Muthu v Radeshar Pty Ltd
[2020] FCCA 2158
•15 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUTHU v RADESHAR PTY LTD | [2020] FCCA 2158 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act – application for alleged contraventions of the Fair Work Act 2009 (Cth) – alleged underpayment of employee – whether there was an employment contract – application dismissed – costs rewarded to respondent. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.10, 26.01 |
| Cases cited: Mathieson v Nield (t/as South End Mixed Business) [2013] FCCA 1749 Waras v Tagteam Australia Pty Ltd (2016) 312 FLR 206 |
| Applicant: | CHRISTOPHER SILUVAI MUTHU |
| Respondent: | RADESHAR PTY LTD (ACN 109 627 456) |
| File Number: | SYG 1271 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 4 -5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 15 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lahoud |
| Counsel for the Respondent: | Mr Widjaja |
| Solicitors for the Respondent: | Quill Legal Pty Ltd |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1271 of 2017
| CHRISTOPHER SILUVAI MUTHU |
Applicant
And
| RADESHAR PTY LTD (ACN 109 627 456) |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves allegations of unpaid wages owing to the applicant by the respondent. In an Amended Statement of Claim, filed on 17 August 2017, the following is pleaded:
1) At all material times, the respondent was a corporation registered in the State of New South Wales.
2) The respondent and its employees were at all material times covered by the State/Federal Award and minimum salary level as prescribed by the then Department of Immigration and Citizenship, but now known as the Department of Immigration and Border Protection.
3) The applicant commenced employment with the respondent as a Training and Documentation Coordinator, on or about 13 November 2011.
Particulars
Shortly before the commencement, referred to in 3 above, the applicant and Raman Pillay, a Director of the respondent, held a conversation at the respondent’s premises at Quakers Hill, NSW, with a witness (other than the applicant) present, in the following terms were agreed:
a. That the starting salary that was to be $65,000.00 pa, payable fortnightly and rising to $85,000.00 pa in the second year, would be paid:
b. Free accommodation will be provided within the vicinity of the respondents said office at Quakers Hill:
c. Such tobacco etc. as the applicant should need for his personal use:
d. The hours of work were to be between 8am and 6pm, six days per week.
4) The applicant says that contrary to term (a), the respondent did not pay the agreed salary, saying words to the effect:
We shall hold and save your salary for you so that you may acquire sufficient to put down as a deposit on a home for yourself.
Contrary to the said agreed term, the respondent paid to the applicant, sums amounting between $100 - $200/week, throughout the period of employment.
5) In or about 6 October 2013, the applicant confronted Mr Pillay of the respondent and said words to the effect “where are my unpaid wages” to which Mr Pillai replied, “No problem. Next week”, which was his usual answer to the question asked of him, each fortnight by the applicant.
6) The applicant received nothing from the respondent, the respondents saying “take a short break, go to India and I’ll give you return ticket and send you all your money”. The respondent’s sister then gave the applicant, as instructed by Raman Pillay, the sum of $800.00. Contrary to the said promise, no money was sent and the return ticket component was cancelled by the respondent, leaving the applicant stranded at Mumbai International Airport.
7) And the applicants claims:
a. Unpaid wages of $143,215.00.
b. General damages to be assessed by the Court, for worry stress and nerves.
c. Interest on (a) and (b) above, at the rate prescribed in r 26.01 of the Federal Circuit Court Rules 2001 (Cth).
In its defence, the respondent denied that the applicant had ever been an employee of the respondent and that no contract existed between the applicant and the respondent, as alleged. The conversation in paragraph 4 above, is denied in its entirety. It is admitted that Mr Pillay, a Director of the respondent, purchased a ticket for the applicant, but did so in a personal capacity. The respondent denies any involvement in the applicant’s trip to India, as alleged.
The matter was set down for hearing on 4 and 5 August 2020. The preparation of the matter for hearing was less than satisfactory. On the 31 July 2020, the Friday before the hearing, which was commenced to start on the Tuesday, the respondent filed an Application in a Case, seeking the following orders:
1. An order pursuant to rule 13.01 of the Federal Circuit Court Rules 2011, setting aside the applicant’s statement of claim.
2. Further or in the alternative, an order pursuant to rule 13.10 of the Federal Circuit Court Rules 2011, summarily dismissing the proceedings.
3. Costs.
The respondent admits that a sealed copy of the application, which seeks to set aside the originating application, was not served on the applicant. Given the late filing of this application, it was determined that the issues raised within it, would be determined at trial, as part of the hearing of the substantive matter.
The matter was further complicated by the fact that, notwithstanding Court orders, the applicant was to file and serve written submissions of no more than 10 pages in length, on or before 24 July 2020. Counsel for the applicant did not provide a copy of written submissions until an email was sent to the Court and the respondent, at approximately 11.00pm on 3 August 2020, the day before the hearing.
As a consequence, no written submissions were received from the respondent and submissions at the conclusion of the evidence were restricted to oral submissions. The Court further notes that the applicant’s written submissions have not yet been formally filed with the Court.
Given that both parties were represented, the Court expresses its concern as to the manner in which the preparation of this matter for hearing, has been undertaken. No proper excuse has been provided for the failure of Counsel for the applicant, to provide written submissions within the timeframe set by the Court, being on or before 24 July 2020. No explanation has been given as to why the applicant’s written submissions have not yet been filed with the Court. No proper explanation has been provided as to why the legal representatives for the respondent, sought to make a late application, seeking to have the matter struck out on a jurisdictional basis.
The Court is reasonably entitled to expect more from practitioners to assist it, in the timely preparation and conduct of the hearing of matters.
The Applicant’s Evidence and Submissions
The applicant’s evidence in Chief relied upon affidavits sworn 17 July 2020, 20 November 2017 and 26 July 2017. In addition, documents attached to the applicants written submissions, filed on 2 November 2018, were admitted as evidence. No other witnesses were called in the applicant’s case.
The applicant deposed that he was employed by the respondent as an Operations Manager. This entailed preparing and managing documentation, regarding Sponsorship (Employer Sponsorship) of Temporary and Permanent Employees (subclass 457 and ENS). The applicant deposes his job was to get all the relevant papers ready for signature and authority of the respondent being the Director, Mr Pillay. The applicant deposes that he was also required to compile relevant documents, such as contracts between state training authorities, apprenticeship and traineeship providers and the respondent’s umbrella of companies. The applicant further deposes that he was required to attend the respondent’s hotels delivering hospitality, convention, party and function supplies and also to assist, as the holder of the master key for these premises and attend when required.
In support of the applicant’s claim to be an employee, he produced various records, including a document that indicates that the applicant was an enrolled trainee in a Certificate IV, in Frontline Management. The applicant alleges that the respondent was able to receive payment for the employees of his companies, to undergo training from various government schemes designed to up skill and employ Australian citizens and permanent residents. The applicant alleges this funding amounted to approximately $210,000.00.
The applicant produced, in various attachments to his affidavits, a large number of emails which appear to involve the respondent’s business, in which he was copied in. The applicant also provided a copy of a certificate of completion, for a Certificate IV in Frontline Management, dated 28 June 2018.
In cross-examination, the applicant was evasive and unresponsive to many of the questions and despite, on number of occasions, being advised to restrict his answers to the questions asked, he continued to provide a commentary of matters he felt important. It was put to the applicant by Counsel for the respondent, that Ms Araby had provided him with many of the documents he relied upon, to prove an employment relationship with the respondent. The applicant denied he was sent documents pertaining to the respondent by Ms Araby, without the permission of the respondent.
The applicant denied he had continued to do migration work, after he was deregistered, stating that he did not need a Migration Agent’s licence if you acting for an employer. The applicant denied, on occasions, completing work for persons who were not employees of the respondent. The applicant denied receiving rewards from these persons for providing them with migration assistance. The applicant was asked as to why he lived at the respondent’s house in Quakers Hill, to which he responded that it was close to the respondent’s office and allowed him to work longer hours.
It was put to the applicant by Counsel for the respondent, that he understood the need for group certificates and for pay slips to be provided, in order for tax returns to be submitted. The applicant agreed that at no point of time, did he follow up with the Australian Tax Office as to why no group certificate had ever been provided to him, given he claimed he was employed by the respondent. It was put to the applicant that he was solely responsible for the loan document submitted to Toyota Finance, in respect of a car loan, which contained incorrect factual details, as to the employment history of the applicant with the respondent.
It was put to the applicant by Counsel for the respondent, that the reason why he had no employment contract and no statement of duties, was because he was not employed by the respondent. The applicant replied that this was because Mr Pillay never put anything in writing.
In re-examination, the applicant was asked why he continued to work for the respondent, given that he was not being paid. The applicant stated that at that time, he had no choice, he had nobody who wanted to give assistance to him.
Counsel for the applicant chose to make no oral submissions and instead relied upon written submissions. In the written submissions, Counsel for the applicant concedes that the applicant is not covered by a single industrial award and that his duties were possibly covered by up to four different awards. Instead, reliance was placed on Mathieson v Nield (t/as South End Mixed Business) [2013] FCCA 1749 (“Mathieson”), to argue a principle of quantum merit, in relation to the claim by the applicant against the respondent.
Counsel for the applicant submitted that the Court would find, in accordance with Mathieson that, on the evidence, a contract of employment existed and that the Court should then determine what sum of money should be paid by the respondent to the applicant, for the work he is said to have performed.
The Respondent’s Evidence and Submissions
The respondent relied upon a single affidavit sworn on 5 December 2017, by Mr Raman Pillay, a Director of the respondent’s company, Radeshar Pty Ltd. In that affidavit, Mr Pillay deposes that the respondent operates a number of hotels and motels, being the Killara Inn Hotel and Conference Centre, the Windsor Terrace Motel, the Windsor Motel and the Ascot Motor Inn. Mr Pillay denies ever having a meeting with the applicant, where the applicant was employed on behalf of the respondent, for a salary of $65,000.00 in the first year and $85,000.00 in the second year.
Mr Pillay denies having any meetings with the applicant where he agreed to pay any amount of money at all on behalf the respondent and nor did he engage the applicant to do any work for the respondent. Mr Pillay denies employing the applicant to undertake any duties for the respondent and in particular, to act as a ‘Training and Documentation Coordinator’ for the respondent, as the respondent did not have and has never had a Training and Documentation Coordinator.
In relation to a document produced by the applicant, which is a spreadsheet showing a number of people undertaking various courses, Mr Pillay states he does not know who created the spreadsheet, or for what purpose it was created. Mr Pillay deposes that he knows the respondent had no involvement with the applicant’s training to obtain his Certificate IV in Frontline Management.
Mr Pillay deposes that he first met the applicant in a personal capacity, in about 1996, when they met at a function, whilst the applicant was still a registered Migration Agent. In about late 2011 or early 2012, the applicant came to Mr Pillay and said:
I don’t have a job at the moment because I’m no longer allowed to practice as a migration agent. Can you help me out and help me get a roof over my head as I can’t afford to pay rent.
Mr Pillay deposes he felt sorry for the applicant, who had fallen on hard times, so he let him stay in a granny flat of a property that Mr Pillay owned with his wife, located in Quakers Hill. Eventually, the applicant decided he wanted to move from the granny flat into the main house at the property. At the end 2012, the applicant entered into a one year lease, which was to run from 1 January 2013 to 31 December 2013. Mr Pillay alleges that while staying at the main house, the applicant was collecting unemployment benefits and collecting rent from other persons who were living at the property, but failed to pay Mr Pillay the rent, in accordance with the lease.
Mr Pillay alleges that even though the applicant was not allowed to act as a Migration Agent, it was Mr Pillay’s knowledge that the applicant provided advice to people who were seeking assistance in their dealings with the Department of Immigration, such as the filling migration paperwork. One day, the applicant asked Mr Pillay “Can you help me find a place to sit”. As Mr Pillay had an office located on Railway Road in Quakers Hill, which had a number of vacant seats, Mr Pillay let the applicant use one of those vacant seats. Mr Pillay states that he was aware that the applicant did some paperwork for employees of the respondent, relating to their section 457 visas and in relation to other immigration matters and that each of those persons engaged and paid the applicant individually.
Mr Pillay alleges that one of the person who obtained advice and assistance from the applicant was Mr Pillay’s sister who, in early 2013, was attempting to obtain the necessary visas so she could work and stay in Australia permanently. Mr Pillay alleges that his sister paid the applicant $3,000.00 in cash.
Mr Pillay deposed that the respondent did not have and has never had 30 employees and as such, the applicant could not establish 30 traineeships, as alleged. As the applicant was not a registered Migration Agent, he was not engaged by the respondent to prepare or lodge any documentation to the Department of Immigration. The respondent did not have nor has never held the national franchise for UCMAS. Mr Pillay denies the applicant prepared any documentation that had any dealings with training organisations, on behalf of the respondent. Mr Pillay states that individual employees of the respondent did seek advice and have had documents completed for them by the applicant, at the individual employees request and the work was requested and paid for by each of those individuals, not by the respondent.
Attached to Mr Pillay’s affidavit, are payroll summaries for the respondent covering the period 1 July 2010 to 31 July 2014. The applicant’s name does not appear on any of those payroll summaries.
In cross-examination, Mr Pillai admitted that he had assisted the applicant in organising the purchase of a car, together with a car loan. When asked by Counsel for the applicant, what Mr Pillay did to assist, he stated “I called somebody in a Toyota dealership and I paid some money for him as an advance”. Mr Pillay was shown a number of documents, including an executed lease for premises at Quakers Hill, showing that the applicant and five other tenants, leased the premises for the calendar year 2013.
Mr Pillay was also shown, with what appears to be a payroll advice in the applicant’s name, covering the period 1 July 2013 to 25 July 2013. This payroll advice is in the name of Avideep Pty Ltd, of 47 George Street, Windsor, New South Wales, which is an address from which the respondent company operates. That payroll advice is in the applicant’s name and shows an annual salary of $37,000.00 per annum. The Australian Business Number shown on the payroll advice, is not of Avideep Pty Ltd but of the respondent, Radeshar Pty Ltd. Mr Pillay indicated that he had not seen the document before and did not know how it had been created. At a later point of time, Mr Pillay suggested that the applicant had access to a computer system of the respondent and it was possible, on that basis, that the document could have been created.
Mr Pillay was also shown a loan application to Toyota Finance in the applicant’s name. In the applicant’s personal details section, the applicant’s occupation is listed as a Manager for Radeshar Pty Ltd (the respondent) for 11 months and that the applicant had previously been employed by the Ascot Motor Inn, an establishment owned by the respondent, for a period of four years and one month. Mr Pillay denied having ever seen those documents previously.
Mr Pillay was shown a number of emails, which had been produced by the applicant, which appeared to show the he was involved in business activities with the respondent. Mr Pillay was unable to explain how those documents had been obtained by the applicant, if he was not an employee and suggested that they had been improperly obtained.
It was put to Mr Pillay, by Counsel for the applicant, that he was not telling the truth and that the conversation alleged by the applicant, was in fact true. It was put to Mr Pillay that he was dependent upon the applicant to assist him in obtaining approval for numerous employees of the respondent’s companies to come to Australia and work as trainees, while undertaking vocational and educational training courses, arranged by the applicant. Mr Pillay denied this.
Mr Pillay agreed that he gave the applicant a place to live, gave him a place to work and assisted him to gain an income, by processing paperwork in relation to his employees on migration matters. Mr Pillay also agreed that he paid the applicant’s return airfare to India and once the applicant arrived in India, cancelled the return portion of the ticket.
In oral submissions, Counsel for the respondent submitted that the application before the Court was misconceived, in that no contract of employment existed and no rights or duties were established under the Fair Work Act 2009 (Cth), such as to ground jurisdiction in this Court. It was further submitted, that even if there was a contract, there was no evidence before the Court as to the precise terms and conditions of the contract, by reference to award conditions, such as to bring it under the Fair Work Act (Cth) and ground the Court’s jurisdiction. It was submitted that no employment relationship existed, as the applicant had only pleaded a contractual relationship, not an employment relationship. It was submitted that if the applicant was included within emails, this did not provide sufficient evidence to the Court and cannot be satisfied that an employment relationship existed, particularly in circumstances where Mr Pillay, as a Director of the respondent, denied such a relationship existed.
Counsel for the respondent relied upon Waras v Tagteam Australia Pty Ltd (2016) 312 FLR 206, to support his submission that, as there was no right or duty which arose under the Fair Work Act 2009 (Cth), there is no jurisdiction for the Court to make any orders in this matter.
Consideration
Both the applicant and Mr Pillay, were wholly unimpressive witnesses. The applicant was frequently unresponsive and on occasion, answered questions with questions of his own. The applicant’s demeanour in the witness box was such that it was clear he held Mr Pillay in contempt and on one occasion, referred to him as a “crook”. In the applicant’s own admission, as a deregistered Migration Agent, he performed migration work which, as he claimed, was on behalf of employers, which did not require him to be registered. The loan application that the applicant produced in his own evidence, contained clearly false particulars regarding his employment history with the Ascot Motor Inn, an establishment owned by a company controlled by Mr Pillay.
Mr Pillay was similarly unresponsive in many of his answers during cross-examination and provided explanations as to why it would be, that the applicant would have been included in many emails and documents, as part of the business affairs of the respondent’s company, which strained credibility. Mr Pillay’s suggestion that as a successful businessman, he took pity on the applicant and provided him with a roof over his head and a place for him to conduct his business, without any gain on his part, is wholly unbelievable. On Mr Pillay’s own admission, he was aware that the applicant was working as an unregistered Migration Agent, providing assistance and advice to employees of his company, in relation to their work visas. The Court does not accept that there was not some sort of “arrangement” between Mr Pillay and the applicant that was considered to be to their mutual benefit.
The attitude of Mr Pillay towards the applicant can be best summed up, by his admission, that he paid for a return airline ticket for the applicant to India and then cancelled the return portion of the ticket, once the applicant was in India, so as to be rid of him. It does him no credit whatsoever and indicates a person who will take actions that suits his own needs, to the detriment of others. This action left the applicant stranded in India for some time. The Court does not accept that Mr Pillay allowed the applicant to reside in his premises at Quakers Hill, while the applicant collected rent from other tenants, whilst not paying any rent to Mr Pillay. The Court does not accept that Mr Pillay allowed the applicant to work from his premises without there being some sort of return to Mr Pillay.
Having found there was an ‘arrangement’ between the parties, the Court then needs to consider what that arrangement was. The applicant has no documentary evidence which can of itself, sustain that there was an employment contract between the applicant and the respondent. At best, the applicant relies on the oral assertion, denied by Mr Pillay, of the offer of employment for the wages specified. While there is a significant amount of documentation which would support a finding that the applicant was involved and assisted by the respondent’s business, the Court is unable to find, to the requisite degree, that an employment relationship existed. It is simply the applicant’s word against that of Mr Pillay. Both Mr Pillay and the applicant are, in the Court’s view, unreliable witnesses and the Court is simply unable to prefer the evidence of one over the other.
Furthermore, the Court agrees with the respondent’s submissions, that there has been no material provided to the Court which would indicate that the applicant, even if some sort of employment relationship existed, that that relationship was covered by an award and so engaged the provisions of the Fair Wok Act 2009 (Cth) (“the Act”) and thus, engage the jurisdiction of the Court. If any relationship existed, it was more in the nature of a contractual relationship, rather than an employment relationship.
The Court is satisfied that the decision of Burchardt J in Mathieson, is not applicable in the present case. In that case, an employment relationship was found to exist and that the applicant was an employee and entitled to the award conditions she claimed.
In this present case, the Court is not satisfied that the applicant was an employee. The Court is satisfied that, if anything, the applicant undertook certain activities for the respondent, as an individual, in return for possibly free rent, a place to work and a capacity to undertake migration advice activities, in his own right for direct payment, notwithstanding the fact that he was an unregistered Migration Agent.
As there is no employment relationship, the quantum merit principles relied upon in Mathieson are not applicable
Conclusion
In these circumstances, the application is dismissed. Costs must flow as a result to the respondent.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 15 September 2020
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