Thakur v Immersive Group Pty Ltd

[2019] FCCA 2420

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAKUR v IMMERSIVE GROUP PTY LTD [2019] FCCA 2420

Catchwords:
INDUSTRIAL LAW – Small claims – applicant claims underpayment of wages and accrued leave under Restaurant Industry Award 2010.

Legislation:

Fair Work Act 2009 (Cth), s.45

Restaurant Industry Award 2010

Applicant: PARMAL SINGH THAKUR

Respondent: IMMERSIVE GROUP PTY LTD

File Number: MLG 975 of 2019

Judgment of: Judge Mercuri

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Melbourne

Delivered on: 14 August 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. Within 21 days, the respondent pay to the applicant:

   (a)the sum of $4,784.62 in respect of outstanding wages; and

   (b)the sum of $7,674.76 in respect of accrued but untaken annual leave on termination.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 975 of 2019

PARMAL SINGH THAKUR

Applicant

And

IMMERSIVE GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The applicant commenced these proceedings in this court’s small claims jurisdiction, seeking the payment of unpaid wages and unpaid annual leave on termination. In the course of the hearing, the respondent conceded that it owed the applicant the sum of $4,784.62 in respect of unpaid wages, but disputed the sum claimed for unpaid annual leave on termination. The applicant claimed that at termination, he had accrued 216.65 hours of annual leave, which amounted to an entitlement of $7,674.70. The respondent asserted that it only owed the applicant $2,676.69 for accrued but untaken leave; that is, 75.57 hours at the hourly rate of $35.42. The respondent did not file any responding material.

3. When the matter was called on for hearing on Monday 12 August 2019, Mr Isherwood appeared for the respondent and indicated that the respondent wished to proceed with the hearing.  Mr Isherwood stated that he is one of the directors of the respondent.  Both the applicant and Mr Isherwood gave evidence in these proceedings.

4. The applicant’s evidence was that he commenced employment with the respondent on 28 October 2017 on a full-time basis working 76 hours per fortnight at an annual salary of $70,000. The applicant produced payslips which are consistent with that arrangement, which specify that he was entitled to an hourly rate of pay of $35.42, and was required to work ordinary hours of 76 hours per fortnight. The applicant gave evidence that if he worked in addition to these hours, he would be provided with time off in lieu. For example, if he was required to work at a private function on either a Monday or a Tuesday, then this would be in addition to his ordinary hours of work, and the time off in lieu would be added to his annual leave entitlement.

5. Mr Isherwood did not take issue with this in principle, and agreed that if the applicant worked in excess of his standard fortnightly hours, he would be entitled to time off in lieu. However, Mr Isherwood’s evidence was that the applicant’s calculation of his annual leave entitlements was incorrect. Mr Isherwood acknowledged that the applicant’s payslip for the last two weeks in December 2018 showed an annual leave balance of 353.49 hours. However, he said that this was due to an error in the system which added additional annual leave hours to the applicant’s actual accrued annual leave entitlement.

6. There was also a dispute as to whether the applicant took annual leave from 17 December to 27 December 2018. Exhibit A indicates that he did. However, the applicant vehemently denies that he took that leave, and said that as the chef, he was responsible for work undertaken in a busy period in the lead-up to Christmas. I note that the payslip which the applicant annexed to his affidavit sworn 10 July 2019 indicates that he was paid for 76 ordinary hours of work for that pay period and does not record any annual leave having been taken. Moreover, the applicant produced screenshots of his timesheets for the period from Wednesday 12 December 2018 to Tuesday 25 December 2018, which indicate that over the period from 17 December to 30 December, the applicant worked a total of 59 hours. In that period, he took the balance of his fortnightly hours, namely 17 hours, as annual leave.

7. Mr Isherwood also gave evidence. His evidence was that the applicant was employed on a full-time basis and there was no dispute as to the period of the applicant’s employment of approximately 16 months. Mr Isherwood said that the applicant initially worked between 38 and 40 hours over 4 days a week until about November 2018. He said that the applicant then commenced working between 38 and 40 hours per week over 5 days per week.

8. Mr Isherwood said that the applicant took multiple annual leave periods throughout the 16 month period of his employment. He said that whilst the applicant was on leave in India over the Christmas period in late 2018 to early 2019, the applicant contacted Mr Isherwood to explain that plane tickets were expensive in India and requested an additional week of annual leave. He said that request was declined, and that the applicant was told he needed to return to work as he had already been on leave for 3 weeks. When he returned after this leave, the applicant provided Mr Isherwood with a sick leave certificate, which the respondent did not accept, and the respondent disputed that the applicant had, in fact, been sick whilst overseas. The applicant then resigned a week later on 9 February, but continued to work through his notice period, finishing up towards the end of February 2019.

9. The respondent concedes that it did not keep any actual records of the hours worked by the applicant until November 2018. The respondent’s position is, however, that the total amount of leave for the entire period of the applicant’s employment was 169 hours, plus a further period of leave accrued as time in lieu of 50 hours. This totals 219 hours of leave over the total period of his employment. According to the respondent, when taking into account the leave of 152 hours actually taken by the applicant, this resulted in a period of accrued but untaken leave of 67 hours.

10. Mr Isherwood also gave evidence that the applicant was given additional leave from 17 December to 30 December.  As stated, on Mr Isherwood’s calculations, the applicant only had 67 hours of annual leave accrued at the time of his departure from the respondent’s employment.  He conceded, however, that the amount calculated on the employer’s payroll system was, in fact, noted as 75.57 hours at the time of the employee’s resignation, and this is reflected in Exhibit A.  Other than providing Exhibit A, which is a printout of the summary of the applicant’s leave records at the time of his resignation, the respondent has not produced any other documents to support its assertions about Mr Thakur’s employment and hours of work.

11. As stated, Mr Isherwood accepted that Annexure A to the applicant’s affidavit was a copy of the payslips issued by the respondent, showing an annual leave accrual of 356 hours. However, he said that these were incorrect as the payroll system was not deducting the applicant’s annual leave taken from his accrual, but rather, was adding it back in. Mr Isherwood stated that it would be mathematically impossible for the applicant to have accrued 356 hours of annual leave when his statutory entitlement to annual leave for the entire period of his employment of over 1 year and 4 months was 169 hours. He said it was not possible for that to have been inflated to 356 hours, particularly when regard is had to the leave which the applicant actually took. Moreover, Mr Isherwood said that the time in lieu that the applicant had accumulated was only 50 hours over the relevant period.

12. The difficulty with this submission is that the respondent has not produced any evidence to support this proposition. The respondent conceded that the applicant was entitled to time off in lieu for time worked in excess of his 76 hours per fortnight, and the respondent also conceded that it did not record the actual hours that the applicant worked.

13. In those circumstances, and on balance, I find that the only evidence of the applicant’s actual leave balance is that contained in the payslip for the period ending 30 December 2018, at which time the applicant had accrued annual leave of 353 hours. Whilst I accept that his statutory entitlement to annual leave was for 4 weeks each year worked, it is also agreed between the parties that when the applicant worked in excess of 76 hours per fortnight, he would accrue additional time in lieu, which was to be added to his annual leave entitlement. In the absence of records of the actual hours worked, the court has to accept the only evidence before it as to what his actual accrued entitlements were, being the payslip which was issued on 30 December 2018. I am satisfied that that is a proper reflection of the applicant’s accrued entitlements as at that time, and therefore, the applicant’s calculation of his leave entitlements, in his application, is the proper basis on which the applicant is entitled to his leave accruals.

14. I turn now to consider the issue regarding the additional week taken by the applicant, from 28 January to 2 February 2019.  The applicant had an entitlement to sick leave, notified his employer that he was unwell, and provided a medical certificate indicating that he was unfit for work for the relevant period.  To the extent that there is a dispute between the applicant’s evidence and that of Mr Isherwood, with respect to this issue, I prefer the applicant’s evidence. 

15. The applicant’s evidence, which I accept, was that it was his intention to return to work on 30 January 2019. He says that he became ill whilst overseas, and submitted a medical certificate to that effect, which is annexed to his affidavit. Mr Isherwood gave evidence that he did not accept that the applicant was genuinely ill, but rather indicated he wanted to try and get cheaper flights and ask for more time before returning to Australia.

16. The respondent therefore treated this further absence as annual leave, rather than sick leave.  If the respondent had formed the view that the applicant was, in fact, not unwell, and therefore, had produced a sick leave in circumstances which were improper, one would reasonably expect that the employer would have raised this as a performance or misconduct issue and taken it up with the applicant in the appropriate manner.  Indeed, there is no evidence of any such action having been taken, and instead, the respondent simply deducted the further annual leave entitlements from the applicant’s accrued leave entitlements.  There is no proper basis for this action, and this period of leave ought to be added back to the employee’s leave accruals. 

17. The applicant was entitled to exercise his right to take accrued personal leave, and a deduction from his accrued personal leave should have been made, rather than a deduction from his annual leave entitlements. For each of these reasons, therefore, and having regard to the concession made by the employer in relation to the outstanding wages owed to the applicant, I am satisfied that the applicant has established his claim, both as to outstanding wages, and accrued annual leave on termination.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:  30 August 2019