Muthu v Radeshar Pty Ltd

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

1. The application is dismissed.

2. 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

1. 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…