Sabapathy v Viveganantham

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sabapathy v Viveganantham [2024] FedCFamC2G 666

File number(s): MLG 1637 of 2022
Judgment of: JUDGE MANSINI
Date of judgment: 25 July 2024
Catchwords: INDUSTRIAL LAW – FAIR WORK – application by a refugee immigrant for relief in relation to alleged contraventions of various minimum entitlements, regular payment and record-keeping obligations under the Fair Work Act 2009 (Cth) – where sole director of since deregistered company denied any employment relationship and therefore did not pay wages or keep any employment records – where the evidence established the existence of an oral and implied contract of employment – where the alleged contraventions were otherwise undefended – HELD that company contravened ss.45, 323 and 535 and respondent was involved within the meaning of s.550(2) – question of what (if any) relief to be heard separately.
Legislation:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth) ss. 3, 5, 12, 13, 14, 45, 323, 535, 545, 546, 550, 557, 793.

Fair Work Regulations 2009 (Cth) rr. 3.32, 3.33, 3.34.
Cases cited:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705

Workpac Pty Ltd v Skene [2018] FCAFC 131

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
Division: Division 2 General Federal Law
Number of paragraphs: 104
Date of last submissions: 3 April 2024
Date of hearing: 31 January 2024
Place: Melbourne
Counsel for the Applicant: Mr Merriman
The Respondent: Appearing in person

ORDERS

MLG 1637 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PRABAKARAN SABAPATHY

Applicant
AND:

SAJEEVAN VIVEGANANTHAM

Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

25 JULY 2024

THE COURT ORDERS THAT:

1.Further to the judgment in Sabapathy v Viveganantham [2024] FedCFamC2G 666, the matter be adjourned to 10.00am on 30 September 2024 for a further hearing in respect of the Applicant’s claims for compensation and pecuniary penalties pursuant to ss.545 and 546 of the Act for the Respondent’s contraventions of ss.45, 323 and 535 (by his involvement within the meaning of s.550(2)) of the Fair Work Act 2009 (Cth).

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

JUDGE MANSINI

IN SUMMARY

  1. This matter involves allegations by a refugee immigrant that the sole director of a since deregistered rubbish removal company was involved in contraventions of the fair work…

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Details
Case
[2024] FedCFamC2G 666
Decision Date

CaseChat Overview and Summary

In Sabapathy v Viveganantham, the applicant, a refugee immigrant, brought a claim against the respondent, the sole director of a deregistered rubbish removal company, for alleged contraventions of minimum entitlements, regular payment, and record-keeping obligations under the Fair Work Act 2009 (Cth). The respondent denied any employment relationship with the applicant and did not pay wages or keep any employment records. The court was required to determine whether an employment relationship existed between the parties, whether the respondent contravened the Act, and what relief, if any, should be granted. The court found that the evidence established the existence of an oral and implied contract of employment between the parties. The respondent was involved within the meaning of s.550(2) of the Act and had contravened ss.45, 323, and 535 of the Act. The question of what relief to be granted was to be heard separately.

The court considered the principles for identifying an employment or independent contractor agreement absent a written agreement. The fundamental task was to ascertain and characterise the parties' contractual rights and obligations. The court drew inferences from the parties' conduct and assessed the evidence to determine whether a meeting of minds necessary to create a contract had occurred and what obligations the parties had undertaken. The court found that the applicant was a "national system employee" as to attract the claimed entitlements to modern award coverage, modern award terms and conditions, payment, and record-keeping obligations under the Act. The respondent was found to have contravened the Act, and a program was ordered so that the parties may have further opportunity to address the court about the applicant's claims for compensation and pecuniary penalty.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For completeness, on 3 April 2024, the Respondent submitted a series of some 14 screenshots by email to chambers including bank transactions and photographs. As will be apparent from the above, by the time of the hearing on 31 January 2024, the Respondent as an unrepresented litigant from a non-English speaking background had been afforded considerable opportunity to participate in the proceedings and substantial opportunity to understand the nature of the proceedings and what was required of him. The materials of 3 April 2024 were submitted without leave of the Court, without explanation following closure of the evidentiary case and have not been received. THE EVIDENCE The following is a summary of the written and oral evidence before the Court as relevant to the claim. Recitation of uncontentious facts constitute findings I have made. About the parties The Applicant and the Respondent were respectively born in Sri Lanka and came to Australia as refugees in 2012. The Applicant was at all material times a permanent resident of Australia. He has 2 daughters. The Respondent was in the business of rubbish removal and at all material times was the sole director and sole shareholder of the company, SK Removals Pty Ltd. It was not contentious that the Respondent was responsible for the overall direction, management and supervision of SK Removals Pty Ltd and for ensuring compliance with its legal obligations under the Act. The Respondent’s evidence was that he had struggled with gambling activity and depression at times. SK Removals Pty Ltd was deregistered on 26 January 2020 but it is not disputed that, at all material times, it was:(a)A body incorporated under the provisions of the Corporations Act 2001 (Cth);(b)A “constitutional corporation” within the meaning of s.12 of the Act; and(c)An entity operating a business as SK Removals Pty Ltd in the State of Victoria, trading as “SK Removals”. The Applicant and the Respondent had lived together for 1 year in a share house in or around 2013. According to the Applicant’s evidence and the Respondent’s statement given to the workers’ compensation investigator in 2019, the pair had also lived together in another share house at the start of 2018 but the Respondent strongly disputed this second instance of shared living in his oral evidence given to the Court. With the benefit of a Tamil translation of his 2019 statement (prepared by the Applicant for purposes of these proceedings), the Respondent said in these proceedings that it was not true that they had been residing together and further that he had not been afforded an interpreter to prepare that 2019 statement so it was based on whatever English he knew at the time. In cross examination, the Respondent accepted that he had signed the 2019 statement but said VicRoads would have records to prove that he did not live with the Applicant in 2018. There was also a dispute about whether the Respondent was ever in a relationship with one of the Applicant’s daughters. The Respondent told the Court in his written statement it was the case that he had a love affair with the Applicant’s daughter Keertana in early 2018 and in oral evidence insisted that he had photographs on his phone to prove it. Previously, the Respondent had signed a statement for the workers’ compensation investigation that the Applicant had asked him to marry his daughter in Sri Lanka so she could obtain residency in Australia – when taken to this in cross examination at the hearing, the Respondent said he recalled saying this but that he did not say it with this meaning – he did not elaborate about the intended meaning and did not accept the proposition that he would give whatever explanation he feels is most favourable to him. He further elaborated in cross examination to say: it was true that he was to marry the Applicant’s daughter; he had assumed the Applicant was working for free because of that relationship; but then the Applicant made the workers’ compensation claim; and so the Respondent saw things differently.

Decision

Reasons for decision

The Respondent was afforded opportunities to engage in the questions of what, if any, relief ought be granted were the Applicant to succeed in establishing the alleged contravention(s) and barely addressed the relevant considerations. Having regard to the seriousness of the matter and in all of the circumstances, it is appropriate that the Respondent be afforded further opportunity (with the benefit of these reasons) to consider, prepare and file written evidence and submissions as to the questions of what, if any, compensation and pecuniary penalty(ies) ought be imposed for the contraventions pursuant to ss.545 and 546 of the Act. CONCLUSION For the above reasons, by his involvement within the meaning of s.550(2)) of the Act, the Respondent is found to have contravened ss.45, 323 and 535 of the Act. A program will be ordered so that the parties may have further opportunity to address the Court about the Applicant’s claims for compensation and pecuniary penalty pursuant to ss.545 and 546 of the Act.

Ratio Decidendi

Legal Principle Established

Any conduct engaged in on behalf of a body corporate, by an officer of the body within the scope of his or her actual or apparent authority, is taken for the purposes of the Act and the procedural rules to have been engaged in by the body: s.793 of the Act. CONSIDERATION Did the entitlements and obligations of the Fair Work Act apply? I am satisfied that the facts alleged in the amended statement of claim and the evidence of the Applicant and Respondent establish that SK Removals Pty Ltd was, at all relevant times, a “constitutional corporation” and a “national system employer” as defined in the Act: ss.12 and 14 of the Act. It falls then to determine whether the Applicant was a “national system employee” as to attract the claimed entitlements to modern award coverage, modern award terms and conditions, payment and record keeping obligations under the Act: s.13. The essential inquiry is whether the Applicant was employed, or usually employed, by SK Removals Pty Ltd. In the present case, there was no employment agreement, offer or acceptance of employment reduced to writing. The Court was taken to the authority in Workpac Pty Ltd v Skene [2018] FCAFC 131 (Tracey, Bromberg and Rangiah JJ) (Skene) at [180] for the proposition that, absent a written agreement: …conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed. Since Skene, the principles for identification of an employment or independent contracting agreement absent written agreement have been considered by the High Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Jamsek); helpfully summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 (Kennett J) at [8] and [9] as follows: Where there is not a written contract, the identification of the parties’ contractual rights must proceed somewhat differently but the fundamental task is the same: the parties’ contractual rights and obligations are to be ascertained and characterised. The question remains what the parties’ legal rights and obligations were, rather than how they behaved in the performance of their contract (Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183; 318 IR 216 at [29]–[33] (Goodman J)). However, that distinction obviously becomes more complicated where the contract is not written and its terms are to be inferred in whole or in part from the parties’ conduct. The terms of an oral contract may not be limited to express terms; terms may be inferred from the circumstances, including a course of dealing between the parties, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] (Kiefel CJ and Gageler J).Where there is no written contract and no evidence of a particular conversation in which a contract was formed orally, evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken (see Personnel Contracting at [177] (Gordon J, Steward J agreeing)).Assessment of the evidence