ms Gagandeep Kaur (Ms Kaur), the applicant;
·Mr Jatinder Singh Gill (Jatinder), the applicant’s brother;
·Mr Manjinder Sekhon, the applicant’s preferred migration agent;
·Mr Parampreet Singh Rajput (Mr Rajput), the second respondent and managing director of the first respondent (KPG Taxation);
·Ms Simmy Bhatia (also known as Gagandeep Kaur, but no relation to the applicant) (Ms Bhatia), former employee of KPG Taxation;
·Ms Ziniya Singh, former employee of KPG Taxation;
·Mr Parjinder Singh Sidhu, employer of Jatinder who helped connect the applicant with Mr Rajput;
·Mr Praveen Gulati, landlord for KPG Taxation’s Craigieburn office and friend of Mr Parjinder Singh Sidhu;
·Mr Raj Barot, former manager of KPG’s Craigieburn office;
·Ms Navdeep Kaur, alleged former employee of KPG Taxation;
·Mr Lakhbir Singh, office manager of KPG Taxation’s Dandenong office;
·Ms Sanjana Chopra, former administration manager at KPG Taxation;
·Ms Palakpreet Kaur, former general manager of KPG Taxation and sister of Mr Rajput;
·Ms Anu Gagaan, accountant with KPG Taxation;
·Ms Jasmeet Kaur, accountant with KPG Taxation;
·Ms Kanwaljit Singh, accountant with KPG Taxation;
·Ms Vibha Bal, senior accountant with KPG Taxation;
·Mr Harijot Singh, former administrator employed by KPG; and
·Mr Kabul Singh Mangat, who rented an office on the same floor as KPG Taxation’s Dandenong office.
EVIDENCE AND MATERIALS RELIED UPON
The court received a substantial body of evidence in chief, almost all of which was in affidavits filed prior to trial. Objections to the evidence were raised by both parties and were largely resolved prior to trial, with much hearsay and lay opinion being conditionally admitted but not as evidence of the truth of the matters asserted.
The primary materials were filed in four court books (CB), comprising an initial 3-volume court book, a supplementary court book, a further supplementary court book and then a fourth court book.
Applicant
The applicant relied upon the following affidavits and materials in support of her claims for relief:
(a)two affidavits of the applicant, Ms Kaur dated 3 June 2022[3] and 24 October 2022[4];
(b)three affidavits from the applicant’s brother Jatinder Singh Gill dated 3 June 2022[5], 25 October 2022 [6] and 23 May 2023[7];
(c)two affidavits of Mr Parjinder Singh Sidhu dated 17 April 2023[8] and 29 May 2023[9];
(d)affidavit of Ms Simmy Bhatia dated 12 April 2023[10];
(e)affidavit of Ms Ziniya Singh dated 14 April 2023 [11];
(f)two affidavits of Ms Navdeep Kaur dated 13 April 2023 [12] and 28 June 2023[13];
(g)evidence of subpoenaed witness Lakhbir Singh
(h)various solicitor’s affidavits of Mr Avinash Lohana, exhibiting written material from intervention order proceedings in the Magistrates Court[14] and the transcript of those proceedings[15];
(i)material received from the Department of Immigration under subpoena (which was tendered in whole); and
(j)evidence arising in the course of cross examination.
[3] Court Book (CB) 41-176
[4] CB 330-403
[5] CB 177-204
[6] CB 404-408
[7] CB 1461-1495
[8] CB 773-776
[9] CB 1497-1540
[10] CB 424-467
[11] CB 740-772
[12] CB 468-485
[13] CB 1542-1554
[14] CB 486-739
[15] CB 1024-1240
Respondents
The respondents, for their part, also read a large number of affidavits into evidence and relied upon further materials. The respondents’ evidentiary case comprised affidavits of:
(a)the second respondent, Mr Rajput, dated 23 August 2022[16], 26 June 2023[17] and 29 June 2023[18]
[16] CB 205-286
[17] CB 1241-1277
[18] CB 1278-1286
(b)Mr Palakpreet Kaur dated 19 August 2022[19] and 26 June 2023[20];
[19] CB 323-328
[20] CB 1287-1292
(c)Ms Sanjana Chopra dated 19 August 2022[21] and 24 June 2023[22];
(d)Ms Anu Gagaan dated 14 August 2022[23] and 24 June 2023[24];
(e)Ms Jasmeet Kaur dated 14 August 2022[25] and 24 June 2023[26];
(f)Mr Praveen Gulati dated 23 August 2022[27];
(g)Mr Gurmeet Suri dated 26 June 2023[28];
(h)Ms Kanwaljit Singh dated 25 June 2023[29]
(i)Ms Vibha Bal dated 24 June 2023[30];
(j)Mr Rishi Dutta dated 26 June 2023[31];
(k)Mr Kabul Singh Mangat dated 26 June 2023[32];
(l)Ms Gurmeet Sekhon dated 30 June 2023[33];
[21] CB 306-322
[22] CB 1293-1297
[23] CB 293-300
[24] CB 1298-1302
[25] CB 287-292
[26] CB 1303-1306
[27] CB 301-305
[28] CB 1312-1318
[29] CB 1319-1323
[30] CB 1324-1328
[31] CB 1329-1335
[32] CB 1336-1342
[33] CB 1343-1346
The large court books prepared and filed by the parties also included numerous documents, both relevant and not relevant, of which only some were formally tendered into evidence. There was agreement between the parties that documents contained in the court books and put to witnesses in cross-examination would be regarded as tendered and part of the evidence. To the extent that I consider any of the tendered documents probative to issues in dispute, they are referenced in the course of these reasons.
In this judgment is not possible to traverse every piece of evidence and every inconsistency – and there are many. My efforts in summarising the evidence have been directed to explaining how the competing narratives stand apart and identifying the evidence which ultimately informs and determines the key issues in dispute.
BACKGROUND
Introduction to the parties
As mentioned, the applicant, Ms Gagandeep Kaur, is an Indian citizen. She was born in Punjab, India and came to Australia in April 2009 as a 16-year-old teenager. Ms Kaur arrived in Australia on a student visa to complete her schooling and then embarked on tertiary studies. The applicant completed a Bachelor of Accounting at Cambridge International College in July 2018.
At the commencement of the period relevant to these proceedings, Ms Kaur lived with her brother, Mr Jatinder Singh Gill (Jatinder). The applicant has a particularly close relationship with her brother. Although the applicant is married, she and Jatinder share finances, she has access to his credit cards and he transfers money to her when she requires it. The applicant gave evidence that her husband paid the rent, but that her brother pays for everything else. As will emerge during the course of these reasons Jatinder played a significant role in matters relating to the applicant’s employment, effectively acting as her agent.
At all relevant times the first respondent conducted the business known as “P & G Accounting Solution” or KPG Taxation (KPG). KPG is a national system employer within the meaning of the Fair Work Act 2009 (Cth).
The second respondent, Mr Parampreet Singh Rajput (Mr Rajput), was and remains the managing director of the first respondent. He is the sole director and shareholder of KPG and its various subsidiaries. It is not contested that he had authority on behalf of the first respondent to direct the performance of the applicant’s work, the times and days on which she worked and he controlled the timing and quantum of payments made to the applicant.
KPG has several offices located around Australia. The head office is located in Dandenong. Mr Rajput was based in the Dandenong office. In early 2018, an office in Craigieburn was opened. The manager of the Craigieburn office at the relevant time was Mr Raj Barot and as will be seen in these reasons he too is the subject of a number of serious allegations.
Circumstances of the applicant’s introduction to KPG
The student visa which permitted Ms Kaur to remain in Australia expired in January 2018. Her application for a further student visa was refused in March 2018. She sought a merits review of that refusal by the Migration Review Tribunal (MRT).
Ms Kaur completed her Bachelor of Accounting at Cambridge International College in mid-2018. After she completed her tertiary studies Ms Kaur was able to remain in Australia on a bridging visa while her application for review of the student visa refusal was awaiting hearing by the MRT. Her work rights pursuant to the bridging visa were limited to 40 hours per fortnight.
The applicant explained that after the completion of her studies she actively considered all her options to remain in Australia. She openly admitted that her principal objective at the time was to pursue the path most likely to result in that outcome, whether it be temporary or permanent residence. Her brother was equally eager to assist the applicant to achieve her goal of remaining in Australia. Ms Kaur said that her brother was always looking on the internet about visa rules.
Ms Kaur gave evidence that after discussing her options with her brother she decided that further studies would cost too much money and that waiting for a decision from the MRT was too uncertain. Ms Kaur and her brother decided that she should pursue a Subclass 407 sponsored training visa.
A Subclass 407 visa allows an overseas resident to visit Australia for a period of up to 2 years, during which the visa holder must complete workplace-based training (to improve skills in an area of tertiary study or field of expertise) or a professional development training program. A person seeking such a visa must be nominated or “sponsored” by an Australian employer or organisation with whom they will undertake the training. The proposed sponsor is required to provide the government department with details about the nominee (intended trainee), the purpose or type of training and how and where the training will be provided[34].
[34] Subclass 407 Training visa (homeaffairs.gov.au)
Securing the applicant’s ongoing residence in Australia became (and continued to be) something of a joint endeavour between Ms Kaur and her brother Jatinder. It is clear from the evidence that Ms Kaur’s brother was very active in discussing the options with her and that he too regarded a training visa as the simplest way forward.
The applicant embarked upon a search for work based on her objective of securing a 407 training visa[35]. The applicant’s brother gave evidence that he and other family and friends in their community, including cousins, started to look around for employment opportunities for the applicant. Jatinder said that “the first preference was to get Gagandeep the training visa”[36] and that she was encouraged to apply for various accounting jobs.
[35] Affidavit of Gagandeep Kaur dated 3 June 2022 at [12]-[13]
[36] Affidavit of Jatinder Gill dated 3 June 2022 at [11]
Introduction to KPG
There is general agreement between the parties, confirmed by the evidence, that the applicant was introduced to KPG through the efforts of her brother, Jatinder, who utilised a network of respected members of the Punjabi community to find a sponsored employment opportunity for his sister.
Jatinder approached his own employer, Mr Parjinder Singh Sidhu, who was the manager of a 7/11 franchise store at which Jatinder worked. Jatinder mentioned that his younger sister had or was about to complete her accounting degree. He told Mr Sidhu that his sister was looking for employment and an employer to sponsor her for a visa[37].
[37] Affidavit of Parjinder Singh Sidhu dated 17 April 2023 at [5]
In or around July 2018, Mr Sidhu explained the applicant’s circumstances to a senior member of the community, Mr Praveen Gulati. Mr Gulati happened to be a friend of the second respondent, Mr Rajput, and was the landlord of KPG’s Craigieburn office.
Mr Gulati reached out to Mr Rajput to see if he needed a trainee[38]. Neither the applicant nor her brother had ever met Mr Gulati and I infer that Mr Gulati made his approach to Mr Rajput as a favour to Parjinder Singh Sidhu. Insofar as the applicant later contended that she had received a “reference” from Mr Gulati, I interpret that to mean no more than that she had been referred to Mr Rajput by him. She had no claim to his personal endorsement as they were not known to each other.
[38] Affidavit of Praveen Gulati dated 23 August 2022 at [4]
The first meeting with the respondents
The applicant attended a meeting in the Dandenong office of KPG on or around 24 August 2018. The meeting was attended by the applicant, her brother Jatinder, the second respondent, Mr Rajput, and the office manager for the KPG Dandenong Office, Mr Lakhbir Singh. The respondents accept that a meeting occurred that day but deny that it was a job interview.
The nature and purpose of the 24 August meeting and what exactly transpired there, including whether there was any agreement about future employment, was the subject of contested evidence. Suffice to say, something occurred during or as a consequence of this meeting which resulted in the applicant attending for work at the offices of the first respondent a few days later. I use the neutral expression “work” because the precise nature and legal characterisation of the arrangement between the applicant and the respondents, at least in its early stages, is extremely unclear.
The applicant says that her “interview” with Mr Rajput occurred over 5 to 10 minutes. She says that her brother Jatinder sat in on the interview but did not play any active part in it. The applicant claims that Mr Rajput asked her a number of questions regarding her knowledge of accounting software and her migration status. Ms Kaur says that she was then introduced to the Dandenong office manager, Mr Lakhbir, who took her to a separate office to complete a computer test which was conducted over the next 20 to 25 minutes. In that test she claims to have been asked to perform various accounting exercises such as solving a GST problem and preparing a profit and loss statement.
In her affidavit dated 3 June 2022 the applicant says that Mr Rajput was happy with the results of the test and told her that he needed someone he could trust. Mr Rajput allegedly told Ms Kaur that he could trust her because of her “reference”.
The applicant alleges that Mr Rajput then told her that he would help her to obtain a 407 training visa and that he would also sponsor her for permanent residency. After being told by the applicant that she would have to return to India to apply for the 407 training visa, Ms Kaur claims that Mr Rajput agreed to “pay for everything, including: tickets, migration agent and any fees or charge”. The applicant also says that Mr Rajput offered to pay for her husband’s return ticket to Australia.
The applicant also alleges that the “interview” with Mr Rajput involved a detailed discussion about the nature of the work she would perform at KPG and her proposed pay and working hours. Ms Kaur says that she was told she would be employed as an Assistant Accountant/Tax Consultant and that she would perform general accounting duties, which would include applying for Australian Business Numbers and Tax File Numbers, completing tax returns for clients and speaking with the Australian Tax Office.
The applicant alleges that even though Mr Rajput wanted her to commence full-time work immediately, it was agreed that she would work 2 days one week and 3 days in the alternate week to conform with the limited working rights conditions attached to her bridging visa. The applicant alleges it was agreed that she would work in both the Craigieburn and Dandenong offices, that she would work 40 hours per fortnight and would be paid $21.45 per hour, commencing from Monday, 27 August 2018.
The applicant also deposes to discussions that day between Mr Rajput and her brother regarding obtaining the services of a migration agent who could assist in putting all the paperwork together, with her brother expressing his strong preference to use Mr Manjinder Sekhon, a migration agent who had a history of representing the applicant. Apparently Mr Rajput expressed a preference for another migration agent who worked in his building, but the applicant said that Mr Rajput agreed to her brother’s proposal.
In his affidavit dated 3 June 2022, Jatinder broadly corroborated his sister’s version of events. Jatinder said that Mr Rajput agreed to sponsor his sister for the training visa. He says it was agreed with Mr Rajput that the applicant would work 5 days per fortnight until she obtained her visa and then she would work full-time after that. He added that Mr Rajput also agreed to sponsor his sister for permanent residency after 2 years.
Interestingly, in his affidavit at [31] Jatinder alleges that during this first meeting “Parampreet [Mr Rajput] also said there were rumours he would take money from the students and it is not true, that he is not like that”. No mention of this was made in Ms Kaur’s affidavit and when it was put to Mr Rajput in cross-examination, he denied it.
The applicant says that shortly after the interview with Mr Rajput, her brother was contacted by their preferred migration agent Mr Manjinder Sekhon who confirmed that he had spoken with Mr Rajput about the visa and training position. Jatinder gave evidence that he told Mr Sekhon about the agreement that had been reached about employment and sponsorship for his sister. Mr Sekhon, who was not called to give evidence by either party, is alleged to have said that he would start the 407 visa application process and would liaise with Mr Rajput about the documents which would be required to support it.
The respondents give a very different account of the 24 August 2018 meeting. In fact, Mr Rajput says that the meeting actually came about after an approach he received from Jatinder a week or so earlier. On that earlier occasion Jatinder said that his sister was a new graduate looking for a job and that he came with a reference from Mr Gulati. Mr Rajput says that he then verified the connection with Mr Gulati who confirmed that there was a newly graduated accountant from the Punjabi community who was looking for a first job. Mr Rajput said that he agreed to meet the applicant and to give her a chance because he was on good terms with Mr Gulati.
Other than confirming that Jatinder led the initiative of introducing his sister to Mr Rajput and that Jatinder was seeking employment for her, nothing really turns on whether there was an earlier exchange between the two of them. What is clear is that Ms Kaur and Mr Rajput were not introduced until the meeting of 24 August 2018.
The respondents say that after the applicant was introduced to Mr Rajput at the 24 August meeting, he provided information about the practical course of work experience which was being conducted by KPG[39]. Mr Rajput said he knew the applicant was a fresh graduate with zero experience and therefore he only asked a few basic questions to ascertain how enthusiastic she was about working. He agrees that he asked the office manager, Mr Lakhbir, to take Ms Kaur to a separate room where she was asked some practical questions about her accounting skills, a process which took about 10 or 15 minutes.
[39] Further Amended Defence at [5]
Mr Rajput denies making comments to the applicant including that she was “very intelligent” or that “she could progress and be a manager one day”. He said that he had no reason or basis for making such comments. Mr Rajput also denies telling the applicant’s brother that the applicant knew the software or that her skills had been complimented by the office manager Mr Lakhbir.
When cross-examined, the applicant conceded that at the time of the meeting she had no practical experience in a professional accounting firm. She also conceded that she had not been able to locate any other alternative employment options prior to being introduced to KPG. Her only prior experience of work was limited to some customer service and cleaning.
Nonetheless, Mr Rajput conceded that he was open to hiring a new graduate as he had done before, but only after she had undertaken a period of work experience to demonstrate proficiency in practical skills. Mr Rajput gave evidence that two other current employees, Ms Anu Gagaan and Ms Jasmeet Kaur, had been employed after completing an unpaid training placement.
The respondents deny that any offer of immediate employment was made to the applicant at the 24 August meeting. The respondents deny the applicant’s claim that she would be employed as a Tax Consultant/Assistant Accountant or that it was a term of the offer that KPG would pay relevant sponsorship and migration agent fees[40] and travel expenses to and from India in order for the applicant to file her visa application. The respondents deny that it was agreed that the applicant would be employed for 40 hours work per fortnight until a subclass 407 Visa was issued and then 38 hours per week thereafter.
[40] FASOC at [7.4]
Mr Rajput vehemently denies he made any representation to the applicant or her brother about being paid $21.45 per hour. He says he reiterated to both the applicant and her brother that all he was prepared to offer was an unpaid work experience opportunity, with the possibility of employment to be considered later and after the applicant secured a training visa.
Mr Rajput was adamant that he was not prepared to immediately employ the applicant as she had no practical skills. He said she needed to learn first, a process she could undertake by performing unpaid work experience until the visa application process was complete and she was granted a visa permitting permanent employment. Mr Rajput said that he expected the visa application process would take 3 or 4 months and during that time the applicant would learn skills to ready her for employment.
It appears to have been understood by all parties from the outset that the applicant did not have a visa which entitled her to perform full-time work and that she required sponsorship in order to obtain a 407 visa. It also appears to have been understood that to apply for a 407 visa Ms Kaur would have to engage a migration agent and return to India to make the visa application from abroad.
Nonetheless, Mr Rajput denied that the applicant’s visa situation or sponsorship was discussed at the August 2018 meeting. The respondents deny that Mr Sekhon telephoned Jatinder on the day of the August 2018 meeting or that the brother was informed that there had been a discussion between the migration agent and Mr Rajput about the applicant’s eligibility for a subclass 407 training visa. Mr Rajput says that there was no discussion regarding sponsorship of the applicant for a 407 visa until in or around October 2018, but I do not accept that evidence.
In his affidavit dated 23 August 2022, Mr Rajput recalls a further meeting with the applicant which occurred a few days after the first interview. He says that by the time of this second meeting, he was happy to give the applicant a training placement. Mr Rajput said that he clearly explained to the applicant that he could not hire her immediately but proposed that she would do some part-time work experience for 2 or 3 months to develop practical skills. Mr Rajput is adamant that he told the applicant that it would be an unpaid training opportunity and that once she gained skills and confidence and was able to work independently, she would be considered for sponsored employment. He also claims to have told the applicant that any potential employment would have to be in KPG’s Craigieburn office, as there was not sufficient space or a business need for her in Dandenong.
Suffice to say there are no written records of any of the discussions referred to in the preceding paragraphs. There are no documents which evidence the content of meetings or the agreements to which the parties depose. All communications were oral and informal and, in my assessment, deliberately so.
Work performed by the applicant between August and November 2018
Evidence regarding the work performed by the applicant after she first commenced with KPG in late August 2018 is equally vague and opaque.
The applicant deposes that between August and November 2018, she worked 40 hours per fortnight, alternating between working two or three days per week[41]. She states that throughout this time she was given work by Mr Rajput, Mr Singh and other senior people when working at both the Dandenong and Craigieburn office[42]. She alleged that from her first day of “employment” with the first respondent, her duties included the following[43]:
(1)answering phone calls and providing assistance to clients;
(2)applying to ABNs and TFNs on behalf of clients;
(3)calculating GST for clients;
(4)calls and communications with the ATO; and
(5)preparing profit and loss statement reports and balancing accounts.
[41] Affidavit of Gagandeep Kaur dated 3 June 2022 at [38]
[42] Affidavit of Gagandeep Kaur dated 3 June 2022 at [35]-[36]
[43] Affidavit of Gagandeep Kaur dated 3 June 2022 at [40]
It is agreed that the applicant attended the respondents’ workplace from late August 2018 and that she performed some work at the Dandenong and Craigieburn offices of KPG. However, Mr Rajput deposed that during this “work experience” period Ms Kaur was instructed to observe and learn so she could build up practical knowledge. As a completely fresh and inexperienced graduate, she was required to watch and listen and absorb. Mr Rajput was not required to work on any client files, nor did she have her own desk or computer.
Two of the respondent’s witnesses, Anu Gagaan and Jasmeet Kaur who worked as accountants for KPG, gave evidence that the applicant did not do any “real work” or render any substantive service during this initial period. As a new and inexperienced graduate, they said that she was not capable of performing work as a tax consultant or accountant and did not do so. They gave evidence that the applicant largely observed the work of others although she was afforded opportunities to practice tasks.
Save for the oral assertions of various witnesses, there was no objective evidence of the range of tasks or activities which occupied Ms Kaur during this first period of work. That is to be contrasted with the work performed after the applicant obtained her 407 training visa, which the applicant claimed to have dutifully and accurately recorded in one or more notebooks.
The 407 visa application and KPG’s sponsorship
It was known from the parties’ first meeting that the applicant did not have a working visa which would enable her to perform full-time work and that she required employer sponsorship in order to obtain a 407 visa. It was understood by all that to apply for a sponsored training visa, KPG and Mr Rajput would have to obtain Departmental approval as a nominated sponsor, Ms Kaur would have to engage with a migration agent and then she would have return to India to make the application from abroad.
The respondents admit that between August 2018 and November 2018 the migration agent Mr Sekhon and Mr Rajput liaised regarding the sponsorship application and paperwork, including meeting a request for financial information about the first respondent.
In early September 2018, shortly after Ms Kaur commenced working, KPG agreed to sponsor the applicant’s training visa application[44]. Counsel for the applicant suggested that was because Mr Rajput had by then already formed the view that Ms Kaur was capable and ready to perform accounting work. Mr Rajput denied that and said he simply agreed that he would give Ms Kaur an opportunity and set the wheels in motion for sponsorship which he expected would take at least 4 to 6 months.
[44] Transcript Day 4 P-320
On 12 November 2018 Mr Rajput signed two letters (the 12 November 2018 letters) on company letterhead confirming KPG’s commitment to sponsoring the applicant. In the first document headed “Sponsorship Obligation Declaration” Mr Rajput and the Dandenong office manager declared that Mr Rajput would monitor Ms Kaur’s training and would maintain regular contact and assist her for the duration of the training program. They committed to meeting all sponsorship obligations toward Ms Kaur. In the second document titled “Sub: Training Arrangements” Mr Rajput confirmed that he has been in the accounting industry for the last 10 years as a Principal Accountant and that the applicant’s training would be conducted under his supervision. The letter goes on to say that[45]:
“The nominee will be provided full time 38 hours of training and will be paid at the rate of $21.45 per hour. The training will be conducted at KPG Taxation Dandenong Hub, suite 40 level 1/15-23 Langhorne St, Dandenong VIC 3175.”
[45] CB 61
The 12 November 2018 letters were self-evidently prepared by or at the request of a migration agent to support the applicant’s visa application. The applicant’s nomination was also supported by a document setting out the parameters of the training and employment to be provided (the Training Document)[46]. The Training Document identifies the second respondent Mr Rajput as “Principal Accountant”. The premise of all these documents was that they would apply to training under a visa which was yet to be granted.
[46] CB 75-93
Later in November 2018 the applicant was informed by the migration agent that Mr Rajput had filed the sponsorship documents with the Department of Immigration and Border Protection.
The respondents deny the applicant’s allegation[47] that in or around early November 2018 Mr Rajput told her that he was about to go overseas on a holiday with his family, that KPG could not meet the promise to pay the applicant’s sponsorship expenses and that if she was to pay her own sponsorship expenses Mr Rajput would reimburse her when he returned to Australia
[47] FASOC at [13]
Remuneration for the first period of work
It is the applicant’s case that 24 November 2018 was her last day of work for this First Period[48].
[48] Affidavit of Gagandeep Kaur dated 3 June 2022 at [61]
The applicant did not receive any wages for work performed between 27 August 2018 and 24 November 2018[49]. She contends that she was entitled to be paid for that period.
[49] Affidavit of Gagandeep Kaur dated 3 June 2022 at [43]
Ms Kaur pleads that the terms and conditions of her employment contract were partly oral and partly evidenced in writing. Insofar as they were oral, Ms Kaur relies on her claim to having been told at the original interview in August 2018 that she would work 40 hours per fortnight and would be paid $21.45 per hour. Insofar as they were evidenced in writing, the applicant says that the relevant terms of her employment are those set out in the 12 November 2018 Letters[50].
[50] FASOC at [22]–[23]
In her affidavit, the applicant deposes that on three separate occasions she asked Mr Rajput why she had not been paid - in early October 2018, late October 2018 and on 12 November 2018[51]. Mr Rajput rejects these allegations and says that at no stage did Ms Kaur approach him about pay or ask why she was not getting wages. He says that there was never any expectation Ms Kaur would be paid and he did not ask for her bank details until February 2019[52].
[51] Affidavit of Gagandeep Kaur dated 3 June 2022 at [43]-[51]
[52] Affidavit of Parampreet Singh Rajput dated 23 August 2022 at [24]
The applicant also alleges that she was required to complete an application for a Tax File Number (TFN) during this first period of work. The respondents deny this and allege that she did not sign a TFN application until after she commenced full-time work for KPG in February the following year.
The respondents admit that the applicant was not paid any remuneration for any “work” she performed during that period 27 August 2018 to 24 November 2018. They say there was no employment agreement and the applicant was not entitled to any remuneration. The respondents assert that the common understanding of the parties was for the applicant to develop some baseline skills by participating in unpaid work experience pending the grant of a training visa.
Return to India and visa grant
On 29 November 2018 the applicant returned to India for the purpose of finalising and filing her application for a sponsored training visa. It is common ground that this was an application she could only make from abroad.
On 6 December 2018, through the migration agent Mr Sekhon, she applied for a subclass 407 training visa.
Ms Kaur’s brother Jatinder gave evidence that on 10 December 2018 he went to the office of the migration agent Mr Sekhon and gave him $5,750 in cash to cover the business sponsorship fee ($420), the nomination fee ($330), the migration agent fee ($3,000) and the training plan fee ($2,000)[53].
[53] Affidavit of Jatinder Singh Gill dated 3 June 2022 at [47]; Annexure JSG2
A subclass 407 training visa was issued by the Department of Immigration on 25 January 2019. On 26 January 2019 the applicant returned to Australia with her husband and gained immigration clearance on the basis of the visa.
Second work period
The applicant returned to work at KPG on 4 February 2019. The applicant maintains that she simply resumed the employment which had commenced back in August 2018.
Employment documents
The respondents accept that Ms Kaur was employed with KPG from 4 February 2019 but maintain their denial that she was employed at any time before that date. The respondents admit that the 12 November 2018 letters confirm the contractual terms of her employment, but submit that those terms were not engaged until after the grant of the 407 training visa.
On 9 February 2019, the applicant was presented with a written contract of employment and was asked to sign it[54]. She gave evidence that everyone in the office received a new contract.
[54] Affidavit of Gagandeep Kaur dated 3 June 2022 at [77]
The applicant gave evidence that she did not want to sign the document because it did not specify a rate of pay and because the document contained a restraint of trade clause. Her brother Jatinder gave evidence that he advised the applicant not to sign the contract. Ms Kaur said in the following two weeks she was asked “on a few occasions” by Mr Rajput to sign the contract and at least once by Mr Barot. She said she refused each time.
On 17 February 2019 the applicant discovered she was pregnant[55], a fact she says she disclosed to Mr Barot and Mr Rajput the following day. The applicant’s brother also claims to have told Mr Rajput of his sister’s pregnancy in a phone call on 20 February 2019. There is no clear evidence regarding these alleged communications.
[55] Affidavit of Gagandeep Kaur dated 3 June 2022 at [83]
The parties agree that the written contract of employment dated 9 February 2019 was signed by the applicant and Mr Rajput on 20 February 2019[56]. The applicant accepts that she signed the agreement[57] but says she did so under the threat that Mr Rajput would cancel the sponsorship arrangements if she did not sign. She alleges that Mr Rajput knew by then that she was pregnant, told her it would be very hard for her to find another job and that he would cancel the training visa if she did not sign[58].
[56] Further Amended Defence at [22]
[57] Affidavit of Gagandeep Kaur dated 3 June 2022 at [89]
[58] Affidavit of Gagandeep Kaur dated 3 June 2022 at [86]
Mr Rajput says he had no recollection of when he found out Ms Kaur was pregnant. In an unfair dismissal application Ms Kaur commenced in May 2020, she claimed that she learnt of her pregnancy in March 2019[59] and that she informed Mr Barot then. In a separate document she said she became aware in “February last week”[60]. In my view it is most probable that the employment contract and the tax file number documents were signed when Ms Kaur learned that she was pregnant but before this fact was disclosed to the respondents.
[59] CB 1008
[60] CB 1012
The applicant gave evidence that after she signed the employment contract on 20 February 2019, the KPG receptionist emailed her a copy with the restraint clauses missing. She alleges that she asked Mr Rajput why there were missing and that he responded “it is illegal to put in the contract so I have taken it out of your copies. But people know they have signed those parts and we can enforce them if we need to.”[61]
[61] CB 51
The respondents deny this allegation and say that it would be entirely incoherent and nonsensical for Mr Rajput to admit that he has done something illegal and then in the same breath to say that he will enforce it. In any event, the applicant’s copy of the contract[62] shows that every second page is missing and the respondents submit that a far more plausible explanation for the missing clauses is that there was a mistake in scanning the double sided document.
[62] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK10
During cross-examination the applicant was shown a signed application for a Tax File Number[63] dated 21 February 2019. She agreed that she signed this document but believes that it was post-dated. The applicant believes that she filled out and signed the TFN application in 2018 during the initial working period, a fact she says is consistent with her being an employee in that earlier period. She said that the date on the document has been falsified because it is written in a script which does not match her handwriting - in particular the numeral “2” in the date does not match the way she ordinarily writes that numeral.
[63] CB 1022
There do appear to be differences between the way the applicant writes the numeral “2” and the way it appears on the TFN form. I accept that the document may have been dated by someone else notwithstanding it was completed and signed by the applicant. The most plausible explanation is that the applicant either forgot to date the document or it was not dated until she agreed to execute the contract of employment after having refused to do so for two weeks. I do not accept that the document was completed and signed before February 2019 or, if it was, it was for the purpose of her employment after the visa had been obtained.
Work performed
It is not contested that the applicant primarily worked at the first respondent’s Craigieburn office and that she would occasionally work at the Dandenong office. This arrangement was consistent with the working arrangement foreshadowed by Mr Rajput when the parties first met in August 2018, although it is not altogether consistent with the representation to the Department that training would be conducted at Dandenong.
In her statement of claim and affidavits, the applicant claims that she worked:
·on weekdays between the hours of 9.00am and 5.00pm; and
·outside of those hours, for approximately 5-10 hours per week being approximately a total of 1 to 2 hours per day on weekdays.
The applicant alleges that during those hours she performed work including answering calls from clients and providing advice and other assistance, applying for ABNs and TFNs for new clients and companies, calculating GST payments, communicating with the ATO, preparing profit and loss statements, answering calls from banks and other ad hoc duties including reception.
The applicant claims that based on that range of duties the Banking, Finance and Insurance Award 2020 (the Award) applied during the entire period of her employment with the first respondent. Ms Kaur alleges that she was entitled to be classified as and paid the minimum rates applicable to a Level 4 Employee within the meaning of the Award ($24.44 per hour) or, alternatively, at a lower level under that award or at the national minimum wage.
The respondents admit that the applicant’s employment was subject to the Award, but only for the period during which the applicant was employed i.e. from 4 February 2019. Moreover, they say the applicant was only entitled to be paid the minimum rates applicable to a Level 1 Employee within the meaning of the Award.
Evidence about the applicant’s attendance at work and actual hours of work was very unclear, not assisted by the fact that the respondents did not produce detailed time records. The applicant’s evidence was at a high level of generality.
The respondents admit that during the course of her employment the applicant attended to calls from clients and performed work ancillary to that task. However, they deny her allegation that she also liaised with the Australian Taxation Office, managed and maintained service standards, oversaw day-to-day operations of functional areas of responsibility, implemented and maintained effective controls and prepared reports.
The applicant described her working day as starting when she was picked up at Dandenong station by the Craigieburn manager Mr Barot for the drive to the Craigieburn office in the company van. She said they had an arrangement whereby he would normally pick her up just prior to 9.00am. Ms Kaur gave evidence that the drive would usually take between an hour and two hours depending on traffic.
Ms Kaur said it was her understanding that her working day commenced from the time she was picked up at the station. She said that therefore when she continued working until 7.00pm or 7.30pm in the evening at Craigieburn, the additional time beyond 5.00pm should be regarded as overtime.
The applicant said that when she worked at Dandenong her start time was normally sometime between 9.00am and 9.30am. She did concede that on occasion, albeit rarely, she commenced later between 10.00am and 10.30am.
To corroborate her working-hours claim, the applicant said that she made a note of her start times and finish times and a record of the work she performed each day in notebooks. She said that everything she did for KPG from 20 February 2019 was recorded in the books.
As an aside there was no suggestion that the applicant kept any such record for the work she claimed to have performed during the first period between August and November 2018.
The respondents admit that subject to normal leave entitlements and public holidays, the applicant was required to perform work on weekdays between the hours of approximately 9.00am and 5.00pm. However, they deny that she was ever required to work outside of those hours during the week. The respondents also deny the applicant’s allegation that she was instructed by Mr Rajput to work overtime hours or that he refused her request to leave work at the conclusion of ordinary hours. The respondents also contest the applicant’s claim that she attended work every day – alleging that her attendance was in fact poor, inconsistent and a reason for performance management.
During cross-examination the applicant was taken to various pages of a notebook which she retained after the end of her employment (which was tendered in evidence) and to various text messages[64] with the Craigieburn manager who was responsible for driving her to the office each day. It was put to the applicant, by reference to gaps in the notebook, that she did not work on certain days because there were no entries to show that she had. Specifically, it was put to the applicant that gaps in the notebooks suggested that she had failed to attend work on 5 Fridays in a row between 8 March and 5 April 2019.
[64] CB 878 - 885
As to variations in her starting times and the suggestion that she was not always available for work, the applicant said that she did not always use text messaging to communicate with the Craigieburn manager regarding pickup times at Dandenong Station. Ms Kaur said that she also communicated with Mr Barot by WhatsApp messaging and phone calls and suggested that might explain some of the anomalies and gaps in the evidence.
The applicant said that the notebook she retained after the end of her employment (from which her evidence was extracted) was not a complete record of all the work that she performed at KPG. She said that there were actually four notebooks in which she recorded her work, two held at Craigieburn and two at Dandenong[65]. She endeavoured to explain some of the holes in her evidence about attendance and absences by saying that some of her work had been recorded in the other notebooks and that she had been denied access to them.
[65] Transcript Day 2 P-151
In her final address, counsel for the respondents submitted that the applicant’s evidence about there being multiple notebooks had been concocted in the witness box when she realised that the notebook entries were problematic for her. The respondents argue that it is implausible that the applicant made entries in 4 notebooks because the extract she produced from one notebook contained entries from both offices for all but 6 days of the almost 7 weeks it covers. The respondents pointed out that the notebook extracts produced to the Court showed a series of entries from 20 February 2019 to 9 April 2019 and that they recorded work performed at both the Craigieburn and Dandenong offices. The respondents submitted that the better explanation is that the applicant had a single notebook which she transported between the offices and that the Court should infer that she did not come to work on the days for which there were no entries.
The respondents’ case is that the notebook entries evidence the type of work Ms Kaur performed, which was predominantly administrative and basic, such as arranging meetings and doing rudimentary work, consistent with the work covered by Level 1 of the Award.
The respondents also argue that there is no objective evidence of Mr Rajput or any other manager directing the applicant to perform work outside the ordinary 38 hours required by her contract. The respondents submit that where gaps appear in the notebook kept by the applicant, the Court should infer that she did not attend for work on those days and was not entitled to be paid unless there is evidence that her leave was approved.
The alleged kickback arrangement
It is common ground that the applicant commenced the second period of work on 4 February 2019. However, by 21 February 2019, the day after she signed the employment contract, the applicant had not been paid for any work.
On that day, the applicant says that she sent her bank account details to Mr Rajput, in aid of her request to be paid for work performed to that date. The applicant alleged that Mr Rajput refused to pay, in response to which the applicant said that she wanted to resign. She alleges that Mr Rajput responded by threatening the applicant with unspecified legal action[66].
[66] Affidavit of Gagandeep Kaur dated 3 June 2022 at [90] – [95]
The applicant claims that Mr Rajput then explained the basis on which he would be prepared to pay her, namely that she would first have to pay him, in cash, money on account of the cost of her employment, and, if she did not do so, he would cancel her sponsorship[67].
[67] Affidavit of Gagandeep Kaur dated 3 June 2022 at [96]; [67] – [73]
In his opening address, counsel for the applicant described this as “the kickback arrangement” and it was referred to as such during the trial. In substance, it is alleged that Mr Rajput asked for a regular upfront payment in cash for what he had calculated it would cost KPG to employ the applicant, which included her wages, superannuation, taxes and other costs to the business. The applicant says that Mr Rajput then paid her a lesser amount so that the cost of her employment came at no cost to him. The applicant says that the respondent profited from the arrangement because he obtained her labour at no net cost to him or KPG.
It was this kickback arrangement which the applicant’s counsel said evidenced a “system” or “business model” or “modus operandi” which underpins the allegation that the respondents had engaged in “serious contraventions” of the Fair Work Act (s 557A). As I will come to, the applicant sought to expose this business model by relying on tendency evidence from three former employees of KPG who claim to have participated in a similar arrangement during their employment.
The applicant alleges that she did not agree to the arrangement proposed by Mr Rajput. She alleges that on another day in late February or early March 2019 Mr Rajput asked her to arrange for her brother to meet with him for the purposes of discussing the kickback.
The applicant alleges that her brother subsequently met with Mr Rajput at the KPG Dandenong office, where Mr Rajput told Jatinder that the applicant was required to pay her own wages, taxation and superannuation. The applicant alleges that Mr Rajput requested that cash payments be made to satisfy the demand and that Mr Rajput said words to the effect that if the payments were not made the sponsorship could not continue.
In his affidavit of 3 June 2022, Jatinder deposes to a meeting with Mr Rajput where he was told that Ms Kaur would not be paid any wages. Jatinder alleges that Mr Rajput explained to him that for each two weeks the applicant’s salary would be $1,426 plus superannuation and tax. Jatinder alleges that Mr Rajput said to him, words to the effect[68]“you will need to arrange for cash to pay her salary” and “pay me $1,700 for fortnight, after 6 months we will check and see if you owe me any money”.
[68] Affidavit of Jatinder Singh Gill dated 3 June 2022 at [66]-[68]
Jatinder alleges that Mr Rajput said he would only pay Ms Kaur after he had received money. Mr Rajput is also alleged to have told Jatinder that he would face serious consequences if he told anyone about the deal, that his sister didn’t have any option because she was pregnant, that it would be difficult for a pregnant lady to get a job and that he would cancel the applicant’s visa if he was not paid.
The applicant says that she and her brother complied with the kickback demand for 4 fortnightly pay cycles, but only because she felt under duress, was scared and overwhelmed by the fear of losing her Australian visa.
The applicant alleges that there were four “kickback” transactions, each of $1,700, the first of which was on 11 March 2019[69].
[69] Applicant’s Closing Submissions at [26]
This allegation does not align with her brother’s evidence, who claims that a first cash payment of $2,600 was hand delivered to Mr Rajput on 11 March 2019. Jatinder said that money for the first instalment of the applicant’s wages was collected by borrowing from friends. Jatinder says he attended the Dandenong office on 11 March 2019 and handed the money to Mr Rajput who “put the money in a black bag on his side with other money in the bag that I could see”.
On 13 March 2019 the applicant was paid, via bank transfer from the first respondent, the amounts of $1,426 and $794 representing wages for the pay period from 4 February to 24 February 2019. These transfers are evidenced in a screenshot of a bank statement extract annexed to the applicant’s affidavit[70] and a payroll advice annexed to the Mr Rajput’s affidavit[71].
[70] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK20
[71] Affidavit of Parampreet Singh Rajput dated 23 August 2022 Annexure PSR-7
The applicant alleges that on 21 March 2019 she withdrew $1,700 cash from her bank account and gave the money to Mr Rajput in cash at the Dandenong office. This allegation is supported by a screenshot of a bank statement which shows a withdrawal of $1,700 from an ATM[72]. The following day, 22 March 2019, the applicant received a payment by bank transfer of $1,426 from the second respondent for the pay period 25 February to 10 March 2019[73].
[72] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK19
[73] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK20; Affidavit of Parampreet Singh Rajput dated 23 August 2022 Annexure PSR-7
Ms Kaur alleges that $1,700 was again withdrawn and provided to Mr Rajput on each of 9 and 29 April 2019. Again, screenshots of extracts from bank statements (of Ms Kaur and Jatinder) were produced to evidence these withdrawals. Ms Kaur received payment by bank transfer in the amount of $1,426 on each of 10 April and 30 April[74].
[74] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK20; Affidavit of Parampreet Singh Rajput dated 23 August 2022 Annexure PSR-7
The timing and quantum of the alleged transactions and supporting evidence are set out in the table below:
Date Cash allegedly paid to respondent Contemporaneous evidence Payment by respondent Contemporaneous evidence 11 March 2019 $2,600 (No – Jatinder says this money was borrowed from friends[75]) 13 March 2019 $1,426 Yes – applicant’s bank statement and respondent’s payroll advice $794 Yes – applicant’s bank statement and respondent’s payroll advice 21 March 2019 $1,700 Yes – applicant’s evidence of ATM withdrawal 22 March 2019 $1,426 Yes – applicant’s bank statement and respondent’s payroll advice 9 April 2019 $1,700 Yes – Jatinder’s evidence of ATM withdrawal[76] 10 April 2019 $1,426 Yes – applicant’s bank statement and respondent’s payroll advice 29 April 2019 $1,700 Yes – applicant’s evidence of ATM withdrawal 30 April 2019 $1,426 Yes – applicant’s bank statement and respondent’s payroll advice [75] Affidavit of Jatinder Singh Gill dated 3 June 2022 at [75]
[76] Affidavit of Jatinder Singh Gill dated 3 June 2022 Annexure JSG5
The respondents deny all these allegations and dismiss them as part of the applicant’s fabricated narrative.
When this evidence was put to Mr Rajput he said he had “no idea” about any cash payments of $1,700[77]. Mr Rajput denied that he demanded kickbacks or received them as alleged by the applicant. The respondents submit that there is no proof of such payments having been made and argue that no nefarious purpose should be inferred from the applicant’s bank statements because the withdrawals of cash could have been for the applicant’s or her brother’s own purposes.
[77] Transcript Day 5 P-423
Tendency evidence
The applicant’s case is that the alleged kickback arrangement was part of a pattern of conduct which was systematic and deliberate and designed to appear compliant with visa conditions and Australian workplace, taxation and superannuation laws. The applicant argues that KPG and Mr Rajput engaged in the very type of conduct which was expressly criminalised by the Migration Amended (Charging for a Migration Outcome) Act 2015 (Cth) which introduced amendments to Subdiv D of Div 12 of Pt 2 of the Migration Act1958 (Cth) (especially, s 245AR[78]).
[78] Pursuant to s 245AR of the Migration Act 1958 it is an offence for a person to ask for or receive a benefit from another person in return for the occurrence of a sponsorship-related event.
At trial the applicant called three witnesses, Ms Simmy Bhatia, Ms Ziniya Singh and Ms Navdeep Kaur, to give evidence regarding their own alleged “kickback” arrangements while they worked for KPG. The applicant contends that the experience of these other former employees is probative and lends weight to the plausibility of her own evidence. The applicant submits that the evidence of these three witnesses revealed a tendency on the part of Mr Rajput to have engaged in kickback demands.
Ms Bhatia said that her husband and Mr Rajput agreed that she would work for KPG, and pay Mr Rajput the cost of her wages. She claims that for about 8 months in 2017, she gave Mr Rajput $1,000 per week or $2,000 in cash to cover her wages, and that her wages were only transferred to her after providing the cash payment. Ms Bhatia annexed a bank statement, which shows payments from KPG going into her account, but it otherwise provided scant support to her claim that she withdrew cash just prior to being paid.
Ms Ziniya Singh, who deposed that she worked for KPG between 2012 and 2013, said that she gave Mr Rajput $1,250-1,300 per fortnight, and was paid $662 plus super in return. Ms Singh said that the payment is evidenced by payslips, annexed to her affidavit. Ms Singh said she agreed to the arrangement prior to commencing work for KPG.
Ms Navdeep Kaur gave evidence that she worked for KPG between late 2017 and early 2018, when she was subsequently fired, and was never paid at all for her work. The respondents say that Ms Navdeep Kaur never worked for KPG and fabricated the story about not getting paid.
The applicants say that the evidence of Ms Bhatia, Ms Singh and Ms Kaur proves the tendency of Mr Rajput’s engagement in a “kickback” scheme in the past and suggests he is likely to do it again.
The respondents contest this evidence and contend that it should not be accepted. The respondents submit that even if this evidence, or some of it, is accepted by the Court as true, it bears little resemblance to the circumstances described by the applicant and does not disclose any tendency to act with a peculiar or esoteric modus operandi. Furthermore, the respondents submit that there are particular issues with the so-called tendency evidence which makes it inherently unreliable and lacking in veracity, not the least being question mark over whether Ms Navdeep Kaur ever worked for KPG .
The respondents say that even if the Court were to find that Mr Rajput had been less than truthful in other contexts, it does not mean that he is lying about the relevant issues in this proceeding, or that the applicant should be believed.
The alleged $50,000 demand
The applicant alleges that between 1 April 2019 and 9 April 2019 the senior manager of the Craigieburn office, Mr Raj Barot, told her that she needed to pay Mr Rajput $50,000 and that if she failed to do so, Mr Rajput would terminate her employment and cancel her sponsorship. The applicant alleges that Mr Barot made this demand on approximately 5 or 6 occasions while he drove the applicant from Dandenong to KPG’s Craigieburn office.
When cross-examined, the applicant reiterated that the Craigieburn manager had told her on 1 April 2019 in the van, and subsequently, on 2 April and one or two other occasions[79], that she should pay $50,000 to KPG and no longer attend work. Mr Barot is alleged to have told the applicant that if she did not pay $50,000 for her sponsorship, she would not be able to stay with the company. Mr Barot allegedly told the applicant that everybody paid Mr Rajput for their sponsorship and that he had paid $65,000 for his own.
[79] CB 52-53
The respondents do not admit these allegations. They plead, however, that if (which is not admitted) Mr Barot engaged in any of the conduct alleged, his conduct was not engaged in on behalf of the first respondent, was not within the scope of Mr Barot’s actual or apparent authority and pursuant to s 793 of the FW Act was not engaged in by the first respondent.
The applicant alleges that Mr Rajput himself demanded $50,000 from her sometime in the first week of April 2019. She alleges that following her conversations with Mr Barot, she approached Mr Rajput at the Craigieburn office and complained to him about the demands for money. She says that Mr Rajput confirmed to her that she was required to make the payment and that when she said she would not do so, he again threatened to cancel the sponsorship. Ms Kaur alleges that Mr Rajput then requested to meet with her brother to discuss the demand.
As mentioned previously, the applicant alleges that on 9 April 2019 her brother withdrew $1,700 cash from his bank account (an amount representing approximately 2 weeks’ gross salary for the applicant) as part of the “kickback” arrangement. She alleges that her brother then met with Mr Rajput at the Dandenong office and gave him the $1,700 on her behalf. The applicant alleges that during that meeting Mr Rajput informed her brother that if the $50,000 was not paid he would not continue his sponsorship of the applicant. The applicant says that Jatinder informed Mr Rajput that the applicant would not pay $50,000. She alleges that this then resulted in the respondent giving her an employment warning letter on or about the same day (as discussed below).
Ms Kaur was not present at the meeting on 9 April 2019 but Jatinder broadly corroborates her hearsay allegations. He said that on 9 April 2019 he was alone with Mr Rajput in his office making a $1,700 payment on account of his sister’s wages. Jatinder alleges that Mr Rajput asked him to pay $50,000 in return for which he would help the applicant get her permanent residency after two years[80]. Jatinder said that he refused and told Mr Rajput that he did not have the money. He alleges that Mr Rajput then suggested payment in two instalments of $25,000 over 6 months. In that exchange, Mr Rajput is alleged to have said “Gagandeep can stay home, you just come and pay, it will be good for her and her baby”. He is also alleged to have said:
“[…] because Gagan has refused to pay, I have already made a warning letter the day before. If you do not agree, I will send the warning letter and cancel the sponsorship.”[81]
[80] Affidavit of Gagandeep Kaur dated 3 June 2022 at [85]
[81] Affidavit of Gagandeep Kaur dated 3 June 2022 at [88]
Jatinder gave evidence that this was a heated conversation, that he got angry and told Mr Rajput that he was not doing the right thing. Jatinder says he threatened to go to the Court or the Immigration Department, but that did not faze Mr Rajput who said, among other things “[…] I keep the courts in my pocket […]”.
The applicant alleges that in the first week of May 2019, Mr Barot again demanded that the applicant pay $50,000. On this occasion, Mr Barot allegedly told the applicant that if she paid the money “it will all be over”. The applicant alleges that Mr Barot yelled at her and threatened that if she did not pay the money she would not be allowed to remain in the office. He is also alleged to have threatened to make a “written complaint” if she did not pay the money.
All of these allegations are denied by the respondents. The respondents do not proffer an alternative version of events or allege any misunderstanding. The respondents say that the applicant and her brother are liars, have fabricated this evidence, that it is completely false and that is intended to malign them.
Cross-examination on the issue of the $50,000 demand was revealing. The applicant denied that the first occasion on which she directly alleged that the respondent had asked her for $50,000 was in the proceedings in this Court. Ms Kaur said that she had made the allegation in an email to Mr Rajput in May 2019[82] (see below), but conceded that the allegation had not been repeated in a subsequent unfair dismissal application to the Fair Work Commission made on 23 May 2020.
[82] CB 147
In cross-examination the applicant’s brother, Jatinder, was also challenged about the veracity of the $50,000 demand claim. The respondents put to him that the allegation was a recent invention which was only raised for the first time by Jatinder in a defence to an intervention order proceeding against him in July 2021. In their written closing submissions, the respondents pointed to 6 separate prior occasions where Jatinder would have been expected to have raised the $50,000 demand if it had been true and to his evidence that on each occasion he “forgot” to do so[83]. The respondents say the applicant and her brother are simply not to be believed.
[83] Respondents’ Outline of Final Submissions [39]-[45]
The Warning Letter
It will be recalled that 9 April 2019 was the day Jatinder claims to have attended the KPG Dandenong office to hand over $1,700 to Mr Rajput as part of the kickback arrangement. It is the same day and presumably the same meeting in which Jatinder claims to have engaged in a heated discussion with Mr Rajput after refusing his alleged demand for $50,000.
On that same day, the applicant claims to have received a warning letter dated 8 April 2019[84] (the Warning Letter) from the General Manager of KPG, Ms Palakpreet Kaur. In its terms, the Warning Letter stated:
[84] Affidavit of Sanjana Chopra dated 19 August 2022 Annexure SC-1; CB 319
Dear Gagandeep,
Warning Letter
I am writing to you about your performance during your employment with KPG Taxation Pty Ltd.
In the month of March 2019, you met with Palakpreet Kaur, Manager KPG Taxation PTY LTD. At this meeting you were advised that your performance has been unsatisfactory, you called in sick and failed to provide medical certificate and personal issues taking priority over work. You were advised that you are not completing your given tasks regularly and when asked to do some accounting work you say you don’t know how to do it.
In the meeting you are asked if you had anything you wish to say or to respond to the situation and you said that
•You had a minor fever and did not wish to see a doctor and took medication on your own. Hence, you couldn’t provide a medical certificate.
•Your sister-in-law is pregnant and unwell so you might have to leave anytime for help. Hence, you need to transfer to Dandenong or Pakenham.
After considering the situation it is expected that your performance improves and specifically that you improve your attitude towards work in a weeks’ time. We keep in consideration personal issues up to an extent, but we cannot make this an ongoing excuse. We will be closely reviewing your performance and decision will be taken after careful consideration.
This is your last warning letter. Your employment may be terminated if your performance does not improve by end of next week. I propose that we meet again on 23/04/2019 to review your progress. Please let me know if this time is convenient to you. If you wish to respond to this formal warning letter, please do so by contacting me on [redacted] or by replying in writing.
Yours sincerely,
Palakpreet Kaur
General Manager
The letter came to the applicant under cover of an email from the administration manager, Sanjana Chopra at 5.54pm on the evening of 9 April 2019., consistent with the applicant’s claim that she first saw it after she returned home from work. The covering email requested that the applicant see Ms Chopra and the office manager Palakpreet Kaur the following morning.
The applicant gave evidence that after receiving the warning letter she thought there was a real risk that KPG was going to terminate her employment and withdraw its sponsorship. The applicant believed that the warning letter would be used as “cover” to dismiss her for her refusal to pay $50,000 and that it had been prepared as an “appropriate looking” document to justify her dismissal should she challenge it.
The warning letter referred to a meeting between the applicant and Ms Palakpreet Kaur, the manager of KPG Taxation, which had taken place in March 2019.
The applicant steadfastly maintains that there was no such meeting or communication regarding her performance prior to the warning letter. When the earlier meeting was put to Ms Kaur in cross-examination she confidently denied it had ever happened. She said that she had never been notified of any complaints or concerns about her performance before the warning letter. The applicant said she was shocked to receive the letter because just a few days earlier she had been informed that she was performing well.
However, as the cross-examination unfolded further, the applicant did concede that the Dandenong office manager had previously commented about her appearance in casual conversation (i.e. she was looking tired) and that “maybe” there had been other informal discussions, including comments that she should dress more formally and that she should present herself more professionally.
Ms Palakreet Kaur, the Dandenong office manager, gave evidence that she had been responsible for the performance management of all employee accountants. She gave evidence that after the applicant was employed as an accountant in February 2019, she became concerned that activity reports did not show her to be doing much work. She said that Mr Barot, the Craigieburn manager, had confirmed to her that the applicant was not doing a lot of work, that she was reluctant to take on tasks and that she sometimes left the office early or just didn’t turn up.
Ms Sanjana Chopra gave evidence to similar effect. She said that she received regular complaints about the applicant’s performance, in particular from the Craigieburn manager, Mr Barot. Those complaints included that Ms Kaur had not turned up for work, had taken sick leave without providing a certificate, had left work without telling anyone, and not completed tasks she had been asked to do or made numerous basic mistakes.
Both Palakpreet Kaur and Sanjana Chopra gave evidence that they met with the applicant at the Dandenong office on 2 or 3 occasions between February and April 2019. Ms Palakpreet Kaur deposed that the applicant reported feeling uncomfortable doing work on client files. The applicant also refused to do administration work saying that it was not her duty to answer phones or scan documents. Ms Palakpreet Kaur also gave evidence that prior to the Warning Letter being issued, the applicant was verbally advised that her performance had been unsatisfactory, that she needed to improve her productivity, that she needed to manage her personal life outside of work and she could not leave work without telling anyone if she felt unwell[85].
[85] Affidavits of Palakpreet Kaur dated 19 August 2022 and 26 June 2023
The respondents also say that in March 2019 the applicant was informed that she was not completing her given tasks regularly and that when asked to do some accounting work she explained that she did not know how to do it. The respondents say that this evidence should be accepted because the responses the applicant gave to the issues raised in the March meeting are recorded in the warning letter of 8 April 2019.
On 10 April 2029, the day after receiving the warning letter, the applicant sent a lengthy email which replied to the allegations about her work performance[86].
[86] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK18
In relation to the alleged shortcomings in her work performance, the applicant responded to the warning letter by referring to and attaching four pdf files of photographs taken of a notebook which set out the work she performed.
She said that the notebook recorded almost all of her duties:
“[…] like picking client calls, making appointments, confirmig [sic] with them, Calling ATO regarding clients to activate/generate the GST, GST of clients, creating the companies, tax return drafts, applying new ABN, adding clients in handi tax and ATO portal, notice of assessment, payment options, activity statement to the client, getting forget ABN, discontinue the bas statementof [sic] quarters and any other work given my colleges [sic] to me to do for them.”
At trial, the applicant gave evidence that she was required to keep notebooks by the respondent. The applicant conceded that the photographs attached to her response to the warning letter were taken from a single notebook which she represented included the work performed by her from 20 February 2019 until 9 April 2019. However, she subsequently said she had used four notebooks, one which recorded receptionist work and one which recorded accounting work at each of the Dandenong and Craigieburn offices.
Ms Kaur agreed that she was required to keep any work-related notebooks at work, but she admitted to having one of them in her possession on the evening she responded to the warning letter. Her evidence about why she had a notebook in her possession on that evening was not convincing. During re-examination, she said that she randomly taken the notebook home. She said she just put it in her bag. Her evidence on this point was not at all persuasive and I consider it more likely that she had the notebook in her possession knowing that her performance was being questioned and that she might have to rely on it at some stage to counter any claims against her.
The applicant’s email response to the Warning Letter also dealt with the complaints about her taking medical leave and other issues. She gave an explanation about her health and claimed that she had only taken 2 days sick leave being 25 and 26 March 2019. The applicant also explained that her expressed preference for working at Dandenong or Pakenham was because she wanted to be closer to family including her sister-in-law who had pregnancy-related medical issues of her own. The applicant ended her response to the Warning Letter as follows:
“as an employee of KPG I will try my more best in future that i can satisfied my team. i will take this warning letter in a positive way and will work more on myself but please also have a look on my reply and attachments sended by me.
i am always looking forward to learn more with the great KPG team and will try to give my best efforts which will help to grow the KPG team and more probably learning myself new skills and teamwork.
i am always available to have talk on my progress and will try my best.”
In her affidavit, the applicant deposed that she sought to challenge Ms Palakpreet Kaur about the warning letter in a meeting in the Dandenong office the next day. The applicant said on that occasion Palakpreet informed her that “you not looking active or wearing make up” and that “you’re going to the washroom too much and drinking too much water. You’re not doing a good job”.
Under cross-examination the applicant reiterated that the warning letter had come as a complete shock to her and described how she demanded an explanation from Palakpreet Kaur for why it had been sent[87]:
“[…] Even I ask her, “What’s the reason?”. I ask her, “Can you give me the solid reason why you giving me the warning letter?” She said - she comment on my dress, she said, “You’re going to the washroom, you’re drinking too much water,” because I was pregnant at the time and I think it’s obvious, you go to the washroom, you need to drink more water, it’s obvious. So, I think it’s not - it’s a very silly excuse I thought at the time, it’s a very silly excuse, I even tell Palak maam that “Ma’am, you’re giving me silly excuse.” It’s never mentioned. You’re giving me really feedback from just before that you’re doing very good and now you’re giving – now - now I got the warning letter.”
[87] Transcript Day 1 P-34
The applicant was cross-examined about why her written response to the performance letter did not include any reference to the alleged demand that she pay $50,000 nor to the kickback arrangement where she was required to pay money to cover her own wages. It was also put to the applicant that she made no comment in her response about the warning letter coming as a complete shock or that the performance issues had no proper basis. Nor did the applicant decry the reference to the March 2019 performance meeting as a fabrication. The applicant conceded that her response had not raised these matters because she wanted to respond to the warning letter “in a professional way”. The applicant said she wanted to show her commitment to the company, work a more positive way and demonstrate that she was prepared to address the skill issues which had been raised. Her counsel argued in final submissions that the politeness or professionalism of that response is not inconsistent with an employee who felt under threat of imminent dismissal.
After the warning letter and the discussion at the Dandenong office, the applicant was absent from work for most of the next 3 weeks without explanation. Ms Chopra gave evidence that she called the applicant several times and sent her messages, but received no response.
Ms Chopra gave evidence that the applicant returned to work on 29 April 2019. On that day she and the applicant spoke about the absence but Ms Chopra does not have a clear recall of what was said. Ms Chopra only recalls that the applicant did not provide a medical certificate for her absence and that she asked for a further one or two weeks sick leave. Suffice to say there are no notes of this conversation.
Ms Chopra also deposes that in or around that time she, the general manager Palakpreet Kaur and Mr Rajput had ongoing discussions regarding the applicant’s continuing poor performance and absences. She says that a decision was made during that time to terminate the applicant’s employment because she had not shown any initiative or desire to take on feedback or change her behaviour[88]. Again there are no notes of these conversations.
[88] CB 310
After the warning letter - alleged dismissal
The applicant returned to work on 6 May 2019. The sequence of events which then followed remains unclear.
As mentioned previously, the applicant claimed that Mr Rajput approached her at the Craigieburn office in the first week of May 2019 regarding the demand for $50,000[89]. Mr Rajput has consistently denied that he ever asked the applicant to pay $50,000. When cross-examined, Ms Kaur agreed that if there was such a conversation it must have happened on 6 or 7 May 2019 as those were the only days she came to Craigieburn in that first week of May.[90]
[89] CB 55
[90] Transcript Day 1 P-105-106
What is clear is that on 6 May 2019 at 5.54pm, Mr Rajput emailed the migration agent, Mr Manjinder Sekhon to say he was not happy with Ms Kaur’s performance, that he was no longer able to support the visa sponsorship and that he wanted the visa withdrawn[91]. The applicant said that she was not aware that the respondent had sent this email to the migration agent.
[91] CB 226
The respondents say that on or about the following day, 7 May 2019, the applicant was handed a termination letter by Mr Barot, the general manager of the respondents’ Craigieburn office. The respondents alleged that the letter gave the applicant notice that her employment would be terminated with effect from 22 May 2019. The applicant denies having been given a termination letter and there is no evidence of such a letter.
Ms Sanjana Chopra gave evidence that she told the applicant on 7 May 2019 that her employment would be terminated on 22 May 2019. There is no record of this conversation, and the applicant denies it.
The applicant insisted that between 7 May to 13 May she performed her normal work at either the Dandenong or Craigieburn offices.
However, according to Ms Chopra, the applicant was absent from work again from 8 May 2019 and she believes that the applicant did not return until 13 May 2019. Ms Chopra gave evidence that she called the applicant on 8 May to find out whether she was coming in, but then stopped calling on the following days “because I had formed the view that it was pointless”.[92]
[92] CB 311
There is no objective evidence to verify the applicant’s attendance at work over that period. Mr Barot was not called by either party to give evidence. There are no time or work records which cover the period.
In any event, it is not contested that the applicant did attend work at the Craigieburn office on 13 May 2019, a fateful day in the parties’ relationship.
The applicant gave evidence about her recollection of that day in the office. She said she had a vivid memory of it. The applicant said that the Craigieburn manager Mr Barot had been angry with her and that there had been an argument between them. She said the argument related to her refusal to pay the $50,000 demand. She described being traumatised by the argument and Mr Barot’s treatment. The applicant said she travelled home from Craigieburn that day on the train. She said that she fell unconscious on the train and then fell down when she got home.
As an aside, I found Ms Kaur’s description of these events to be quite exaggerated and that she gave added colour to impress upon the Court just how traumatic an experience the events of that day had been. This propensity to emotionally embellish was a feature of her evidence, bit I generally took it as an attempt to persuade rather than mislead the court. But her manner of giving evidence presented difficulties because the applicant, and indeed her brother, seemed overwhelmed by the need to explain how they felt about certain events and perceived injustices rather than by describing exactly what actually occurred and when. Allegations made by the applicant and her brother were often broadly expressed as experiences endured over time, but too often were not clearly pin-pointed by reference to time or place.
There is evidence that at 4.09pm on the afternoon of 13 May 2019, the applicant sent a text message to Mr Rajput regarding Mr Barot’s behaviour[93]. In that text message she alleged, among other things, that Mr Barot did not know how to talk honestly and that he had been torturing the applicant at work. She alleged that Mr Barot had made false allegations about the applicant’s attendance at work and about her performance. The applicant said that she had been pregnant for 2 months and that Mr Barot did not speak nicely to her, was rude and that he told lies.
[93] Affidavit of Gagandeep Kaur dated 3 June 2022 Annexure GK22
Mr Rajput responded to the applicant’s text in the following terms:
“But as per my knowledge I already gave 2 week notice
Anyway we will send you notice again
And I will check with RAJ [Barot] for today”
At some point Ms Sanjana Chopra prepared a draft termination letter which was to inform the applicant that her employment with KPG Taxation would end on 22 May 2019[94]. Performance reasons were cited as the reason for the applicant’s termination and the draft letter states that the decision is irreversible. It is not clear when the draft termination letter was prepared but I infer it was prepared sometime in the 2-week period during which Ms Chopra said that she, Ms Palakpreet Kaur and Mr Rajput had been discussing whether to terminate the applicant’s employment. The evidence reveals that at 4.36pm on 13 May 2019 the draft was sent to Mr Rajput (and to the general manager Palakpreet Kaur) for review and approval.
[94] CB 224
The respondents contend that the termination letter was then sent to the applicant later that day. However, the evidence around that is not clear and the applicant denies having ever received it. The Dandenong office manager Ms Palakpreet Kaur in whose name the termination letter was drafted said that she did not have any independent recall of exactly when the letter was sent to the applicant. She believes that it was sent to the applicant by Ms Sanjana Chopra. There is however no objective evidence to confirm this belief.
In any event it is not contested that 13 May 2019 was the last day the applicant performed any work or attended any office of KPG.
Under cross-examination the applicant agreed that she was “was not doing the work of the training” after 13 May 2019, but denied that she had resigned or that her employment been terminated. The applicant gave evidence that nobody told her that she had been given notice of dismissal and she denies ever having received the termination letter[95]. The applicant denied that she abandoned her employment that day. Rather, the applicant alleges that she commenced leave without pay, although there is no evidence to suggest that such an arrangement was discussed, let alone agreed. Given the events of the day as described by her, and the preparation of a draft termination letter by KPG, it seems most unlikely that leave without pay was agreed.
[95] Affidavit of Gagandeep Kaur dated 24 October 2022 [26]
Elsewhere in her evidence she alleges that she commenced unpaid parental leave on or about 29 May 2019. The applicant alleges that she submitted medical certificates to officers of the first respondent in support of her parental leave.
The relationship post-13 May 2019
On 20 May 2019 Mr Rajput sent an email to the migration agent Mr Sekhon. He wrote: “Pls start process to cancel her visa. As we already gave her notice 2 week before”[96].
[96] CB 144
Mr Rajput had last communicated with Mr Sekhon 2 weeks previously, on 6 May 2019, when he informed Mr Sekhon that he was not happy with Ms Kaur’s performance, that he was no longer able to support the visa sponsorship and that he wanted the visa withdrawn. Mr Rajput did not expressly inform Mr Sekhon on that previous occasion that Ms Kaur had been given 2 weeks’ notice of termination but his email on 20 May 2019 is consistent with a previously held (but possibly unexpressed) intention to part ways with the applicant.
The following day, 21 May 2019, the migration agent Mr Sekhon sent Mr Rajput a sponsorship nomination withdrawal form for the applicant’s visa[97]. Significantly, the applicant was copied into this email, alerting her to Mr Rajput’s intentions.
[97] CB 144
Later that day the applicant wrote to her employer. The applicant’s correspondence was clearly triggered by the (perhaps unintended) revelation that KPG had issued instructions for the visa sponsorship to be withdrawn and the fear about what that might mean for her migration status.
In her letter to Mr Rajput the applicant expressed deep dissatisfaction about the way she had been treated and she made many of the serious allegations she maintains within this proceeding[98], including that she had not been paid between August and November 2018, that she had paid her own wages via the kickback arrangement and that KPG had demanded $50,000. The applicant indicated that she was willing to make a complaint to the relevant Fair Work or immigration authority about her employment situation. In cross examination, Ms Kaur denied that she raised these issues in her letter in order to put pressure on Mr Rajput not to sign the sponsorship cancellation.
[98] CB 147-149
In closing submissions, counsel for the respondents submitted that this letter was the first time the applicant had ever registered a complaint that she had not been paid, that she had been forced to repay the salary in cash and that she had been subject to a demand for $50,000. The respondents submit that there is a neat coincidence between the applicant’s realisation that her visa was in peril and the timing of her allegations.
Mediation
As a consequence of this finding, it follows that the employment of the applicant ceased on 21 May 2019. The applicant was entitled to be paid for her work up to and including that date. That date should also serve as the date on which the applicant’s entitlement to accrued annual leave became due.
The applicant was also entitled to notice of termination. There is no clear evidence that she was given notice and I find she was not. Mr Rajput’s text where he says he believed that notice had been given is not sufficient. The applicant’s claim for a payment in lieu of notice should succeed.
I must stress that is my finding in relation to the contractual relationship of employment. I say nothing about what that finding might mean for the status of the sponsored training visa or the parties’ respective obligations under the sponsored training agreement. The applicant’s claims for relief in this case turn on the employment relationship only.
Entitlement to remuneration and hours of work
Pursuant to the contract of employment, the applicant was entitled to be paid for 38 hours per week for the period commencing 4 February 2019 until the date of her termination. The applicant was also entitled to be paid for any further or additional hours which she was directed to work. For present purposes I will accept the respondent’s admission that the employment came to an end on 22 May 2019.
The respondents admit that the Banking, Finance and Insurance Award 2020 (the Award) applied during the entire period of her employment with the first respondent. Ms Kaur alleges that she was entitled to be classified as a Level 4 Employee within the meaning of the Award and paid the minimum rates applicable to that classification ($24.44 per hour) or, alternatively, at a lower level under that award or the National minimum wage. The respondents submit that she was only entitled to be paid the minimum rates applicable to a Level 1 Employee within the meaning of the Award.
The evidence given by the parties in relation to the work she performed was at a high level of generality and I remain unclear about what the applicant was required to do and what she actually did do on a day-to-day basis. The best evidence is probably contained in the notebook in which the applicant said she recorded their activities.
Apart from the applicant’s claim that her work justified payment at the Level 4 rate under the Award and the respondent’s claim that her work only warranted the Level 1 rate, there was very little in the nature of evidence or submissions from the parties to support their respective positions. Indeed, the Court was not taken to the Award and it was not in evidence.
Given the respondents’ admission that the Award applied to the applicant’s employment and taking into account the general description of work given by the applicant, her very limited experience as a trainee accountant, the fact that she was a new employee for the respondent and inferring that she would have required a high level of supervision, I am inclined to the view that the applicant was entitled to the greater of the Award Level 1 rate or $21.45 per hour as set out in the documentation provided to the Migration Department in November 2018.
The applicant was entitled to be paid at the applicable rate for 38 hours per week. Although the respondents claim that the applicant’s attendance was unreliable and erratic, there were no time and wages records produced to corroborate those allegations, and the Pay slips produced by the respondent provide little assistance. The best the respondents could do to demonstrate the applicant’s pattern of attendance was to point to gaps in the notebook. The applicants also submit that it was not possible to reconcile the applicant’s claims that she only took two days of sick leave and the evidence of Ms Chopra that she took sick leave from 29 April until 6 May and for a period she was uncontactable.
I accept that the applicant was absent from time to time, but there is little evidence to explain the reasons why those absences occurred or whether those absences were authorised. There is no evidence of any refusal by the applicant to attend for work as directed. There is no clear evidence that any of her absences were not authorised, although I do accept that the applicant’s reliability was the subject of counselling. The applicant was, in my opinion, entitled to be paid for 38 hours per week during the course of her employment.
The evidence regarding the performance of additional hours over and above 38 per week was even more obscure. There was no evidence that Mr Rajput or any other authorised KPG manager directed the applicant to perform work in addition to or outside ordinary hours. Indeed, there was no objective documentary record of the hours actually worked on each day by the applicant, save for calculations she made in the margins of the notebook. In essence, the applicant’s claim rested on the travel time between Dandenong and Craigieburn and her belief that time in the company van should be counted as time worked.
The applicant bears the onus of proof of persuading me that she was required to perform work in addition to the contracted hours. The evidence about this issue is in a poor state and I am not satisfied that the applicant has established her claim to the requisite civil standard.
The kickback arrangement
The next question is whether the applicant was paid the remuneration to which she was entitled. This requires consideration of whether there was a “kickback” arrangement which had the effect of the applicant funding any wages that were paid to her by the respondent.
I have already set out in some detail the evidence relied upon by the applicant and Jatinder to establish the existence and operation of the alleged kickback. In addition to their own evidence, the applicant relies on a contemporaneous record of bank transactions and the evidence of other former employees which she says reveals a tendency for Mr Rajput to engage in such conduct.
The applicant seeks to derive plausibility from the fact that kickbacks are a known illegitimate practice in the migration industry. When a legislative amendment was introduced to the Migration Act to combat kickback arrangements, the Minister’s second reading speech in support of the bill stated: “A strong response is required to ensure that this practice, which has continued under successive governments, does not continue”[139].
[139] The second reading speech is accessible here:
The applicant submits that her account of the kickback demands is much easier to accept when viewed in the context of a known illegitimate practice and in light of evidence regarding the same employer which points to prior engagement in that practice.
The respondents have always denied the alleged kickback arrangement. At all times Mr Rajput has maintained that the allegation is malicious and without any foundation. The respondents submit that the applicant and her brother have no credit as witnesses and are prepared to lie.
The respondents also submit that the Court should place no or very limited weight on the so-called tendency evidence of Simmy Bhatia, Ziniya Singh and Navdeep Kaur. The respondents submit that even if the Court accepts the tendency alleged by the applicant, that does not mean that the applicant’s evidence in this case is true. The applicant might, for example, be leveraging her own narrative from rumours or things she has learned from others.
Furthermore, the respondents point to material differences in the witness accounts which reduces its efficacy as evidence of tendency. For example:
(a)both Simmy Bhatia and Ziniya Singh allege that they agreed to a salary repayment arrangement in advance of their employment, whereas the applicant claims the demand was made well into her employment;
(b)the withdrawals from Simmy Bhatia’s bank account were not regular in timing or quantum and they did not neatly accord with salary payments;
(c)Navdeep Kaur does not allege any demand from Mr Rajput for payment of her salary;
(d)unlike the applicant, none of the tendency witnesses allege that Mr Rajput made threats of termination or engaged in other harassment to elicit payments; and
(e)at least two of the three witnesses left their employment on good terms and the third, Navdeep Kaur, who claims to have been terminated unexpectedly, never worked for KPG.
In closing submissions, counsel for the respondents said[140]:
“You cannot substitute [the applicant’s] reasoning for analysis of the applicant’s credibility, and whether or not her standing on their own two feet, her allegations stand. But, in any case, it’s not correct to say, as my learned friend submitted in the written submissions, that he has engaged in exactly the same conduct. Because if anything, the allegations of the three other witnesses show a striking departure from past practice in this case. Ziniya Singh and Simmy Bhatia highlight some curious aspects of the applicant’s allegations. Both of those women say, the cashback arrangement was pre-agreed. Neither of them say, we came and we were promised employment and then he didn’t pay us and then sprung on us this cashback demand. They both say, we came and we spoke to him and we came to an arrangement before we started.”
[140] Transcript of Closing Submissions P-63
The respondents quite properly submit that the Court must be independently satisfied of the truth of the applicant’s allegations and should not rely on the evidence of others to fill deficiencies in her evidence.
Having carefully weighed all the relevant evidence and applying the approach to fact finding I described earlier, I am satisfied that during the period of the applicant’s employment she was required to make payments to Mr Rajput to cover KPG’s costs of employing her. In my view this requirement became a condition of the sponsorship arrangement and the applicant’s ongoing employment.
I have been persuaded to this finding based on the following evidence:
(a)my overall preference for the evidence of the applicant and Jatinder in relation to this issue, over the bare denials of Mr Rajput. I do not believe the allegation has been fabricated and I believe the applicant and her brother gave a credible account;
(b)the unequal bargaining positions between the parties, including Mr Rajput’s overall control of the visa application process and employment arrangements. The evidence satisfied me that the applicant was vulnerable and Mr Rajput had the upper hand;
(c)while the applicant commenced work on 4 February 2019, she was not paid at all until she complained. It was when she complained that she was told the basis on which she would. The applicant was not paid until after Jatinder paid the first kickback instalment of $2,600;
(d)I accept Jatinder’s evidence that he met with Mr Rajput after the applicant commenced her employment and during the period of her employment. The applicant also deposes to Mr Rajput demanding to see her brother. Such meetings between Mr Rajput and the applicant’s brother would be inexplicable but for the probability that they were about financial arrangements pertaining to the applicant’s employment;
(e)the bank transactions which showed withdrawals from the accounts of the applicant and her brother and then deposits of salary in quick succession. The coincidental transactions are circumstantial but highly probative due to their consistency and regularity;
(f)the implausibility that such regular and consistent withdrawals would be made for other purposes, such as routine household expenditure, prior to the deposit of a salary. It is more likely that withdrawals for that purpose would occur after the payment of salary;
(g)the inherent unlikelihood that the applicant and her brother would have invented this story or would have had any motive as early as March 2019 to set up Mr Rajput so that allegations could be made against him at a later time;
(h)the tendency evidence was given by witnesses who had nothing to gain from doing so. The tendency evidence was not diminished by the respondents’ claim that one of the witnesses (Navdeep Kaur) never worked for KPG. I do not accept that she gave false evidence and I see no reason why she would have been motivated to do so;
(i)although the tendency evidence was of limited value and did not reflect in precise terms the kickback arrangement alleged by the applicant, the evidence was believable and it did weigh in favour of a generalised finding that Mr Rajput was prepared to engage in such arrangements;
(j)such an arrangement in a migration context is not unheard of as evidenced by amendments to the Migration Act to stem and criminalise such conduct by employers. The applicant’s claims are not inherently implausible;
(k)the alleged kickback claim is not in my view a recent invention by the applicant. The allegation was raised by the applicant on 21 May 2019 immediately after she first learnt that Mr Rajput intended to withdraw sponsorship. The immediacy of that response weighs against it being a fabricated set up. Rather, upon learning that Mr Rajput intended to terminate the sponsorship, the applicant decided it was time to let the cat out of the bag;
(l)my assessment that difficulties for the applicant in her employment coincided with disputation between the respondents and the applicant regarding the kickback arrangement. I accept the applicant’s submission that her (or her brother’s) refusal to pay was the true catalyst for the warning letter and her subsequent dismissal for poor performance. I accept that the applicant was not a strong performer and that initial counselling about her attendance and presentation was warranted. Performance management was not the sham alleged by the applicant. But once the kickback arrangement was challenged, I accept that the performance issues were seized upon as a convenient premise for notice and termination; and
(m)Mr Rajput’s response to the allegations. In the face of such malicious and fraudulent claims, one would have expected Mr Rajput to have aggressively pressed ahead with his plan for the withdrawal of the applicant’s sponsorship. Rather than do that, Mr Rajput retreated and participated in a mediation to find a way through the falling out. In my view Mr Rajput was motivated to agree to the “extension” arrangement in order to keep a lid on an allegation he knew to be substantially true.
I do not altogether discount the possibility that the applicant and her brother were initially complicit in the kickback arrangement. The signing of the contract of employment, the TFN form, the complaint about underpayment, the alleged disclosure of the applicant’s pregnancy and Mr Rajput’s explanation about how things would work going forward, all occurred on or about 21 February 2019. The applicant had been working but refusing to sign the employment documentation for the previous two weeks. I infer that by 21 February 2019 a deal was done between the parties as to how things might move forward from there. The fact of the matter is that the applicant and her brother did make payments to Mr Rajput over several pay cycles. It does suggest a degree of cooperation– although I am inclined to the view that the applicant probably saw no alternative but to agree.
Nonetheless, parties cannot contract out of their statutory obligations and no amount of consent can lawfully relieve an employer of its obligation to pay an employee for the work he or she performed. Even if there was complicity or cooperation, it was never lawful. I am satisfied that when the applicant either refused to pay or was unable to pay, things turned against her and her ongoing employment under the sponsored training arrangement was then in peril.
My findings in relation to the kickback arrangement has the following consequences:
(a)the applicant in effect funded her own wages during the course of her employment. I am not satisfied that the respondents can be taken to have paid the applicant for her work or as having discharged their payment obligations to her under the Award and the FW Act. The applicant was entitled to be paid for 38 hours per week for the period of her employment at the greater of $21.45 per hour or the Level 1 Award rate;
(b)similarly, the applicant in effect funded the superannuation contributions which the respondent was required to make on her behalf. By reason of the kickback arrangement, the respondent ha not discharged its obligation to make contributions as required by the Award;
(c)by requiring payments from the applicant, the respondents knowingly misrepresented the applicant’s workplace rights under the Award and the FW Act, in contravention of s 345(1) of the FW Act; and
(d)the applicant, by reason of her migration status was subjected to undue influence or undue pressure to agree to a deduction from the amounts to which she was lawfully entitled in relation to the performance of work, being a contravention of s 344(e) of the Act.
The $50,000 payment
The evidence about the so-called $50,000 demand is much more ambiguous and does not weigh so heavily against the respondents. I am not persuaded to the requisite level of satisfaction that either Mr Rajput or Mr Barot demanded that the applicant pay $50,000 as a condition of her ongoing employment and the company’s sponsorship.
I do not reject the $50,000 claim as having been fabricated by the applicant from thin air. Rather, I think there is a context in which a suggested payment of $50,000 might have arisen, but I am not satisfied that it took the form of a demand as alleged by the applicant.
I have accepted that the kickback arrangement was imposed as a condition of the applicant’s ongoing employment. Even though the applicant did comply with the arrangement for a period of time, she ceased to do so after a few weeks’ employment. This created a problem for Mr Rajput as I suspect his agreement to sponsor the applicant was always premised on it being a no-cost exercise for KPG. I consider it likely that Mr Barot also learned about this complication.
My instinct is that the issue of the applicant challenging the kickback arrangement was the source of occasional discussion between Mr Barot and the applicant in their daily drive from Dandenong to Craigieburn in the company van. In the course of those discussions, and perhaps in other discussions in the Craigieburn office, I suspect there may have been some loose talk from Mr Barot about what he thought would make Ms Kaur’s problem disappear. It is plausible, in that context, that Mr Barot may have suggested that a lump sum payment would satisfy Mr Rajput and allow the applicant to continue under the sponsor traineeship without having to turn up for work or continue the kickback. The applicant recalls (although there is no evidence to corroborate) that Mr Barot volunteered that he had made a lump sum payment to KPG in respect of his own sponsored employment.
It is also possible, and would be consistent with the applicant’s evidence, that Mr Rajput made a similar suggestion when he attended the Craigieburn office. But that possibility falls well short of what the applicant must prove for me to make the serious finding she seeks.
The respondents categorically reject the allegations about Mr Barot, including in relation to his alleged demands for a $50,000 payment. Mr Rajput denies that Mr Barot was ever instructed by him to engage in such behaviour and he expressly disavows any knowledge of it. Mr Rajput also denies having ever made such a demand himself, either of the applicant or her brother Jatinder. None of the tendency witnesses gave evidence of being subjected to a demand for a lump sum payment.
I accept the respondents’ submission that the applicant’s claim in relation to the alleged $50,000 demand has developed over time. It did find some voice in the applicant’s letter of 21 May 2019, but it was not mentioned in her unfair dismissal application. I also agree that the applicant’s brother did not raise this allegation on numerous occasions when he could have done so and his explanation that he “forgot” was unconvincing.
Speculate as I may about how talk of $50,000 entered the arena, the evidence simply does not persuade me that a demand was made as alleged by the applicant. I am not satisfied that such a demand was formally conveyed or that it was expressly refused. I think it more likely that the applicant was concerned that chat and hints about a lump sum alternative to the kickback might lead to such a demand being made and she decided in anticipation to cease working under that perceived fear.
Although I have some reservations about the respondents’ outright denial of the claim, I am on the evidence before me not persuaded that either Mr Rajput or Mr Barot on his behalf demanded that the applicant pay a lump sum of $50,000.
Other claims of non-compliance by the respondents
Payslips
Like so much else in this case, the evidence surrounding the issuing of payslips was ambiguous. Mr Rajput claims that he issued payslips to the applicant[141] and deposed to the accuracy of “Payroll Advice” documents which recorded the following payments on the following dates:
[141] CB 219, CB 281-283
Pay date
Pay period
Cheque No.
Net pay
Super
13/3/19
4/2/19 – 10/2/19
242
$794.00
$77.43
13/3/19
11/2/19 – 24/2/19
260
$1,426.00
$154.87
22/3/19
25/2/19 – 10/3/19
244
$1,426.00
$154.87
10/4/19
11/3/19 – 24/3/19
308
$1,426.00
$154.87
30/4/19
25/3/19 – 7/4/19
322
$1,426.00
$154.87
The applicant claims that these payroll records were not produced at the time and that the documents annexed to Mr Rajput’s affidavit are not authentic. The applicant submits that the cheque numbers are out of sequence and have been manipulated. The applicant also says that the payslips were created and printed on 30 May 2020, a year after she ceased working.
The respondents submit that the documents annexed to Mr Rajput’s affidavit were printed on 30 May 2020 but that they accurately recorded entries made into KPG’s bookkeeping system at the time as the applicant was being paid by bank transfer. Rather than inferring any foul play on the part of the respondents, the respondents submit that the better inference is that the documents were resident in the KPG accounting system but were printed for the purposes of preparing a response to the applicant’s unfair dismissal claim in 2020.
Section 536 of the FW Act provides that an employer must give a payslip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. The payslip must be in an appropriate form and include the information prescribed by the Regulations.
The question to be determined is whether the applicant was given a payslip within one day of each of the payments being made. The question is not whether the respondent made entries into its payroll system or when it did so. I do not consider it necessary for me to determine when the Pay Advices exhibited to Mr Rajput’s affidavit were created and whether they are authentic.
In relation to the question to be decided, the applicant has given evidence that she was not provided with a payslip within one working day of receiving payment as required by s 536. In the absence of any evidence to demonstrate that she was given a copy of a Pay Advice at that time, I am inclined to accept her evidence. It was surely within the power of the respondents to produce evidence to contest the applicant’s claim. If a pay advice had been provided to the applicant, I would have thought that the respondents could have produced an email or some other contemporaneous document to that effect or to have called evidence from a relevant manager explaining how the payslip was provided. It is not enough for the respondents to submit that “there was no reason to withhold payslips […]”[142].
[142] Respondents’ Supplementary Outline of Final Submissions at [12]
I am satisfied on the evidence that the respondent contravened s 536(1) of the Act in relation to each of the wages payments made to the applicant.
Fair Work Information Statement
Section 125 of the FW Act requires an employer to give an employee the Fair Work Information Statement (as defined in s 124) before, or as soon as applicable after, the employee starts employment. The requirement to provide the Information Statement forms part of the National Employment Standards prescribed by Part 2-2 of Chapter 2 of the Act[143]. By reason of s 44 an employer must not contravene a provision of the National Employment Standards.
[143] See in particular s 61(2)(j)
The applicant contends that the first respondent did not provide her with a copy of the Fair Work Information Statement. KPG denies the allegation but did not produce any evidence that it did. I accept the applicant’s evidence and find that KPG contravened its statutory obligation.
Access to the Award
The respondents admit that the applicant was at all material times covered by the provisions of the Banking, Finance and Insurance Award 2020. The applicant submits that the first respondent did not provide her with access to the benefits of that award in contravention of s 45 of the FW Act.
Insofar as I have found that KPG:
(a)failed to pay the applicant for 38 hours per week between 4 February 2019 and 21 May 2019;
(b)failed to give the applicant notice of the termination or payment in lieu thereof; and
(c)failed to pay accrued annual leave on termination of employment
I accept that the first respondent contravened the provisions of the Award and contravened s 45 of the Act.
Accessorial liability
For the reasons set out above, I have found that the first respondent KPG contravened the Fair Work Act in a number of material respects. It is unnecessary to repeat those findings again.
The applicant seeks a finding that the second respondent, Mr Rajput, was involved in each of KPG’s contraventions by reason of:
(a)his aiding and abetting of KPG;
(b)being knowingly concerned in or a party to each of the contraventions by his acts and omissions, directly or indirectly; and
(c)conspiring with KPG.
The applicant submits that by reason of his involvement in the contraventions, Mr Rajput should be taken to have engaged in each of those contraventions in accordance with s 550 of the Act.
The relevant principles as to “involvement” and accessorial liability were discussed by White J in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227] - [234]. In sum, the central principles are:
(1)to be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it[144];
(2)constructive or imputed knowledge is not enough; actual knowledge is required. But actual knowledge may be inferred from “exposure to the obvious”. It is not necessary that the person also knows that the elements amount to a contravention. Put another way, a person may be an accessory without knowing that the conduct in which he or she is involved is unlawful[145]; and
(3)the person must have engaged in conduct which implicates or involves her or him in the contravention, so that there is a “practical connection” between the person and the contravention[146].
[144] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [229]
[145] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [233]
[146] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227]
Subsequently, the relevant principles were discussed by the Full Court in Fair Work Ombudsman v Hu [2019] FCAFC 133 (Hu), including the decisions regarding the requirement that the accessory have actual knowledge of the essential elements of the contravention as discussed in Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365 (Devine Marine) and EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134.
It is settled law (as per the Full Court in Hu, applying Devine Marine) that accessorial liability:
(a)requires actual knowledge of the essential elements of the contravention and not imputed knowledge; and
(b)does not require knowledge that the essential elements constitute a contravention.
For liability to be found the accessory must be shown to have engaged in conduct which implicates him in the contraventions so as to demonstrate that there is some practical connection between him and the contravention[147].
[147] Fair Work Ombudsman v Foot & Thai Massage [2021] FCA 1241 at [781]
In terms of his involvement in company affairs and in the conduct of KPG, including its contraventions, the evidence and my findings speak for themselves. Mr Rajput is the sole shareholder and director of KPG. He is in all practical respects responsible for decisions made by the company in respect of its employees. Mr Rajput was the guiding mind of the company. He is the top man and all other officers and employees of KPG are subordinate to him. He was in effective control of the human resources and payroll functions.
Mr Rajput was centrally involved in matters pertaining to the applicant from August 2018. He was involved in the first meeting and discussions with the applicant and her brother. He instructed the migration agent to set the wheels turning on the sponsored training visa application. Mr Rajput took charge of communications with the agent and completed relevant documentation on the company’s behalf. He personally warranted that he ran a legitimate accounting practice and that work performed by the applicant as a trainee would be conducted under his overall supervision. Mr Rajput required the applicant to complete a contract of employment, he decided where she would work, how much she would be paid and what she would do. He was, as I have found, centrally involved in the kickback arrangement.
Mr Rajput has admitted that he was at all material times aware of the existence of, and his obligations pursuant to the FW Act and the Award[148] but he denies being involved in any contraventions by KPG.
[148] FASOC at [108]; Amended Defence at [108]
Mr Rajput knew that the kickback arrangement was unlawful. Indeed, the arrangement was designed to give the appearance of compliance with employment and migration laws. The mere design of the arrangement to give such a false appearance implies a consciousness of the contravention it was intended to conceal. When the kickback was challenged, Mr Rajput agreed to a fictional extension of employment in the hope that his involvement would not be exposed.
Mr Rajput’s admission of his knowledge of the obligations imposed on KPG and the Award, coupled with my findings regarding his involvement in the company’s conduct, leads to the inevitable conclusion that Mr Rajput was relevantly involved in each of KPG’s contraventions within the meaning of s 550 of the FW Act.
DISPOSITION AND NEXT STEPS
As mentioned at the outset this proceeding was conducted on the basis that the Court would first determine questions of liability before deciding whether it will be necessary to hear the parties in relation to penalties, compensation and costs.
To summarise, for the reasons set out in this judgment, I am satisfied that the first respondent KPG contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (FW Act) during the period of the applicant’s employment:
·s 45 of the FW Act by failing to pay the Applicant the minimum rate of pay in contravention of the Banking, Finance and Insurance Award 2020 (the Award);
·s 45 of the FW Act by failing to pay the Applicant’s wages on a weekly, fortnightly or monthly cycle as required by cl 16.1 of the Award;
·s 45 of the FW Act by failing to make sufficient superannuation contributions to satisfy the obligations under the Superannuation Guarantee as required by clause 19.2 of the Award;
·s 45 of the FW by failing to pay accrued annual leave on termination;
·s 117 of the FW Act by failing to provide written notice of termination and a notice period of payment in lieu thereof;
·s 125 of the FW Act by failing to provide the Applicant with a copy of the Fair Work Information Statement;
·s 323(1) of the FW by failing to pay the Applicant’s wages at least monthly;
·s 325(1)(b) of the FW Act by requiring payments from the Applicant;
·s 344(e) of the FW Act by subjecting the Applicant to undue influence or undue pressure, by reason of her migration status, to agree to a deduction from the amounts to which she was lawfully entitled in relation to the performance of work;
·s 345(1) of the FW Act by requiring payments from the Applicant;
·s 536 of the FW Act by failing to provide the Applicant with payslips in the form prescribed by the FW Regulations or which included the information prescribed by the Regulations, within one day of making payment to her in relation to the performance of work or at all;
I have also found that the second respondent, Mr Rajput, was relevantly involved in each of KPG’s contraventions within the meaning of s 550 of the FW Act.
In relation to each of the established contraventions, the applicant has sought relief in the nature of civil penalties and compensation. In particular, in relation to penalties, the applicant has already made clear that she will urge the Court to find that the contraventions constitute “serious contraventions” for the purposes of s 557A of the FW Act.
In order to bring this proceeding to a conclusion, I propose to make case management orders which will afford the parties an opportunity to file further evidence and written submissions on the questions of penalties, compensation and costs. That process will afford the applicant an opportunity to reflect upon and address the serious contravention point after taking these written reasons into account and for the respondents to respond accordingly. While I am content to determine these outstanding matters on the papers, I will list the matter for further oral addresses should either party request an opportunity.
I certify that the preceding four hundred and forty-four (444) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 23 January 2025
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