Weerasinghe v Prism Grafix Pty Ltd (No.2)
[2011] FMCA 675
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEERASINGHE v PRISM GRAFIX PTY LTD (No.2) | [2011] FMCA 675 |
| INDUSTRIAL LAW – Unlawful termination – recourse to competent administrative authority – whether employee terminated because of recourse to the Department of Immigration and Citizenship. |
| Federal Magistrates Act 1999 (Cth), ss.3 and 42 Federal Magistrates Court Rules 2001 (Cth), r.1.03 Migration Regulations 1994 (Cth), Schedule 2, Subclass 456 and 457 Workplace Relations Act 1996 (Cth), s.659(2)(e), 663(1), 665(1)(a) and (c) |
| Buckingham v KSN EngineeringPty Ltd & Anor (2008) 177 IR 427; [2008] FMCA 546 De La Espriella-Velasco v The Queen (2006) 197 FLR 125 [2006] WASCA 31 Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490 Weerasinghe v Prism Grafix Pty Ltd (2009) 186 IR 330; [2009] FMCA 728 |
| K Laster & VL Taylor, Interpreters and the Legal System (Sydney: Federation Press, 1994) |
| Applicant: | ANTONEY SANTHA TISSA WEERASINGHE |
| Respondent: | PRISM GRAFIX PTY LTD |
| File Number: | PEG 15 of 2009 |
| Judgment of: | Lucev FM |
| Hearing dates: | 30 June, 1 July, 19 and 20 October 2009 |
| Date of Last Submission: | 20 October 2009 |
| Delivered at: | Perth |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Ellery |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondent: | Mr S. Heathcote |
| Solicitors for the Respondent: | Downings Legal |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 15 of 2009
| ANTONEY SANTHA TISSA WEERASINGHE |
Applicant
And
| PRISM GRAFIX PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves a claim of unlawful termination of employment. The applicant, Antoney Santha Tissa Weerasinghe,[1] a Sri Lankan national, claims that the respondent, Prism Grafix Pty Ltd,[2] a print finishing business, contravened s.659(2)(e) of the Workplace Relations Act 1996 (Cth)[3] when terminating his employment. Mr Weerasinghe seeks an order:
a)imposing a penalty on Prism Grafix; and
b)for compensation for lost wages.[4]
[1] “Mr Weerasinghe”.
[2] “Prism Grafix”.
[3] “WR Act”.
[4] Pursuant to ss.663(1) and 665(1)(a) and (c) of the WR Act.
In Weerasinghe v Prism Grafix Pty Ltd[5] this Court held that Mr Weerasinghe had had recourse to a competent administrative authority by asking an officer of the Department of Immigration and Citizenship,[6] at a meeting at the premises of Prism Grafix on 27 June 2008, questions concerning his entitlement to take vacation leave and whether he could be replaced or terminated as a consequence of taking vacation leave.[7]
[5] (2009) 186 IR 330; [2009] FMCA 728 (“Prism Grafix (No. 1)”).
[6] “DIAC”.
[7] Prism Grafix (No. 1) IR at 338 per Lucev FM; FMCA at paras.37-38 per Lucev FM.
The people involved, and their credibility
A number of people were involved in this matter, and:
a)a brief description of their role and involvement; and
b)where they gave evidence, the Court’s assessment of their credibility,
is set out below.
Mr Weerasinghe is the applicant and operated various machines during his employment at Prism Grafix. He was involved in meetings held by DIAC at Prism Grafix with other employees recruited from overseas. Those employees were primarily Sri Lankan, and it appears that
Mr Weerasinghe assisted in some way with interpreting, and conveying the views of the other Sri Lankan employees, during the DIAC meetings. It was suggested by Counsel for Mr Weerasinghe that there were “difficulties” with the interpretation of Mr Weerasinghe’s evidence, but the Court, which has extensive experience with the use of interpreters in its proceedings, did not find it so. Even allowing for the usual disadvantage suffered by a person whose evidence is interpreted,[8] Mr Weerasinghe’s evidence was often convoluted, and when challenged often resulted in a qualification or change, including, occasionally, substantial changes in his answers. Furthermore, on occasions he gave evidence which was simply wrong, and sometimes wrong in relation to matters about which he did not or could not have had any first-hand knowledge. To the extent that the evidence of more reliable witnesses differed to that of Mr Weerasinghe, the evidence of those more reliable witnesses has been preferred to that of Mr Weerasinghe.
[8] See K Laster & VL Taylor, Interpreters and the Legal System (Sydney: Federation Press, 1994) pp.162-163.
Mr Sarac was Prism Grafix’ chief creative officer from February 2007 until July 2008 when he was dismissed. He was involved in product design and marketing work. This was management and not printing machine work. Unless otherwise corroborated by a witness the Court considered to be reliable, Mr Sarac’s evidence will not be preferred to that of any reliable witness. It does no unfairness to observe that
Mr Sarac came to these proceedings and gave evidence in a manner which indicated that he clearly had an anti Prism Grafix agenda, and a greatly inflated sense of his own self-importance.[9]
[9] Transcript at pp.199 and 206.
Mr Kariyawasam was, like Mr Weerasinghe, a machine operator recruited by Prism Grafix in Sri Lanka. There was some suggestion in the proceedings that Mr Kariyawasam may have complained to DIAC after he finished work at Prism Grafix. Mr Kariyawasam was not called by Mr Weerasinghe to give evidence.
Mr Brian Hennings was a monitoring officer with the investigations and monitoring branch of DIAC. He conducted meetings with overseas workers employed by Prism Grafix, and was responsible for issuing notices to Prism Grafix concerning breaches of migration sponsorship arrangements. Mr Hennings was not called by Mr Weerasinghe to give evidence.
Mr Vaswani was one of the owners of Prism Grafix, responsible for recruiting Mr Weerasinghe, and a person with some hands-on experience in the machine operations side of the print finishing business.
Mr Vaswani’s evidence was affected by his being quite diffident, and occasionally defensive in his evidence. Mr Vaswani gave his evidence to the best of his recollection, and strove to be as honest as possible, but his recollection was not always entirely accurate, and his diffidence perhaps made those inaccuracies all the more apparent. However, where there was conflict between the evidence of Mr Vaswani and Mr Weerasinghe, the Court would generally prefer the evidence of Mr Vaswani.
Mrs Vaswani was involved in marketing, administration, and interpreting and translating duties,[10] at Prism Grafix. Mrs Vaswani was a confident witness who gave her evidence in a clear and direct manner. The Court considers that she was both accurate and believable in her evidence.
[10] As to the difference between translation which relates to the written word and interpretation which related to the spoken word see De La Espriella-Velasco v The Queen (2006) 197 FLR 125 at 131 per Roberts-Smith JA; [2006] WASCA 31 at para.7 per Roberts-Smith JA.
Mr Firman was in charge of the folding and letterpress division at Prism Grafix, and was later promoted to production manager. His evidence was given directly, concisely and in a manner which the Court considered to be accurate and believable. Mr Firman was also the most technically knowledgeable and qualified of the witnesses in relation to the technical aspects of machinery operation in a printing business.
Mr Firman’s evidence generally is to be preferred to that of least reliable witnesses, and in relation to technical issues his evidence is to be preferred to that of all of the other witnesses.
Mr Philip Olsen is a migration agent and business consultant who qualified in the United Kingdom as an engineer and chartered accountant. He particularly gave evidence about the process once DIAC became involved in meetings at, and investigations concerning, Prism Grafix. He also gave evidence about business consulting advice that he gave to Prism Grafix in relation to their operations. Much of Mr Olsen’s evidence was supported by contemporaneous documents which reinforced the Court’s view of his oral evidence, which was that it was generally accurate, objective and believable.
Mr Aniket Maroo was Prism Grafix’ accountant, who gave evidence of regular meetings with Prism Grafix’ management concerning financial and related issues. Mr Maroo gave uncontroversial evidence concerning the content of those meetings, and his evidence should be accepted in its entirety.
Mr Derrick Nicholas was employed by Prism Grafix as the production manager before Mr Firman. Mr Nicholas was involved in operations management at Prism Grafix, and his views as to Mr Weerasinghe’s competence were the subject of comment during the hearing.
Mr Nicholas was not called by Prism Grafix to give evidence.
Mr Anil Shah was employed by Prism Grafix in an accounting/bookkeeping capacity. An issue was raised as to his involvement in the use of employee timecards, and a meeting between DIAC and some of Prism Grafix’ employees. Mr Shah was not called to give evidence.
Facts, and some consideration of the facts
The facts of the matter are set out hereunder.
The business of Prism Grafix
The business of Prism Grafix commenced in 2004 with a staff of approximately 6 to 8 which staff had increased to approximately 15 permanent and two casual staff by 2005.[11] There was a surge in business in 2005 and 2006 and Prism Grafix’ owner Mr Vaswani became aware of immigration visas which enabled an employer to bring in employees from overseas.[12]
[11] Transcript at p.98.
[12] Transcript at p.98.
Mr Vaswani said that:
a)he was able to personally operate some of the equipment in the Prism Grafix factory, but there was some equipment he could not operate;[13]
b)at its peak there were approximately 16 or 17 staff at Prism Grafix, which he described as a small business;[14] and
c)he had hands-on expertise in the type of work the business does, “was in charge of running the business”, and would like to think that he knew what was going on.[15]
[13] Transcript at p.117.
[14] Transcript at p.117.
[15] Transcript at p.117.
Mrs Vaswani, who is married to Mr Vaswani, said that:
a)
her role at Prism Grafix involves marketing, and some administration,[16] and she was also involved in interpreting discussions, and translating official documents, for
Mr Weerasinghe, as well as for other Sri Lankans employees of Prism Grafix;[17] and
b)when recruiting Sri Lankan workers, Mr Vaswani went to Sri Lanka to interview them, and Mrs Vaswani subsequently communicated any job offer to them over the phone, speaking to them individually in Sinhalese.[18]
[16] Transcript at p.130.
[17] Transcript at p.131.
[18] Transcript at p.130.
2006 – Mr Vaswani goes to Sri Lanka and employs Mr Weerasinghe
Prior to being employed by Prism Grafix Mr Weerasinghe was employed in Sri Lanka.[19] In Sri Lanka he had worked as a cylinder machine operator, operating a finishing machine, and prior to that he worked at a packaging company operating cutting machines which were packaging machines, which was the same as operating a cylinder machine.[20]
[19] Transcript at p.10.
[20] Transcript at p.29.
Mr Vaswani went to Sri Lanka and interviewed Mr Weerasinghe.[21]
Mr Weerasinghe undertook a work trial for Mr Vaswani in Sri Lanka as part of the recruitment process. Mr Weerasinghe was selected by Mr Vaswani to be employed by Prism Grafix.[22]
[21] Transcript at p.11.
[22] Transcript at pp.99-100.
7 August 2006 – Mr Weearsinghe arrives in Australia
Mr Weerasinghe arrived in Australia on 7 August 2006 on a business (short stay) visa under subclass 456[23] of Schedule 2 of the Migration Regulations 1994 (Cth)[24] and, thereafter, received a business (long stay) working visa under subclass 457[25] of Schedule 2 of the Migration Regulations. Mr Weerasinghe was engaged on the 456 Visa because it apparently allowed swifter entry to Australia, and allowed Prism Grafix to subsequently apply for a 457 Visa for him.[26]
[23] “456 Visa”.
[24] “Migration Regulations”.
[25] “457 Visa”; Transcript at pp.11 and 31.
[26] Transcript at p.100.
Mr Weerasinghe commenced working at Prism Grafix on cylinder and cutting work on 7 August 2006, and was given instruction.[27] There were about 10 people working at Prism Grafix when he started, and another Sri Lankan worker, Mr Kankanage, came with him to Prism Grafix.
Mr Kankanage was also on a 456 Visa at that time.[28]
[27] Transcript at pp.11-12
[28] Transcript at p.12.
Mr Weerasinghe says that:
a)he did not receive any training (apart from initial instruction and demonstration) when he started because he knew the work and there was no need for training; and
b)he produced all the magnet work, creasing, folding and cutting of pamphlets and that type of material.[29]
[29] Transcript at p.13.
Mr Firman’s views of Mr Weerasinghe’s work
Mr Firman completed his printing trade apprenticeship in 1988 in the United Kingdom.[30] He was Mr Weerasinghe’s direct supervisor in charge of the folding and letterpress division, and the person who demonstrated to Mr Weerasinghe what needed to be done.[31] Mr Firman had commenced employment with Prism Grafix in late 2004 working on a cylinder machine and platen.[32] He then went to Germany in 2006 to train on machines for developing the business further into personalised diaries.[33] When he commenced at Prism Grafix the production manager was Mr Nicholas, but Mr Firman became the production manager in August 2008.[34]
[30] Transcript at p.150.
[31] Transcript at p.101.
[32] Transcript at p.151.
[33] Transcript at p.151.
[34] Transcript at p.151.
Mr Firman said that:
a)he trained Mr Weerasinghe on the platen and showed him some of the basics on the cylinder machine;[35]
b)he had to oversee a lot of Mr Weerasinghe’s work in the letterpress department as the work was taking too long, so he quite often had to assist Mr Weerasinghe;[36]
c)on the platen Mr Weerasinghe would frequently leave the pins in the way of the blades;[37]
d)on the cylinder Mr Weerasinghe would sometimes use the wrong colour;[38]
e)after already having been shown, and shown time and time again, Mr Weerasinghe would keep continuously making the same mistakes, which became frustrating;[39] and
f)he received feedback from others regarding Mr Weerasinghe’s work performance and had also discussed his concern about his performance on the letterpress “and the problem was because I was running other machinery, I had to keep coming off of my job which was interrupted, … to go and assist … [Mr Weerasinghe] which went on for months and … by then, he should have been quite competent to run it on his own”.[40]
[35] Transcript at p.151.
[36] Transcript at p.152.
[37] Transcript at p.152.
[38] Transcript at p.152.
[39] Transcript at p.152.
[40] Transcript at p.153.
Mr Vaswani received a lot of complaints from Mr Firman concerning
Mr Weerasinghe. Mr Firman repeatedly told Mr Vaswani that:
a)he had demonstrated the work to Mr Weerasinghe;
b)in spite of the demonstration, Mr Weerasinghe was damaging a lot of dies; and
c)Mr Weerasinghe took a lot longer to complete work, and he (Mr Firman) did not know what else he could do to facilitate Mr Weerasinghe’s work.[41]
[41] Transcript at p.101.
Mr Vaswani told Mr Firman to try as hard as possible to demonstrate to Mr Weerasinghe what he needed to do because there were a lot of damaged dies and a lot of irate clients at that time.[42]
[42] Transcript at p.101.
The Court accepts as accurate Mr Firman’s account of his difficulties with Mr Weerasinghe’s training and performance, and that those difficulties were also conveyed to Mr Viswani.
The October 2006 Meeting
There was a meeting concerning Mr Weerasinghe’s employment in October 2006[43] attended by Mr Weerasinghe, and Mr and Mrs Vaswani. Of the October 2006 Meeting, Mr Vaswani says:
a)he indicated to Mr Weerasinghe that he recalled a previous written warning given to Mr Weerasinghe,[44] and that because of his continuing errors, which Mr Weerasinghe acknowledged, Prism Grafix would be terminating his employment as it could not afford to have Mr Weerasinghe continue to make the same mistakes, and that the termination of employment would take effect in December 2006, just before Christmas;[45]
b)Mr Weerasinghe cried a little bit, and asked for another chance, and Mr Vaswani said “I can’t give you any more chances; you’ve really run out of them, you know. Even though we need you, we just can’t afford mistakes that you’re doing”;[46] and
c)Prism Grafix had no obligations regarding repatriation of a 457 Visa holder that it had dismissed, and that he told Mr Weerasinghe so at the October 2006 Meeting.[47]
[43] “October 2006 Meeting”.
[44] This written warning is not in evidence.
[45] Transcript at p.101.
[46] Transcript at p.102.
[47] Transcript at p.102.
Mrs Vaswani gave evidence that:
a)she attended the October 2006 Meeting in which Mr Weerasinghe was informed of Prism Grafix’ intention to terminate his employment;
b)as far as the background to the decision to terminate Mr Weerasinghe’s employment was concerned, it was based on advice from Mr Nicholas, who complained about Mr Weerasinghe’s lack of application on the machines and that “he was forever making mistakes, the simplest of mistakes”;[48] and
c)she received an email from a registered migration agent, Carol-Ann Lynch, dated 27 October 2006 regarding approval letters being sent from DIAC for two of the 457 Visa holders, including Mr Weerasinghe, and says Ms Lynch informed DIAC of Prism Grafix’ intention to terminate Mr Weerasinghe’s employment.[49]
[48] Transcript at p.131.
[49] Transcript at p.131 and Exhibit R6 (“Ms Lynch’s October 2006 Email”).
Mr Weerasinghe could not recall that there was such a meeting in October 2006.[50] The Court prefers the evidence of Mr and Mrs Vaswani, and accepts their version of the meeting and associated events.
[50] Transcript at p.33.
Mr Weerasinghe is not terminated and is trained on the laminator
Mr Weerasinghe’s employment was not terminated in December 2006.
A few days after the October 2006 Meeting another employee told Mr Vaswani he had heard about Mr Weerasinghe’s employment being terminated, and because that employee was pursuing another direction after Christmas 2006, he asked if he could train Mr Weerasinghe on the laminating machines. Mr Vaswani accepted this proposal.
Mr Weerasinghe’s work on the laminator
Mr Weerasinghe:
a)confirmed that he was trained to use the laminator towards the end of 2006;[51]
b)says it took him about three months to learn the laminating machine due to him not being fluent in English;[52] and
c)says he was not given a reason for being trained to operate the laminator and says that “because there was another person who came to operate the cylinder, I was told if I don’t learn this work I will be sent back … because I took about three months to learn the laminating machine, Mr … [Vaswani] was not happy, and got angry. That’s why he told me that I would be sent back” and that this happened prior to Christmas 2006.[53]
[51] Transcript at p.40.
[52] Transcript at p.41.
[53] Transcript at p.41.
Mr Vaswani says that:
a)he did not dismiss Mr Weerasinghe in October 2006 because… “we were desperate for people and I guess, having somebody, even at 50 percent capacity was better than having nobody.”;[54]
b)he did not recall saying to Mr Weerasinghe that he would be sent home because it took him three months to learn the laminating machine, as he did not have the power to send anybody home;[55]
c)Mr Weerasinghe was successful in learning the laminating machine “up to a … point … but even then, his errors were quite a few”;[56]
d)Mr Nicholas, who was production supervisor until August 2008, complained to Mr Vaswani several times about Mr Weerasinghe’s work saying that:
i) a matt business card had been gloss or vice versa;
ii) work was trimmed incorrectly; and
iii) sheets were not fully covered by the laminate film, so the image was not correctly covered;[57] and
e)Mr Nicholas “used to refer to Mr Weerasinghe as an air-head.”[58]
[54] Transcript at p.103
[55] Transcript at p.103.
[56] Transcript at p.102.
[57] Transcript at p.103.
[58] Transcript at p.103.
Mr Firman gave evidence that:
a)he had seen Mr Weerasinghe operate three specific machines that he had been trained on, and occasionally use the guillotine;[59]
b)he was aware of the competency of other workers on various machines;[60]
c)Mr Weerasinghe was subsequently trained on the laminator, and “I could see right from the start that … [Mr Weerasinghe] did not have the knowledge or the capability to take that training on board at all”;[61] and
d)he noticed that a co-worker had to come off what he was doing to assist Mr Weerasinghe on the laminator following two to three weeks tuition on the machine “where [Mr Weerasinghe] would choose the wrong laminate film … and if it was picked up before it had gone anywhere … we had to … rectify it. … So there were occasions where the job had actually gone to the customer and the customer rejected the job …we had to have the job reprinted at our cost and then do all the finishing side of the work as well at our costs. … and frequently you would be … 100, 200 short where [Mr Weerasinghe] hadn’t run enough.”[62]
[59] Transcript at p.155.
[60] Transcript at pp.156-158.
[61] Transcript at p.153.
[62] Transcript at p.154.
The Court finds that:
a)Mr Weerasinghe’s performance on the laminator was poor;
b)at least Mr Nicholas conveyed Mr Weerasinghe’s poor performance on the laminator to Mr Vaswani; and
c)Mr Vaswani did not threaten to send Mr Weerasinghe back to Sri Lanka, and would not have done so because he knew that he had no power to do so.
December 2006 - Mr Weerasinghe receives a first written warning
Mr Weerasinghe was given a “First Warning” by letter dated 8 December 2006.[63] The terms of the First Warning were as follows:
First Warning
Despite being given repeated instructions you are making many errors when working on jobs which is resulting in loss of time and money to the company. You have been given verbal warnings relating to this on numerous occasions.
On Wednesday 6 December 2006 due to your carelessness you damaged a business card die which will now have to be re-ruled at extra cost to the company.
This is first warning and you are expected to exercise more care and not make errors in future.
[63] Transcript at p.118; Exhibit R1 (“First Warning”).
15 January 2007 – Mr Weerasinghe authorises salary deductions
On 15 January 2007 Mr Weerasinghe authorised Prism Grafix to deduct from his salary monies for rent,[64] electricity bills, gas bills, Medibank Private Essential Visitors Health Cover, medical expenses and any other expenses paid. The deductions from salary were authorised by a standard form letter given to Mr Weerasinghe by Prism Grafix.[65]
[64] The house lived in Mr Weerasinghe (and some other foreign employees Prism Grafix) was organised by Prism Grafix. Prism Grafix paid the rent, which was deducted from the salaries of the employees’ by Prism Grafix. Transcript at pp.15 and 33.
[65] Transcript at p.16; Exhibit R22.
February 2007 – Mr Sarac starts work, and a brief outline of his employment
Mr Sarac’s evidence was that:
a)he commenced employment at Prism Grafix as Chief Creative Officer on or about 20 February 2007 and was involved in product design and marketing work, which was management work;[66]
[66] Transcript at pp.67 and 70.
b)he was on a 457 Visa and came to Australia to work at Prism Grafix;[67]
[67] Transcript at pp.67-68.
c)he shared a house with Mr Weerasinghe, and others, for a month when he first arrived in Australia;[68]
d)his working hours were from 8.00am to after 5.00pm (he was instructed not to leave before 5.00pm), and he also worked, under instruction, nights and at weekends;[69]
e)his working hours were not recorded until after one of the DIAC visits, when a punched time card system was introduced for him, and he was requested, by Mr Shah, to punch 7.6 hours, but work an extra two hours or whatever was required;[70]
f)the “factory workers” were already using time cards when the requirement for Mr Sarac to use a time card was introduced, but previously no-one in the “office” had had to use a time card;[71]
g)he discussed the recording of his working hours with Mr Hennings, and subsequently told Mr Shah that DIAC had advised him to record his hours correctly, and that soon after this his employment at Prism Grafix was terminated;[72]
h)after April-May 2008 he noticed that Mr Shah punched a number of time cards every day, but he did not know whose time cards they were, and that this practice stopped after DIAC came in;[73]
i)he was dismissed from Prism Grafix on 17 July 2008;[74]
j)at the time of his dismissal there was an outstanding debt between Prism Grafix and himself, which he had been repaying until his dismissal, which he was unable to repay whilst unemployed and which he intended to repay once he got a job;[75]
k)he subsequently commenced work with a company called Unique 8;[76] and
l)he had published products created by Prism Grafix on Unique 8’s website, which had been designed by him prior to his employment at Prism Grafix, and by people from India, Europe and other sources, and that he was aware of communications from Prism Grafix’ lawyers regarding this issue.[77]
[68] Transcript at p.68.
[69] Transcript at p.70.
[70] Transcript at p.71.
[71] Transcript at p.71.
[72] Transcript at p.71.
[73] Transcript at p.72.
[74] Transcript at p.67.
[75] Transcript at p.77.
[76] Transcript at p.77.
[77] Transcript at pp.77-78.
Mr Weerasinghe receives a second written warning
Mr Weerasinghe was given a “Second Warning” on 15 March 2007.[78] The terms of the Second Warning were as follows:
Second Warning
On 13 March 2007 you were given proper instructions on the job to laminate 3000 covers for Groove Magazine.
However on checking the progress of the job it was discovered about 300 to 400 covers were spoilt. Had the progress check not been carried out majority of the job would have been spoilt and the company would have been liable to the customer for the entire job.
This showed lack of care on your part. After the instructions were given to you it was your duty to ask for explanations if you did not understand the instructions properly.
This is second warning and you are expected to exercise more care on the jobs.
[78] Transcript at pp.103 and 118; Exhibit R2 (“Second Warning”).
Mr Weerasinghe’s view of his work performance
Mr Weerasinghe:
a)says that approximately one week after commencing work at Prism Grafix he had experienced some difficulty learning the work, and he was told that “if I don’t work properly, I could be sent home … to Sri Lanka;[79]
[79] Transcript at p.32.
b)says that he could not recall any meeting with Mr and Mrs Vaswani prior to receiving the First Warning;[80]
[80] Transcript at p.33.
c)says that he could recall a discussion with Mr and Mrs Vaswani when he asked them to “to give me another chance” being “after the warning letter was issued to me … I can’t recall any meeting before that”;[81]
[81] Transcript at pp.32-33.
d)says that after he received the First Warning he was told he would be returned to Sri Lanka but further says that “that was told to me – they only told me after the warning letter or letter of warning was given that I’ll be sent to Sri Lanka”;[82]
[82] Transcript at p.32.
e)denies making a number of mistakes on the cylinder machine and said that he had made only one mistake on the cylinder machine, and that he was given a letter of warning because one of the cutters in the cylinder machine was damaged;[83]
[83] Transcript at pp.37-38.
f)denies that he made a mistake with 20,000 book covers;[84]
[84] Transcript at p.37.
g)denies that that particular job needed to have 10,000 book covers rerun;[85]
[85] Transcript at p.38.
h)confirms that there had been two discussions regarding him being sent back to Sri Lanka;[86]
i)says that he had “only made one mistake, and Andrew [who trained Mr Weerasinghe on the laminator] didn’t want to train him properly, because Andrew wanted to stay in the job”;[87]
j)the reason why gloss laminate was applied instead of matt laminate, or vice versa, was that sometimes clients indicated the wrong box on the form, and that “some instances it was my fault. Other instances, it was the customer’s fault”;[88]
k)in relation to the allegation that that he sometimes printed the wrong quantities, says that he always printed more than what was required and “…always, more than what they requested or more than what they ordered”;[89]
l)he made mistakes because he “was working under tension” and because Mrs Vaswani “picked on him” for minor matters, often to do with his appearance or manners;[90]
m)says that he had been made aware of criticism of his work on the laminator;[91]
n)says that after asking if the product was accepted by the client and asking “Why are you issuing me a … [Second Warning]?” he was told (by Mr Nicholas on behalf of Mr Vaswani) “not to ask questions but to sign the … [Second Warning]”;[92] and
o)says that on the same day he received the Second Warning, he had written some notes (in Sinhalese) on the back of it, which translated to say that:
“The first not rejected. The 300 pages were not thrown away … everybody makes mistakes but they don’t get letters … they put all everything in the dustbin … Because of this second letter, I told the madam … I had to think twice before I do anything. I was … forced to sign and I was told that this is the last chance … I was given this letter and they got my signature by force. Hence, I wrote down this because one day I might not remember what actually happened … It is not my responsibility. It is the responsibility of the production manager. He should look into what’s happening.”[93]
[86] Transcript at p.42.
[87] Transcript at p.42.
[88] Transcript at pp.42-43.
[89] Transcript at pp.42-43.
[90] Transcript at pp.43-44.
[91] Transcript at pp.44.
[92] Transcript at pp.37-38.
[93] Transcript at p.57 and Exhibit A3.
The Court is of the view that:
a)for reasons otherwise set out above, Mr Weerasinghe was not told that he could be sent home to Sri Lanka;
b)there was a meeting in October 2006, as detailed above, a fact which is reinforced by reference in the First Warning to numerous verbal warnings, and the reference in Ms Lynch’s October 2006 Email which refers to the likelihood that Mr Weerasinghe would be “sent back to Sri Lanka”[94] before Christmas 2006;
c)Mr Weerasinghe’s note on the Second Warning contains admissions with respect to certain mistakes, that is, applying the wrong laminate, and printing the wrong quantities;
d)Mr Weerasinghe is patently incorrect about his training on the laminator being affected because Andrew wanted to stay in the job, because the evidence discloses that the only reason Mr Weerasinghe got the opportunity to be trained on the laminator was because Andrew was in fact leaving the job;
e)the hand-written explanation on the back of the Second Warning is largely self-serving and an attempt by Mr Weerasinghe to avoid responsibility for his conduct; and
f)Mr Weerasinghe’s own evidence does not establish that his signature on the Second Warning was obtained “by force”, and that assertion exaggerates the effect of his own evidence.
[94] The phrase is that of Ms Lynch and is not on the evidence attributed, or attributable, to anyone at Prism Grafix. It seems to be nothing more than a plain English explanation of what would happen to Mr Weerasinghe, at the behest of DIAC, if his 457 Visa lapsed.
Prism Grafix employs other 457 Visa workers
Mr Weerasinghe says that:
a)six months after he commenced employment another Sri Lankan was employed by Prism Grafix, then after that, about five other Sri Lankans came to work at Prism Grafix;[95]
b)all the Sri Lankan employees were on 457 Visas, organised by Prism Grafix;[96]
c)there were other employees from overseas including Mr Firman, who was from England, the production manager and others;[97]
d)because a person named Ranjit had come from Sri Lanka to work on the cylinder machine Mr Weerasinghe was put on the laminating machine, because Ranjit only knew how to work the cylinder machines;[98] and
e)Ranjit told him that he had come to work the cylinder machine and photo grading machine only.[99]
[95] Transcript at pp.12-14.
[96] Transcript at p.14.
[97] Transcript at p.14.
[98] Transcript at p.36.
[99] Transcript at p.37.
For reasons otherwise set out above the Court does not accept that Mr Weerasinghe was put on the laminating machine because of the arrival of another employee from Sri Lanka, but rather because another employee was leaving and it was thus an alternative to his employment being terminated by Prism Grafix.
Mr Vaswani said that:
a)he subsequently engaged other 457 Visa employees in June or July 2007 who were bookbinders highly skilled in operating various machines, who were to assist with a new business venture, publishing diaries;[100]
b)2007 was the peak time for Prism Grafix’ business, and that is why it ventured into the diary business; and
c)these employees were further trained on other equipment. They arrived in April 2008.[101]
[100] Transcript at p.103.
[101] Transcript at p.104.
2007 – early 2008 – working hours
Mr Weerasinghe says in 2007 and early 2008 he started working at 7.30am, but there was no finishing time, so he sometimes worked until 7.30 or 8.00pm. The five Sri Lankans generally worked together, and were not told to leave before then, so they generally stayed behind and worked until the work was finished.[102]
[102] Transcript at p.26.
March 2008 – DIAC visit
Mr Weerasinghe says that:
a)when Mr Hennings from DIAC visited Prism Grafix in March 2008 he called in all the Sri Lankan workers and spoke to them;[103]
[103] Transcript at p.16 (“March 2008 DIAC Visit”).
b)he was unaware that Mr Hennings would be visiting;[104]
c)this was the first occasion he had met Mr Hennings;[105]
d)no-one from Prism Grafix’ management was in the meeting room, but a Mr Wright was observing from nearby in another room where he could see them through the glass window;[106]
e)Mr Sarac told him that Mr Vaswani had asked Mr Sarac why Mr Weerasinghe “was on the phone for about over an hour what was he talking about”;[107]
f)he asked Mr Hennings whether management could terminate him or could take someone else in his place, if he took vacation leave;[108]
g)he spoke to Mr Hennings regarding his vacation leave because he felt that there had been a change in the attitude of Mr and Mrs Vaswani;[109]
h)he was given a card by Mr Hennings in case he experienced some problems so that he could contact Mr Hennings;
i)in the evening after the March 2008 DIAC Visit Mrs Vaswani “… called us, all of us and said that so one of you had gone to the Immigration and don’t expect any favours from us here after”;[110]
j)following the March 2008 DIAC Visit Prism Grafix insisted that the Sri Lankan employees leave work by 5.00pm each day, and there was no more Saturday or Sunday work;[111] and
k)he did not make a complaint to DIAC.[112]
[104] Transcript at p.16.
[105] Transcript at p.18.
[106] Transcript at pp.17-18.
[107] Transcript at p.20.
[108] Transcript at p.21.
[109] Transcript at p.21.
[110] Transcript at p.21.
[111] Transcript at p.18.
[112] Transcript at p.55.
Mr Weerasinghe appears to have been confused about the March 2008 DIAC Visit, and it is apparent that not only is the date incorrect, but that he has also combined various elements of later DIAC visits and meetings into the March 2008 DIAC Visit which did not in fact take place.
The role of Mr Kariyawasam
In relation to the role of Rasika Kariyawasam[113] in the March 2008 DIAC Visit Mr Weerasinghe says that:
a)Mr Kariyawasam was not present at the March 2008 DIAC Visit;
b)Mr Kariyawasam had told Mr Weerasinghe that Mrs Vaswani asked him not to turn up for work because he went to DIAC;[114]
c)he never thought that Mr Kariyawasam would be sacked, because he was a very good worker;[115]
d)he did not know when Mr Kariyawasam was asked not to come to work “but the day after what happened … [Mr Kariyawasam] went to [DIAC]”;[116]
e)he did not attend DIAC with Mr Kariyawasam or see any correspondence from Mr Kariyawasam to DIAC;[117] and
f)until Mr Kariyawasam told him, he did not know that Mr Kariyawasam had gone to DIAC.[118]
[113] “Mr Kariyawasam”.
[114] Transcript at p.34.
[115] Transcript at p.35.
[116] Transcript at p.35.
[117] Transcript at pp.35-36.
[118] Transcript at p.36.
Under cross-examination Mr Weerasinghe said that:
a)he shared a home with Mr Kariyawasam and others;[119]
b)Mr Kariyawasam was not present when DIAC first visited Prism Grafix because Mr Kariyawasam “told me that Aruni [Mrs Vaswani] asked him not to turn up for work … because he went to Immigration”;[120]
c)Mr Kariyawasam “was a good worker … I never thought that he would be sacked, because he was a very good worker”;[121]
d)he didn’t know when Mr Kariyawasam was asked not to come to work “but the day after what happened … he went to the Immigration”;[122]
e)he did not attend DIAC with Mr Kariyawasam or see any correspondence from Mr Kariyawasam to DIAC;[123] and
f)until Mr Kariyawasam told him, he did not know that Mr Kariyawasam had gone to DIAC.[124]
[119] Transcript at p.33.
[120] Transcript at p.34.
[121] Transcript at p.35.
[122] Transcript at p.35.
[123] Transcript at pp.35-36.
[124] Transcript at p.36.
The evidence of Mr Vaswani was that:
a)he was aware that DIAC required some records following the resignation of an employee, Mr Kariyawasam, who was a 457 Visa holder who left in March 2008;[125] and
b)Prism Grafix was unaware who had made the complaint to DIAC, but believed it may have been Mr Kariyawasam, because his employment had recently terminated.
[125] Transcript at p.111.
The evidence given in relation to Mr Kariyawasam is of little assistance to the Court. Most of it is hearsay, none of it is corroborated in any way, and its reliability is diminished by Mr Weerasinghe’s referring to it in the context of a DIAC visit which did not take place. Ultimately, taken at its highest, the substantive content of the evidence does not assist at all in determining whether Mr Weerasinghe was terminated by reason of recourse to DIAC, and further, at that time, there had, in any event, not been any recourse to DIAC by Mr Weerasinghe.
From March/April 2008 – Prism Grafix starts to experience a downturn
Mr Vaswani said that:
a)by March or April 2008 there was a downturn in the volume of work of at least 20 per cent when compared to the same months in 2007;[126]
b)Prism Grafix had been getting approximately 70 to 80% of its work from a business called CJ King, and:
i) CJ King started to experience a downturn in work, and Mr Vaswani knew it would affect Prism Grafix;
ii) more importantly, 30% of the downturn in work was laminating work, and CJ King decided to purchase a UV coating machine which can be a substitute for laminating; and
iii) CJ King told Mr Vaswani that it was going to reduce the amount of work going to Prism Grafix.[127]
[126] Transcript at p.104.
[127] Transcript at p.105.
Mr Firman said that Prism Grafix experienced a serious downturn in mid 2008, which made it difficult to find full-time work for the full-time employees and which also affected its requirement for casual workers.[128]
[128] Transcript at p.158.
Mr Olsen said that:
a)he was involved in advising Mr Vaswani on matters other than immigration, and in July 2008, because of his background in corporate restructuring, he was assisting him with options because of the decrease in Prism Grafix’ business turnover;
b)he had been speaking with Mr Vaswani about the economy for about 12 months prior to July 2008 and had counselled Mr Vaswani to watch Prism Grafix’ costs; and
c)he had advised Mr Vaswani to look at his profitability turnover levels, costs levels and particularly his staffing levels.[129]
[129] Transcript at p.174.
Mr Maroo’s meeting notes – July 2007 – August 2008
Mr Aniket Maroo said that he had been the accountant at Prism Grafix since about 2003. He regularly met with management, usually with Mr Vaswani, but also sometimes with Mrs Vaswani and Anil Shah, the bookkeeper. He started taking notes of these meetings around July 2007.[130]
[130] Transcript at p.139; Exhibit R7.
16 July 2007 meeting
At the 16 July 2007 meeting Mr Maroo recalled discussing general business conditions and Prism Grafix’ dependence on CJ King.[131] He observed that:
a)CJ King was the largest customer that Prism Grafix had;
b)there was some concern by Prism Grafix that sales to CJ King were actually decreasing;[132]
c)sales to CJ King for June 2007 had dropped by $40,000;
d)CJ King was now asking for quotes on every order, so the business environment was getting more competitive, and that quoting for CJ King “was probably the first indication that Mr King’s business was probably not travelling as well as it had in the past…”;
e)if Mr Vaswani’s dependence on CJ King was to decrease, Mr Vaswani needed to look at alternatives including online ordering and supplying printed material; and
f)there was discussion of areas that the business could do better in, including the cost of the gilding machine, alternative areas like diaries, and the excess space occupied by Prism Grafix.[133]
[131] Transcript at p.139.
[132] Transcript at p.140.
[133] Transcript at pp.140-141.
18 August 2007 Meeting
At the 18 August 2007 meeting his note that “Dad is coming, another person from Sri Lanka” referred to:
a)Mr Firman’s father who was coming to Australia, which would enable a second person to look after the guillotine and allow Mr Nicholas to take on a bigger management role;[134] and
b)another person coming from Sri Lanka to work at Prism Grafix.[135]
[134] Transcript at p.142.
[135] Transcript at p.142.
22 September 2007 Meeting
The meeting on 22 September 2007 referred to an action plan to win more work and look at improving processes and efficiency.[136]
[136] Transcript at p.142.
1 May 2008 Meeting
At a meeting on 1 May 2008 with Mr Vaswani the following matters were discussed:
a)the downturn from the height of the economic cycle some months earlier;
b)that business with CJ King was down, and whilst other business had been obtained the margins were lower;
c)other printers were now doing their own finishing work, and were no longer outsourcing that work to Prism Grafix;
d)advice to Mr Vaswani from Prism Grafix’ bankers that the bankers were concerned about the print industry, and would not be assisting in any future finance expansions;
e)the high level of gearing in Prism Grafix’ balance sheet; and
f)a proposal to establish a business in Dubai to supplement Prism Grafix’s income.[137]
[137] Transcript at pp.143-144.
11 June 2008 Meeting
At a meeting on 11 June 2008 with Mr Vaswani the following matters were discussed:
a)contact that Mr Vaswani had, or was going to make, with a business broker regarding possibly selling Prism Grafix;
b)that trading for the previous month (May 2008) with CJ King was 68 per cent of total turnover;
c)that the bank overdraft was in excess of $400,000, with a total facility of $500,000;[138]
[138] Transcript at p.144.
d)a time line from June 2008 to December 2008 including the following action steps:
i) trying to make sure that the business was able to continue trading properly;
ii) checking whether there should be a decrease in staff numbers;
iii) selling machines that were not being used because cash flow was becoming really tight;
iv) leasing a building, because at that time Prism Grafix was occupying two buildings and it was important to identify whether Prism Grafix could cut down on expenses by leasing out one of the buildings; and
v) an ‘absolute cut-off’ of December 2008,
and if none of the action points eventuated to help Prism Grafix stem the flow of losses that it was beginning to incur, there was a real possibility that Prism Grafix could close down by December 2008;[139]
e)Prism Grafix was showing a loss up to the end of May 2008 of $17,000;[140]
f)a valuation figure of $1,730,000 had been provided by the business broker as a proposed amount at which to market Prism Grafix for sale;[141]
g)“alternative[s]” including:
i) moving into the second building again and leasing out the first building;
ii) looking at redundancy for a couple of people;
iii) allowing Prism Grafix to be run under external management;[142] and
iv) that if a sale did not eventuate, or if other alternatives were not able to be implemented, for Prism Grafix to close down;[143] and
h)a “middle path” which were options between a sale and a complete close down, and whether Prism Grafix would need to make decisions about its business operations, staff and redundancies and, specifically, to reduce staff numbers from 12 to nine, and what the wage costs would have been.[144]
[139] Transcript at pp.144-145.
[140] Transcript at p.145.
[141] Transcript at p.145.
[142] Transcript at p.145.
[143] Transcript at p.145.
[144] Transcript at p.146.
1 August 2008 Meeting
At the meeting on 1 August 2008, with Mr Shah only, they discussed:
a)cash flow forecasts he had asked Mr Shah to prepare, including provision for redundancy costs at $5000 per employee;[145] and
b)reference was made to the overdraft, which stood at $486,000.[146]
[145] Transcript at p.146.
[146] Transcript at p.147.
8 April 2008 – Prism Grafix employs two new Sri Lankan employees
Two new Sri Lankan employees commenced with Prism Grafix on
7 April 2008. They were however employees who had been recruited in 2007.[147]
[147] See para.45(c) above.
6 May 2008 DIAC meeting
On 6 May 2008 Mr Hennings made an unannounced visit to Prism Grafix. Mr Hennings met with and spoke to the 457 Visa holders. [148]
Mr Weerasinghe acted as interpreter for his fellow Sri Lankan employees. Mr Weerasinghe says that he did not initiate, or raise any issues at, the 6 May 2008 DIAC Meeting.
[148] “6 May 2008 DIAC Meeting”.
Mr Weerasinghe says that at the 6 May 2008 DIAC Meeting, attended by the two people from DIAC (Mr Hennings and a female) Mr Hennings asked six of Prism Grafix’ Sri Lankan employees whether:
a)they were paid overtime;
b)how many hours they worked;
c)how many days they worked in the week; and
d)how many hours they worked in a week,
and that he provided the answers.[149]
[149] Transcript at pp.45-46.
At the meeting a number of matters which were of concern to the 457 Visa holders employed by Prism Grafix were discussed. They included alleged:
a)failure to pay the required minimum salary level;
b)failure to pay overtime;
c)failure to pay sick leave;
d)refusal to allow annual leave;
e)unauthorised deductions from wages; and
f)confiscation of passports.[150]
[150] Transcript at p.17.
Mr Vaswani was informed by Mr Shah of the 6 May 2008 DIAC Meeting, but Mr Vaswani did not see or meet Mr Hennings.[151]
[151] Transcript at p.120.
12 May 2008 – Visa holders’ meeting
Mr Weerasinghe says that at a meeting with Mr Olsen on 12 May 2008,[152] Mr Olsen:
a)asked him whether he knew where Mr Kariyawasam, who had left Prism Grafix by that time, lived; and
b)“said that because he’s the person who has sponsored them on that 457 visa, anytime he can send them back”.[153]
[152] “12 May 2008 Meeting”.
[153] Transcript at pp.46-47.
The evidence of Mr Vaswani was that:
a)he had not had any direct dealings with Mr Hennings or DIAC, but was aware of the nature of Mr Hennings’ inquiries as he was told about them by Mr Shah and Mr Olsen;
b)
the inquiries by DIAC were managed by Mr Olsen and
Mr Shah;[154]
[154] Transcript at p.111.
c)up until May 2008 the practice had been to make deductions for items such as rent, electricity and Medibank, and transfer the amounts to the relevant authorities on behalf of the workers;[155]
d)although Prism Grafix had authorisation from the employees to make those payments, DIAC said that their pay was first to be paid in full into their account and the employees had to pay the accounts, and if they wanted Prism Grafix to pay the accounts, then they would need to pay that money back to Prism Grafix to attend to;[156]
e)the 12 May 2008 Meeting was with the 457 Visa holders, to explain to them about the DIAC visit and that the practices such as deducting rent and paying it on their behalf to the agent was to cease, and that they would need to attend to that directly themselves;[157]
f)he denies that he said Prism Grafix could send the Visa holders home;[158]
g)Mr Olsen does not speak Sinhalese and whatever he said he would have been said in English.[159]
h)Mr Weerasinghe speaks “a bit of English”;
i)he did not know if Mr Weerasinghe read any English and had not personally witnessed him write English;[160]
j)he asked Mrs Vaswani to regularly interpret in Sinhalese during discussions with Mr Weerasinghe and other Sri Lankan employees “to facilitate the understanding further”;[161] and
k)Mr Olsen acted on his instructions, and would not be making any statements to DIAC without his authorisation.[162]
[155] Transcript at pp.111 and 118.
[156] Transcript at p.112.
[157] Transcript at pp.111 and 118.
[158] Transcript at pp.113 and 195.
[159] Transcript at p.122.
[160] Transcript at p.118.
[161] Transcript at p.118.
[162] Transcript at p.119.
Mrs Vaswani’s evidence was that:
a)she attended the 12 May 2008 Meeting;[163]
[163] Transcript at pp.131-132 and 135.
b)her role at the 12 May 2008 Meeting was to interpret in Sinhalese what Mr Olsen said, and that neither Mr Vaswani nor Mr Shah spoke during the meeting;[164]
[164] Transcript at pp.132 and 135.
c)the gist of the 12 May 208 Meeting was that Mr Olsen said that Prism Grafix was “no longer allowed to help them [the 457 Visa holders] out by paying their bills”;[165]
[165] Transcript at p.132, and see also p.135 – “we were not able to pay their bills on their behalf”.
d)she did not tell the 457 Visa holders that:
i) they would have to work faster to get their work done during normal working hours;
ii) because Mr Kariyawasam had complained to DIAC, that Prism Grafix would make sure that he could not work anywhere else in Australia;[166] and
[166] Transcript at p.132.
iii) because one of them had gone to DIAC, they should not expect any favours from Prism Grafix;[167]
[167] Transcript at pp.132-133 and 135.
iv) denies saying anything to the effect that Prism Grafix could send the 457 Visa holders back to Sri Lanka;
and that she “merely translated [interpreted] what Mr Olsen had to say”, and that he did not say anything to the above effect;
e)it was the practice prior to the 12 May 2008 Meeting to deduct rent, health insurance, and power or electricity bills from the salary of the 457 Visa holders, which were then paid on their behalf,[168] and after the 12 May 2008 Meeting that practice changed;
f)in relation to passports:
i) it was Prism Grafix’ practice to hold onto the passports of the Sri Lankan 457 Visa holders “for safekeeping”, but that that practice changed before the 12 May 2008 Meeting;[169]
ii) the circumstances in which Prism Grafix held onto the passports was that the Sri Lankan 457 Visa holders had previously worked in Middle Eastern countries where it was the practice to give their passports to their employers for safekeeping, and that is “what they wanted us to do. They wanted us to keep the passport; we did not ask them that – for their passports”;[170] and
iii) she denied that the practice changed because of concerns from DIAC,[171] and said that the practice ceased after Mr Kariyawasam left employment because Mr Kariyawasam had made allegations that Prism Grafix was holding his passport against his wishes, when that was not the case;[172]
g)the passports were kept in a safe in the office, and if the employees needed their passport they came and requested it;[173] and
h)following the 6 May DIAC Meeting, denied that her personal demeanour and tone of communication to the Sri Lankan 457 Visa holders including Mr Weerasinghe, became hostile or aggressive, and said “I had nothing to do with them. I was not on the production floor. I was half the time in the eastern states because of my job. It did not change. There was nothing to change.”[174] That evidence is consistent with her evidence about her marketing role.
[168] Transcript at pp.135-136.
[169] Transcript at p.136.
[170] Transcript at p.137.
[171] Transcript at p.136.
[172] Transcript at p.136.
[173] Transcript at p.136. See also Mr Sarac at Transcript at p.76 to the effect that he was present on two occasions when passports were returned to employees upon request.
[174] Transcript at p.136.
The evidence of Mr Olsen is that:
a)he was aware that DIAC had visited Prism Grafix in May 2008 to do a monitoring review because Mr Vaswani had contacted him to obtain some advice;[175]
[175] Transcript at p.164.
b)during the time he acted as a migration agent for Prism Grafix it was with its authority, and any communication he had with DIAC was in accordance with instructions from Prism Grafix;[176]
[176] Transcript at p.175.
c)at the 12 May 2008 Meeting he spoke in English to Mrs Vaswani and she interpreted what he said in Sinhalese;[177]
[177] Transcript at pp.165 and 166.
d)he does not speak Sinhalese and was therefore unsure whether what he said to the workers was interpreted correctly,[178] but that Mrs Vaswani had indicated to him that she had interpreted in Sinhalese what he had said to the 457 Visa holders;[179]
[178] Transcript at p.176.
[179] Transcript at p.166.
e)he confirmed that he would not actually know what Mrs Vaswani said to the 457 Visa holders in Sinhalese;[180]
[180] Transcript at p.176
f)some of the issues raised by DIAC were to ensure that the 457 Visa holders understood what was being communicated, and that the deductions from their wages, which had previously been signed off by DIAC as part of their annual monitoring 12 months previously, were now to be stopped;[181]
g)because DIAC had now raised these issues Prism Grafix wanted to conform with the requirements of DIAC by stopping the previous arrangements and advising the 457 Visa holders to make their own arrangements;[182]
h)he did not say in English words to the effect that the employees would have to work faster to get their work done during normal working hours;[183]
i)he denied saying:
i) that because Mr Kariyawasam had complained to DIAC “Prism [Grafix] would make sure … [Mr Kariyawasam] couldn’t work anywhere else in Australia”; or
ii) that because one of the Sri Lankan workers had gone to DIAC that they should not expect any favours from Prism Grafix;[184]
j)he said that “there had been a number of … records for the Department … and had been a number of ex gratia payments where I am aware … that the company had flown people home for holidays and stuff like that, and the company wasn’t prepared to do that anymore because they had to act in accordance with … direct instructions, so they didn’t want to be caught out at all … I did say that” and “ … the Department … undertakes monitoring, and if the company … contravenes the law, it could lose its sponsorship, which means that the employees may have to find other jobs, or they may have to go home. If they don’t have a visa, they can’t stay in this country, it’s a point of law”;[185]
k)he told the 457 Visa holders that Prism Grafix “had to act in accordance with the immigration laws” and that certain deductions from their salary would have to stop;[186]
l)he denied that Mrs Vaswani had said to the 457 Visa holders at the 12 May 2008 Meeting words to the effect “Don’t expect any favours from us from now on” because in his recollection “that is contrary to the intent of the meeting”, but it was possible she did say words to that effect;[187] and
m)following the 12 May 2008 Meeting he was in contact with DIAC by email and telephone because there was an active investigation by DIAC at that time.[188]
[181] Transcript at p.166.
[182] Transcript at p.166.
[183] Transcript at p.166.
[184] Transcript at p.167.
[185] Transcript at p.167.
[186] Transcript at pp.175-176.
[187] Transcript at pp.176-177.
[188] Transcript at pp.164-165, 177, Exhibit R8.
On the basis of the evidence, and particularly that of Mr Olsen and
Mrs Vaswani, the Court finds that:
a)following the 6 May 2008 DIAC Meeting the practice of holding the Sri Lankan 457 Visa holders’ passports for safekeeping changed, not because of concerns expressed by DIAC but as a consequence of Prism Grafix’ consideration of allegations made by Mr Kariyawasam;
b)Mrs Vaswani’s demeanour and communication with the Sri Lankan 457 Visa holders, including Mr Weerasinghe, did not change following the 6 May 2008 DIAC Meeting; and
c)at the 12 May 2008 Meeting:
i) the 457 Visa holders were told that the various deductions previously made from their salaries would no longer be made from their salary;
ii) there was no statement concerning Mr Kariyawasam complaining to DIAC, or in relation to ensuring that he could not work anywhere else in Australia, made by Mrs Vaswani or Mr Olsen; and
iii) there was no statement that the 457 Visa holders should not expect any favours from Prism Grafix because one of them had gone to DIAC, by either Mrs Vaswani or Mr Olsen.
The Court accepts the evidence of Mr Olsen that what was in fact said was that Prism Grafix was changing arrangements to ensure that it did not contravene migration regulations concerning its sponsorship arrangements, because it could otherwise lose its sponsorship, and in the event that it lost its sponsorship, sponsored employees (those on 457 Visas) “may have to go home”.[189] There was no statement or threat by Prism Grafix to the effect that the 457 Visa holders would be sent “home”. It is easy to see how the statement that the Court finds was made might have been misunderstood.
[189] Transcript at p.167 (emphasis added).
Mr Olsen’s concession that it was possible that Mrs Vaswani told the 457 Visa holders that they should not expect any favours from Prism Grafix from now on was a concession properly made: Mr Olsen could not know what it was that Mrs Vaswani actually said in Sinhalese to the 457 Visa holders. However, the Court accepts Mrs Vaswani’s evidence that she did not tell the 457 Visa holders that they could not expect any favours from Prism Grafix from now on. Further, even if such a statement was made, it has to be considered in its proper context. That context is explained by Mr Olsen in relation to various preferments afforded to the 457 Visa holders by Prism Grafix, such as flying the 457 Visa holders home to Sri Lanka for holidays. The “favours” referred to were not related to employee entitlements or the termination of employment, and the Court finds that even if, contrary to its finding above, such a statement was made by Mrs Vaswani, it was not a statement relevant in any way to Mr Weerasinghe’s termination of employment more than three months later.
13 May 2008 - Prism Grafix provided documents to DIAC
On 13 May 2008, Mr Olsen provided the requested documents to DIAC.[190]
[190] Transcript at p.120.
20 May 2008 - Prism Grafix receives a breach notice
On 20 May 2008 DIAC issued a Breach Notice to Prism Grafix raising issues about the deductions from wages of 457 Visa holders bringing payments below the required Minimum Salary Level, as well as withholding of two weeks’ pay from Mr Kariyawasam in lieu of notice, thereby bringing his payment below the required Minimum Salary Level.[191]
[191] Transcript at p.165; Exhibit R9 (“20 May 2008 Breach Notice”).
Mr Vaswani was informed by Mr Olsen that the 20 May 2008 Breach Notice had been issued.[192] Mr Olsen subsequently:
a)sent an email to Mr Shah on 21 May 2008 setting out how Prism Grafix should conform with immigration rules based on information from DIAC;[193] and
b)sent an email to Mr Shah on 22 May 2008 to rectify a breach that was issued in relation to deductions for the 457 Visa holders.[194]
[192] Transcript at p.120.
[193] Exhibit R10.
[194] Exhibit R11.
22 May 2008 – DIAC visit
On 22 May 2008 there was a further visit by DIAC to Prism Grafix[195] to explain to the 457 Visa holders that:
a)deductions would no longer be made from their wages, which would be paid in full; and
b)they would have to pay their own expenses directly.[196]
[195] “22 May 2008 DIAC Visit”.
[196] Transcript at pp.47-49 and 168-169.
Consequently, Mr Weerasinghe signed a form to stop deductions being made from his salary.
28 May 2008 - Prism Grafix responds to 20 May 2008 Breach Notice
Mr Olsen wrote a letter (from IMigrate Australia) to DIAC on 27 May 2008[197] notifying DIAC that Prism Grafix had taken steps to rectify the matters the subject of the 20 May 2008 Breach Notice, and provided information confirming that.[198] Subsequently, after returning from Germany, Mr Vaswini was informed that Mr Olsen had responded to the 20 May 2008 Breach Notice.[199]
[197] Transcript at p.170; Exhibit R 12.
[198] Transcript at p.170.
[199] Transcript at p.120.
27 June 2008 – DIAC Meeting
On 27 June 2008 there was a further meeting at Prism Grafix between Mr Hennings of DIAC and a number of the 457 Visa holders.[200]
The 27 June 2008 DIAC Meeting lasted for somewhere between two and three hours.[201] Mr Weerasinghe was one of a number of Sri Lankan employees (probably five) at the 27 June 2008 DIAC Meeting, where Mr Weerasinghe spoke on behalf of all the employees in Sinhalese to an interpreter on the telephone, who then interpreted into English for Mr Hennings.[202]
[200] Transcript at p.49.
[201] Transcript at pp.20 and 50.
[202] Transcript at p.19.
Mr Weerasinghe gave evidence that at the 27 June 2008 DIAC Meeting he:
a)did ask, on behalf of two other Sri Lankan employees, what would happen if they (the other two Sri Lankan employees) were terminated;[203]
b)asked Mr Hennings whether, if he took vacation leave, he could be terminated or if someone else could “take … my place”; [204]
c)Mr Hennings told him that he could apply for vacation leave, and gave him his business card and told him to contact him in the future;[205] and
d)from where he was standing he could see Mr Vaswani observing 27 June 2008 DIAC Meeting from Mr Viswani’s room;[206]
[203] Transcript at pp.19 and 49.
[204] Transcript at p.21.
[205] Transcript at p.55.
[206] Transcript at p.49-50.
Mr Weerasinghe said that the reason he asked Mr Hennings about vacation leave:
“…because the situation had changed from since the first meeting and I was always under pressure and I felt that the management was pressurising us too much and that due to the management was not that favourable to me.”[207]
[207] Transcript at p.21.
Mr Weerasinghe also said that:
a)in relation to the 457 Visa holders approximately one month after the 27 June 2008 DIAC Meeting Mr Nicholas:
i) started pressuring them;
ii) told them there will be no overtime;
iii) told them this work has to be done;
iv) told them that once they finish the work they can go; and
v) told them that they had to finish this work as early as possible;[208] and
b)after the 27 June 2008 DIAC Meeting he found the environment at Prism Grafix unfavourable in that “they were not as friendly as before in their relations with the five Sri Lankan workers … their attitudes have changed. They were not friendly as before”.[209]
[208] Transcript at p.50-51.
[209] Transcript at p.52.
Mr Sarac’s evidence was that:
a)during the 27 June 2008 DIAC Meeting he could see into Mr Vaswani’s office;[210] and
b)Mr Olsen arrived shortly after DIAC had arrived for the 27 June 2008 DIAC Meeting.[211]
[210] Transcript at p.78.
[211] Transcript at p.75.
The evidence of Mr Vaswani was that:
a)after Mr Shah came to his office to inform him that Mr Hennings wanted to meet with the 457 Visa holders he “called Mr Olsen to come in and meet up with Mr Hennings to see what other concerns they had”;[212]
b)he did not call Mr Olsen because of an urgent concern about Mr Hennings’ visit;[213]
c)he was unable to see anything of the 27 June 2008 DIAC Meeting in Mr Shah’s office from his office, and denied that he saw anything of the meeting;[214]
d)the 27 June 2008 DIAC Meeting went for approximately two and a half hours;[215]
e)after the 27 June 2008 DIAC Meeting he asked Mr Shah and Mr Olsen what Mr Hennings’ concerns were and was told that the workers had an unresolved issue with Mr Firman, who they said was “too vocal at times and they couldn’t understand him, and subsequently, I did bring him in and speak to him and he voiced his concerns that he couldn’t understand them either…”[216]
f)he was unaware whether Mr Weerasinghe had spoken to Mr Hennings, and did not know that Mr Hennings had given Mr Weerasinghe his business card;[217]
g)the attitude to the 457 Visa holders did not change as a result of the 27 June 2008 DIAC Meeting;[218]
h)the availability of overtime declined in 2008, because of the downturn in volume of work; apart from overtime required if any urgent orders were received and “Effectively, there was no work for anybody to stay back and do”;[219]
i)by the time of the 27 June 2008 DIAC Meeting the 20 May 2008 Breach Notice regarding deductions from wages,[220] and the withholding of two weeks pay to Mr Kariyawasam, had already been issued by DIAC.[221]
[212] Transcript at p.123.
[213] Transcript at p.123.
[214] Transcript at pp.114 and 124-125.
[215] Transcript at p.115.
[216] Transcript at p.115.
[217] Transcript at p.115.
[218] Transcript at pp.115 and 126.
[219] Transcript at pp.115 and 126.
[220] Transcript at p.124.
[221] Transcript at p.123.
Mrs Vaswani said that:
a)after 27 June 2008 nothing changed at Prism Grafix except “the business was going down”;[222] and
b)denied that she withdrew translation services to the Sri Lankan employees and says that “There was nothing to translate. … and no one came up to me to ask for any translation.”[223]
[222] Transcript at p.134.
[223] Transcript at p.134. In context this probably means both translation and interpretation services: see fn.10 above.
Mr Olsen said that:
a)
he was involved in a further meeting at Prism Grafix on
27 June 2008, after receiving a call from Mr Vaswani asking him to come to Prism Grafix because DIAC “had … made a spot visit and they had called the 457 visa holders together and he wanted me to come out and just advise him what really was going on”;[224]
[224] Transcript at p.170, and see also pp. 177-178.
b)on 27 June 2008 while at his office at his home in Woodlands, he received a phone call from Mr Vaswani asking him to “come out if you can to help me and advise me” straight away because DIAC was there, and that he had arrived at Prism Grafix within approximately 20 minutes;[225]
c)when he arrived at Prism Grafix he stayed in Mr Vaswani’s office for one hour and thirty five minutes;[226]
d)while in Mr Vaswani’s office he could see into the room where the 457 Visa holders, Mr Hennings and his assistant were meeting;[227]
e)in clarifying with a mud map[228] how he could see part of the office in which the 27 June 2008 DIAC Meeting was held, he said “So I can see diagonally across into their office and what I could see from that view is Brian Hennings and his assistant and maybe a little bit of Anil. The 457 visa holders were on the wall abutting the boardroom, I couldn’t see them … I could see, maybe, a shoulder of someone, you know, I knew they were in there. You can’t see them anywhere else … and when I walked past to go to the toilet I could see they were all lined up there … So that’s where I say, I could see part of the office”;[229]
f)he did not know that Mr Weerasinghe was on the phone in the 27 June 2008 DIAC Meeting;[230]
g)he was not in the room during the 27 June 2008 DIAC Meeting with the 457 Visa holders and therefore did not hear the discussions Mr Hennings had with the 457 Visa holders;[231]
h)he subsequently met with Mr Hennings who outlined concerns of the 457 Visa holders including harassment claims, claims of items not being translated, and Mr Hennings said that he had an interpreter on his mobile phone during the 27 June 2008 DIAC Meeting;[232]
i)following the 27 June 2008 DIAC Meeting the 457 Visa holders left, and he met with Mr Hennings and his assistant when he asked Mr Hennings what had been discussed;[233]
j)Mr Shah who is the accountant for Prism Grafix was also in the room with him but did not ask Mr Hennings who was on the phone whilst Mr Olsen was there;[234] and
k)Mr Olsen later spoke with Mr Vaswani and told him that Mr Hennings had used a telephone interpreter.[235]
[225] Transcript at pp.177-178.
[226] Transcript at p.178.
[227] Transcript at pp.178, 179 and 180.
[228] Exhibit R16.
[229] Transcript at p.184.
[230] Transcript at p.179.
[231] Transcript at p.179.
[232] Transcript at pp.178 and 180.
[233] Transcript at p.180.
[234] Transcript at pp.180-181.
[235] Transcript at p.181.
There is no reason to doubt Mr Weerasinghe’s account of what he said he said to Mr Hennings in the 27 June 2008 DIAC Meeting. However, what he has said and interpreted as pressure from Prism Grafix’ management merely appears to the Court to be little more than an endeavour by Prism Grafix to comply with DIAC’s requirements with respect to working hours arrangements.
The Court finds that Mr Vaswani did ring Mr Olsen and request that he attend at Prism Grafix to assist Prism Grafix to deal with the unannounced visit by DIAC on 27 June 2008. The Court does not accept that there was undue urgency or panic in that request, or that any adverse inference should be drawn from the request. Just as in other areas where the law impacts upon persons and corporations in a particular way (and examples are too many to set out here, but crime, corporations investigations, occupational health and safety investigations, and investigations into alleged breaches of industrial instruments immediately spring to mind). A person affected is entitled, subject to any specific law, to contact and retain advisers to deal with issues raised by authorities investigating alleged breaches of a law. Further, there is, in the Court’s view, nothing which links the request by Prism Grafix for Mr Olsen to attend at Prism Grafix’ premises at the time of the 27 June 2008 DIAC Meeting with the termination of Mr Weerasinghe several weeks later.
Much was made of whether or not Mr Vaswani, Mr Olsen and Mr Shah (who was not called to give evidence) could see into the room (which is Mr Shah’s room) where the 27 June 2008 DIAC Meeting was taking place. There were various accounts ranging from Mr Vaswani’s assertion that he could not see what was happening in the room where the 27 June 2008 DIAC Meeting was being held, through to Mr Weerasinghe and Mr Sarac’s assertions that they could see out from that room to Mr Vaswani’s room and could see Mr Vaswani observing what was happening in the 27 June 2008 DIAC Meeting. Mrs Vaswani thought that the blinds in Mr Vaswani’s office might have been partially closed thereby obstructing the view, at least in part, from Mr Vaswani’s room, or at least from where Mr Vaswani said he was sitting he was sitting in the room. Mr Olsen said that from where he was standing in Mr Vaswani’s room he could only see part of the room in which the 27 June 2008 DIAC Meeting was taking place. The 457 Visa holders were only partially visible from Mr Vaswani’s office according to Mr Olsen. Ultimately, the Court considers that the best evidence in relation to what could be observed from Mr Vaswani’s office is that of Mr Olsen who gave a clear and detailed explanation, both orally and by the drawing of a “mud map” which clarified why it was that the room in which the 27 June 2008 DIAC Meeting was taking place was only partly visible, and the 457 Visa holders were only partly visible, from Mr Vaswani’s room. When one looks at the “mud map” it is evident that the room in which the 27 June 2008 DIAC Meeting was held is further down the corridor from Mr Viswani’s room and that to see into that room one must look diagonally on a very shallow angle, and that it is simply not possible for a person in Mr Viswani’s room to see a significant portion of the room in which the 27 June 2008 DIAC Meeting was held. Therefore, depending upon where Mr Viswani was sitting and where the people in the other room were standing (neither of which was established with absolute precision) he may not have been able to see any of the people in the 27 June 2008 DIAC Meeting.[236] However, even if Mr Vaswani, and others employed or retained by Prism Grafix, were taking an interest in who was in the 27 June 2008 DIAC Meeting and what occurred in that meeting, and saw some or all of the 457 Visa holders participating in the 27 June 2008 DIAC Meeting nothing particularly turns upon it in the Court’s view. It would be wholly unnatural if representatives of Prism Grafix present on the premises at the time of the 27 June 2008 DIAC Meeting did not take an interest in what was occurring in relation to an investigation, and an ongoing investigation, by DIAC. There is nothing in the circumstances of that interest, which appears to the Court to be entirely normal, which would warrant an adverse inference being drawn such as to link what occurred on 27 June 2008 with the termination of Mr Weerasinghe some weeks later. Further, in relation to that, the Court accepts that insofar as Mr Weerasinghe had recourse to Mr Hennings of DIAC in relation to issues personal to him during the course of the 27 June 2008 DIAC Meeting, it is apparent, and the Court accepts, that Prism Grafix, and in particular Mr Vaswani and Mr Olsen, were not aware of what was said or done by Mr Weerasinghe, or in relation to Mr Weerasinghe, in the 27 June 2008 DIAC Meeting.
[236] Transcript at p.115.
It is apparent from the course of events, and in particular what occurred at the various meetings in May 2008 involving the 457 Visa holders, Prism Grafix and DIAC, and the 27 June 2008 DIAC Meeting, that Mr Weerasinghe had recourse to DIAC in relation to various issues concerning his employment entitlements, and the Court so finds.
27 June 2008 – the Sarac meeting
After the 27 June 2008 DIAC Meeting there was a meeting involving Mr Sarac, Mr Vaswani and Mr Olsen.[237]
[237] Transcript at pp.79 and 125; “Sarac Meeting”.
Mr Sarac said that:
a)after the 27 June 2008 DIAC Visit, Mr Sarac met with Mr Vaswani and Mr Olsen, and says he was not asked about any problems he wished to discuss, but about the issues raised with DIAC, and although not involved in any of the issues with the Sri Lankan workers, he volunteered some information about some of the matters raised by Mr Hennings because he did not want to have any conflict and preferred to be neutral;[238]
b)he was asked by Mr Vaswani and Mr Olsen what Mr Weerasinghe was doing with a mobile phone at the meeting, to which he replied that Mr Weerasinghe “was translating the questions from a Sri Lankan representative”;[239]
c)he told Mr Vaswani and Mr Olsen that he had been requested by Mr Hennings to record his working time and to keep a journal and that Prism Grafix did not ask him to record his working time;[240]
d)following the 27 June 2008 DIAC Meeting he was called into Mr Vaswani’s office, with Mr Shah and Mr Olsen also in attendance, and he was questioned about what was going on, what was talked about, and who Mr Weerasinghe was speaking to on the phone, during the 27 June 2008 DIAC Meeting;[241] and
e)because the issue of overtime had been raised in the 27 June 2008 DIAC Meeting, he was told that he needed to sign a statutory declaration stating that he did not work longer than 7.6 hours per day during his employment, but he refused to sign such a declaration.[242]
[238] Transcript at p.79.
[239] Transcript at p.79.
[240] Transcript at p.80.
[241] Transcript at p.75.
[242] Transcript at pp.75-76.
Mr Vaswani said that:
a)
he was informed that, as a result of the 27 June 2008 DIAC Meeting, DIAC had raised a concern with Mr Olsen about
Mr Sarac’s working hours;[243]
b)neither he nor Mr Olsen gave Mr Sarac a statutory declaration to sign;[244]
c)he did not ask Mr Sarac why Mr Weerasinghe was talking on the phone or what he was doing in that meeting;[245]
d)it had always been the practice for the workers to use time cards;[246]
e)Mr Shah did not punch out the 457 Visa holders’ time cards before they finished their shifts on a regular basis before May 2008, but explained that he did so each fortnight at 4.00pm for the whole factory because money was transferred to their accounts on that day, and that any excess hours worked were paid in the following week;[247]
f)he did not say to Mr Sarac in the Sarac Meeting “I’ll spare no amount of money to get these people out of Australia”;[248] and
g)he was aware that a 457 Visa holder who does not have a job was allowed 28 days to find another job.[249]
[243] Transcript at p.125.
[244] Transcript at p.125.
[245] Transcript at p.126.
[246] Transcript at p.126.
[247] Transcript at p.127.
[248] Transcript at p.128.
[249] Transcript at p.128.
Mr Olsen said that at the Sarac Meeting:
a)he and Mr Vaswani discussed Mr Sarac’s hours because he did not record his hours as the other 457 Visa holders did, and a record of his hours was needed for DIAC;[250]
[250] Transcript at pp.171-172 and 181-182.
b)
he did not ask Mr Sarac, and he was not concerned about, who spoke to the interpreter on the telephone because
Mr Hennings had told him that an interpreter was used, and therefore he did not ask Mr Sarac who was on the phone, and nor did Mr Vaswani;[251]
[251] Transcript at pp.172 and 178.
c)
he was unaware whether Mr Weerasinghe had asked
Mr Hennings any questions or whether Mr Hennings had given Mr Weerasinghe a business card;[252]
d)he denied asking Mr Sarac, or that Mr Vaswani asked, why Mr Weerasinghe was on the phone “because I didn’t know he was on the phone” and that “At no time was it said that Antoney - what was Antoney doing on the phone”;[253]
e)he asked Mr Sarac to sign a statutory declaration but denied asking him to record his hours being 7.6 hours a day, and said “he is the subject to a workplace agreement where he should be recording his hours … He hadn’t recorded his hours so I asked him if he would sign a statutory declaration in support of the hours that he’s been working”;[254]
f)Mr Sarac’s AWA “has a clause in it that he has flexible working hours”;[255] and
g)he denied Mr Vaswani said to Mr Sarac words to the effect “I’ll spare no amount of money to get these people out of Australia, if they’ve used me to get to Australia”;[256]
[252] Transcript at p.172.
[253] Transcript at pp.182.
[254] Transcript at pp.182, and see also p.186.
[255] Transcript at p.182.
[256] Transcript at p.182.
Mr Firman said that he used a clocking-in card himself to record his hours of work apart from on Tuesday evenings when everybody was paid “Anil just comes and he clocks me and Wimal and Jaggeth out so that … he can total our wages up and pay our wages in. Then … on the Wednesday morning with the new clock cards all I do is I just write at the bottom of the clock card what hours we worked til so he can add that on the following two weeks wages”.[257]
[257] Transcript at p.159.
The Court accepts that Mr Sarac was asked to sign a statutory declaration by Mr Olsen, but that Mr Olsen only asked Mr Sarac to properly record the hours that he had been working in that statutory declaration, and that there was no suggestion that Mr Sarac ought to falsely record hours worked in the statutory declaration. The Court also accepts generally Mr Olsen’s account of the Sarac Meeting.
In relation to the issue of time cards, the Court accepts the evidence of Mr Firman and Mr Vaswani that Mr Shah only clocked out employees on Tuesday afternoons at 4.00pm, and only did so for the purposes of closing out the time record to enable wages to be calculated to that time. Mr Sarac may indeed have seen this occurring, but there is nothing in the evidence otherwise which supports any assertion that time cards were thus being falsified. It is clear from Mr Firman’s evidence that the hours worked after 4.00pm on Tuesdays were added to the time cards on Wednesday mornings, and properly accounted for for wages purposes, and this is confirmed by Mr Vaswani’s evidence which should be accepted in this regard.
Nothing in relation to the Sarac Meeting, or the time cards issues raised by Mr Sarac, warrants the drawing of any adverse inference against Prism Grafix in relation to Mr Weerasinghe’s termination of employment. It was suggested that an adverse inference ought to be drawn from the failure to call Mr Shah with respect to the time cards issue. However, it was conceded by Counsel for the respondent that the time cards allegation “by itself does not determine any of the issues in this case.”[258] It almost goes without saying that no adverse inference ought to be drawn from the failure to call a witness in relation to an allegation which does not go to any issue in the case. In any event, so far as it might go to any issue in the case, the Court has found that there is an explanation available for the conduct of Mr Shah with respect to the time cards which does not warrant the drawing of any adverse inference against Prism Grafix in relation to Mr Weerasinghe’s termination of employment.
[258] Transcript at p.206.
10 July 2008 - Prism Grafix receives a second breach notice
On 10 July 2008 DIAC:
a)issued a further Breach Notice to Prism Grafix,[259] raising issues of underpayment to 457 Visa holders, as a result of initially working more than 38 hours per week without receiving additional compensation, and the validity of a time in lieu arrangement; and
b)made an email request for production of documents to allow DIAC to assess Prism Grafix’s compliance with sponsorship undertakings.
[259] “10 July 2008 Breach Notice”.
Mr Vaswani stated that he was informed by Mr Olsen that the 10 July 2008 Breach Notice had issued, and that Mr Olsen had had various communications with DIAC following that breach notice.[260]
[260] Transcript at p.121.
Mr Olsen gave evidence that he wrote a letter from iMigrate to DIAC on 8 August 2008[261] advising that “all matters raised and with which Prism is required to lawfully comply have been addressed and rectified as appropriate and evidence provided to DIAC”.
[261] Exhibit R 15.
July-August 2008 - Mr Weerasinghe trains Saman Don
Mr Weerasinghe says that:
a)in the months leading up to the termination he was performing laminating work and training another person, Saman Don[262] from Sri Lanka, to do the same work “two months before my termination”;[263]
b)he trained Mr Don “from A-Z, how the machine works, what buttons should be pressed, what sort of work has to be done …”;[264] and
c)Mr Don had started work at Prism Grafix before Mr Weerasinghe was terminated and “is still working there”.[265]
[262] “Mr Don”.
[263] Transcript at p.23.
[264] Transcript at p.24.
[265] Transcript at p.24.
Mr Firman gave evidence that:
a)in early 2008 an engineer from Sydney came over to give Mr Weerasinghe a further three days tuition on the laminating machine;[266]
b)he assisted Mr Weerasinghe with the de-curl bar and with adjusting the speed of the machine;[267] and
c)although Mr Weerasinghe had trained Mr Don on the laminating machine “sometimes the pupil can exceed the teacher’s ability. … I did observe, straight away … as soon as Saman could run the laminating machine, just simply the speed and the quality and the attention … were just a different standard straight away”.[268]
[266] Transcript at p.155.
[267] Transcript at p.155.
[268] Transcript at p.158.
It is evident from Mr Firman’s evidence that notwithstanding Mr Weerasinghe having gone onto the laminating machine and being trained in late 2006 that he was still requiring further tuition in early 2008, and that when he came to train Mr Don on the laminating machine it was immediately apparent that Mr Don’s ability on that machine exceeded that of Mr Weerasinghe.
Mr Weerasinghe’s evidence that there was no other reason for his termination than his recourse to DIAC is, on his part, entirely speculative. The Court does not accept that if there was any change in attitude towards Mr Weerasinghe, and the other 457 Visa holders, as a consequence of the DIAC visits, that it was that change in attitude which was a part of the reason for Mr Weerasinghe’s termination. On the evidence it is clear that:
a)Mr Weerasinghe received early warnings in respect of his poor performance;
b)Mr Weerasinghe was still not, as late as early 2008 and then again in July and August of 2008, an outstanding performer;
c)on the laminating machine Mr Don was a far superior performer to Mr Weerasinghe;
d)at some point, but not immediately prior to Mr Weerasinghe’s termination, Mr Vaswani had feedback from Mr Firman about Mr Don’s superior performance on the laminating machine;
e)over a lengthy period of time from approximately April 2007 Prism Grafix’ business had been exposed because it had one primary client, and because of the effects of the general financial downturn in 2007-2008;
f)active consideration was being given to various steps, including reducing the number of employees at Prism Grafix, in an endeavour to ensure that the business continued in existence;
g)Mr Vaswani’s advice concerning restructuring from Mr Olsen was to select the best employees for particular jobs; and
h)in relation to the laminating machine, it is apparent that Mr Weerasinghe was not the best employee for that job, and in relation to other work that he had earlier performed, that he was a poor performer, and was thereby unlikely to be the person most likely to be chosen for another position at Prism Grafix.
7 August 2008 - Mr Weerasinghe receives a termination letter
On 7 August 2008 Mr Weerasinghe was handed a letter terminating his employment with two weeks notice.[269] The Termination Letter was translated to him by Mrs Vaswani.
[269] “Termination Letter”
Mr Weerasinghe said that:
a)he had received two previous warnings from Prism Grafix, the first of which was two months after he first started work, and the second one was about four months after the first, and no other warnings prior to his employment being terminated;[270]
b)he was called into the manager’s office with Mr Vaswani, the accountant, Mr Shah and a person named “Philip” (there is no dispute that this refers to Mr Olsen), handed him the Termination Letter, and he was told his services were not required;[271]
c)he had handed Prism Grafix a form for approval of his vacation leave “but I didn’t get it back, so after two weeks they gave me a letter of termination. … I was terminated from 21 August 2008 … The letter was given to me two weeks before that”;[272]
d)there had been about 10 people working at Prism Grafix when he started work and about 18 people when he was terminated, and there were “contract employees, employed on and off during that time depending on the work of the company”;[273]
e)apart from the laminating machine he operated the cylinder machine and the patching machine, two kinds of laminating machines;[274]
f)in the months prior to his termination he was working on two laminating machines, and was training Saman on both machines;[275]
g)prior to his termination he was working from 7.30am to 3.30pm;[276]
h)at the time of his termination “there was work for the company and other people from Sri Lanka were working there. They work on Saturdays/Sundays as well”;[277] and
i)he believed that the reason for his termination was for “No other reason than I spoke to the Immigration” and because “after that only they started putting me under pressure and they treated me differently after the Immigration officer’s visit”.[278]
[270] Transcript at p.22-23.
[271] Transcript at p.23.
[272] Transcript at p.22.
[273] Transcript at p.24.
[274] Transcript at p.24.
[275] Transcript at p.25.
[276] Transcript at p.25.
[277] Transcript at p.26.
[278] Transcript at p.28.
Mr Vaswani said that:
a)at the meeting with the accountant in July 2008 he expressed his concerns and discussed several options about the business at that time, including “closing the business … reducing the head count and bringing things back a little bit into proportion, which I call the middle path, and … to actually sell the business.”;[279]
[279] Transcript at p.105.
b)he had advertised the business for several months but did not receive any offers to purchase it,[280] and although there had been a couple of expressions of interests, they fell away once they found that the majority of work came from one client;[281]
[280] Transcript at p.106.
[281] Transcript at p.106.
c)apart from advice from Mr Shah he also sought advice from Mr Olsen because “I wanted to basically cover all my options in case we closed down…What are my obligations towards my employees and what needs to be done …”;[282]
[282] Transcript at p.106.
d)the discussions with Mr Olsen were “all about cost-cutting strategies really. … we agreed that I would be reducing the head count in the factory for those employees that were not multi-skilled and multi-tasked. … again, I discussed the option of leasing out the building with him”;[283]
[283] Transcript at p.106.
e)because of the downturn, all of Prism Grafix’ equipment was not being utilised, and “It was lying idle …. I was still paying for it but … I couldn’t use it because there was no work for it”;[284]
[284] Transcript at p.107.
f)he considered selling the equipment but could not find any buyers;[285]
[285] Transcript at p.107.
g)when attempting to decide which employees to retain and which to dismiss he “listed out the number of staff I had and I wanted to see which one of them would be able to operate or work in more than one area …”;[286]
[286] Transcript at p.107.
h)the reductions in staff also included office, production and administration staff;
i)there was four terminations including the receptionist, Ms Cossom, who had been kept on until the end of the diary season to answer phone calls, who resigned on 11 December 2008, and Mr Nicholas who “resigned but he was to be terminated in September/October [2008]”;[287]
[287] Transcript at pp.108-109.
j)Prism Grafix had chosen not to continue sponsorship of Mr Upul because “while being a very, very good employee and operator was only capable of running the guillotine. He could not be multi-tasked;[288]
[288] Transcript at p.108.
k)by August 2008 CJ King had put in a guillotine and had withdrawn most of their guillotining work from Prism Grafix;[289]
[289] Transcript at p.109.
l)on 7 August 2008, in the company of Mr Olsen and Mrs Vaswani, he handed the Termination Letter to Mr Weerasinghe, with the termination effective 21 August 2008, and this was translated by Mrs Vaswani to Mr Weerasinghe in Sinhalese;[290]
[290] Transcript at p.110.
m)Mr Weerasinghe responded to the termination of his employment by asking why he was terminated, to which he was told that his services were no longer required;[291]
[291] Transcript at p.110.
n)an employee, Saman Don remained employed to operate the laminator in preference to Mr Weerasinghe because he:
i) had “far superior” skills;
ii) made virtually no errors;
iii) could work unsupervised;
iv) was a “very quick operator”; and
v) knew how to operate other equipment;[292]
o)he had received positive feedback from Mr Firman about Mr Don;[293]
p)his decision to dismiss Mr Weerasinghe was not influenced by Mr Weerasinghe’s recourse to DIAC;[294]
q)although Prism Grafix had terminated the employment of about five people and had leased out the building it had purchased, it incurred losses; and
r)Mr Weerasinghe had not received any written warnings for approximately 16 months prior to his termination.[295]
[292] Transcript at p.110.
[293] Transcript at p.111.
[294] Transcript at pp.117-118.
[295] Transcript at p.128.
Mrs Vaswani says that when she translated Mr Weerasinghe’s Letter of Termination to him he asked “why” and she said, his “services are no longer required”.[296]
[296] Transcript at p.133.
Mr Firman said that:
a)he had no involvement in the decision to dismiss Mr Weerasinghe; and
b)he was not consulted about Mr Weerasinghe’s quality of work leading up to the termination of his employment in August 2008.[297]
[297] Transcript at p.160.
Mr Olsen gave evidence that:
a)he attended a meeting on 7 August 2008 relating to the termination where Mr Weerasinghe’s employment was terminated, for “economic reasons”;[298]
b)he recalled that Mr Vaswani said words to the effect that “his business … is in a downturn and it had been in a downturn for some time, and due to economic conditions he has to look at the workforce”;[299]
c)he commenced giving Prism Grafix advice about economic circumstances and restructuring from about July 2008;[300] and
d)during the discussions leading up to 7 August 2008 he denied discussing with Mr Vaswani the potential termination of Mr Weerasinghe specifically, and said “In restructuring … you look at the efficiency of the business and the right people for the right roles. That decision is the company’s” and “I gave him direction that he should be choosing the best people for the right roles”.[301]
[298] Transcript at p.173.
[299] Transcript at p.173.
[300] Transcript at p.183.
[301] Transcript at p.183.
In light of the above circumstances, the Court finds that the reason for Mr Weerasinghe’s termination was based upon:
a)his performance in his various roles, and most recently on the laminating machine, at Prism Grafix, and it was this lack of performance (which included an inability to perform functionally on various machines), which meant that he was selected for termination instead of another employee; and
b)Prism Grafix’ precarious business position during 2008, which had been an issue under consideration since 2007.
Even without Mr Vaswani’s express denial that Mr Weerasinghe’s recourse to DIAC played any part in the terminating of Mr Weerasinghe’s employment, the Court would have reached the above finding. The fact that Mr Vaswani expressly states that to be so merely reinforces a conclusion that the Court would otherwise have reached in any event. Thus, recourse to DIAC by Mr Weerasinghe was not an operative factor in the termination of his employment by Prism Grafix.
21 August 2008 – DIAC issues Sanction Notice
On 21 August 2008 DIAC issued a Sanction Notice and Decision Record[302] against Prism Grafix, which:
a)referred to the 20 May 2008 Breach Notice and the 2 July 2008 Breach Notice;
b)found that Prism Grafix had breached one or more undertakings in connection with the sponsorship of employees, including Mr Weerasinghe; and
c)barred Prism Grafix from sponsoring new employees for a period of 12 months.
[302] “21 August 2008 Sanction Notice”.
Mr Vaswani stated that he was made aware by Mr Olsen of the
21 August 2008 Sanction Notice, which he saw and read.[303]
[303] Transcript at pp.119 and 121.
21 August 2008 – Mr Weerasinghe’s employment ceases
Mr Weerasinghe’s employment with Prism Grafix terminated on 21 August 2008 in accordance with the two weeks notice given in the Termination Letter on 7 August 2008.
Much was made in submissions on behalf of Mr Weerasinghe of the coincidence of the timing of his termination of employment, and the failure to give any further warnings after the Second Warning. In the Court’s view the timing of his termination was entirely coincidental. It is clear that issues related to Mr Weerasinghe’s performance were an ongoing issue at Prism Grafix, and although Mr Firman had no direct involvement in the decision to terminate Mr Weerasinghe’s employment, and was not consulted about the quality of Mr Weerasinghe’s work leading up to Mr Weerasinghe’s termination, at some stage feedback was provided to Mr Vaswani in relation to the superior performance of Mr Don on the laminator, and at least inferentially, Mr Weerasinghe’s poorer performance. Further, the performance of Prism Grafix’ business had been the subject of ongoing consideration over a period of more than 12 months prior to Mr Weerasinghe’s termination, and Mr Weerasinghe was not the only employee who was terminated or not replaced. Significantly, some of those other employees were not employees who had had recourse to DIAC. In the circumstances, the Court does not consider that the timing of Mr Weerasinghe’s termination of employment warrants the drawing of any adverse inference by reference to the period during which DIAC was involved at Prism Grafix.
Employment of casuals – October and November 2008 and February 2009
There is evidence that Prism Grafix employed five casual employees, one in the position of machine operator (in October 2008),[304] one in the position of driver/table hand, two in the positions of table hand and one in an undesignated position, in the period between October 2008 and February 2009. Without more these facts do not assist in relation to the reason for the termination of Mr Weerasinghe’s employment in August 2008. In any event, the fact that the employees were casual, and that there was no evidence as to the hours that they actually worked, except for one employee who worked 27.5 hours in a fortnight in February 2009,[305] takes the matter no further. On the face of it, the employment of casuals is consistent with those persons being employed to fill gaps rather than any ongoing employment. Furthermore, only one of the employees was a machine operator, and the others worked in capacities in which Mr Weerasinghe had not worked, and in relation to which there was no evidence of his skills, or indeed the nature of the casual employment, other than what might be obvious from the description of table hand or driver.
[304] The machine operator was a casual, contrary to a submission made by Counsel for Mr Weerasinghe: see Transcript at p.208, and compare Exhibit R21, being an “offer of casual employment” as a “Machine Operator”.
[305] Exhibit R18.
November 2008 - Mr Weerasinghe seeks new employment
Mr Weerasinghe says that following his termination he applied for other jobs with printing companies where vacancies existed but the companies were not prepared to sponsor him on his 457 Visa to employ him.[306] However, he secured new employment towards the end of November 2008, but had not commenced work with his new employer as at the date of filing this application on 4 February 2009, because the application for sponsorship transfer, which he made on 28 November 2008, had not at that time been granted by DIAC.
[306] Transcript at p.27.
Mr Weerasinghe claims lost wages of $20,582.73, including superannuation, as at 4 February 2009.
December 2008 – Mr Weerasinghe travels to Sri Lanka on vacation
Mr Weerasinghe went on vacation to Sri Lanka in December 2008.
On his return to Australia on 14 January 2009 his 457 Visa was converted to a bridging visa by DIAC.[307]
[307] Transcript at p.27.
February 2009 – Mr Weerasinghe commences new employment
Mr Weerasinghe was unemployed for approximately three months and then commenced fulltime work at Port Printing in February 2009,[308] on a 457 Visa.[309]
[308] Transcript at pp.27-28.
[309] Transcript at p.28.
Section 659(2)(e) of the WR Act
Section 659(2)(e) of the WR Act provides as follows:
(2)Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
…
In Hayward v Rohd Four Pty Ltd[310] this Court, following an extensive review of relevant authority said in relation to s.659(2) of the WR Act:
[310] (2008) 177 IR 212; [2008] FMCA 1490 (“Rohd Four”).
34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
a) The applicant proving the fact of employment and its termination;
b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss 659(2) and 793(1) of the Act;
c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant's employment;
d) In discharging that onus the respondents do not have to prove that the applicant's employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.[311]
[311] Rohd Four IR at 223-224 per Wilson FM; FMCA at para.34 per Wilson FM.
In an earlier judgment, this Court had also observed that:
93. A consideration of s 809(1) makes it immediately apparent that any application (here the Amended Statement of Claim) must allege conduct (and more than merely a breach reciting the relevant provisions of the WR Act). The onus of proof in relation to the conduct alleged is what is reversed, as was explained in Geraldton Port Authority as follows:
"If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267."[312]
[312] Buckingham v KSN Engineering (2008) 177 IR 427 at 450 per Lucev FM; [2008] FMCA 546 at para.93 per Lucev FM (footnote omitted).
Further consideration
Mr Weerasinghe was employed by Prism Grafix with effect from 7 August 2006 and his employment was terminated on 21 August 2008.
Mr Weerasinghe put various arguments as to why it was that the facts established that his termination of employment was unlawful under s.659(2)(e) of the WR Act by reason of his having had recourse to a competent administrative authority, namely DIAC.
Principally, Mr Weerasinghe’s argument is that the series of events described above, which included recourse to a competent administrative authority, namely DIAC, was one of the reasons for the termination of Mr Weerasinghe’s employment, because they had caused increased pressure on Prism Grafix, and were a major factor in Prism Grafix’ decision to terminate his employment. Mr Weerasinghe points particularly to the coincidence of the timing of the investigation culminating on the same day as he was terminated.
In the Court’s view the assertion based on the series of events is too general, and not supported by the specific facts.
Mr Weerasinghe says that his termination was not performance based because he received no further warning after the Second Warning in March 2007. However, this does not establish that the termination of employment was unlawful. There is no evidence that any of the other employees had been warned for poor performance, or had a similar warning or warnings on their record. Furthermore, the evidence, particularly that of Mr Firman, is that even though there were no further warnings given to Mr Weerasinghe his performance was still sub-standard, and indeed such that the person who he trained on the laminator quickly exceeded Mr Weerasinghe in his ability to perform on that machine. It was the relative lack of performance by Mr Weerasinghe that contributed to his being selected for termination of employment.
Mr Weerasinghe also places considerable emphasis on the events in and around the 27 June 2008 DIAC Visit. Mr Weerasinghe points to the reaction of Prism Grafix in contacting Mr Olsen and requesting his attendance, and says that Mr Olsen’s more-or-less immediate attendance was indicative of significant concern in relation to the DIAC visit, and that that concern in part lead to Mr Weerasinghe’s dismissal six weeks later.
There is nothing adverse in the Court’s view, to be inferred, from the entirely normal reaction of Prism Grafix in contacting the appropriate adviser, and having that adviser attend on the premises, in relation to an ongoing investigation on 27 June 2008. The fact that Mr Weerasinghe was given notice of termination of his employment some six weeks later, and terminated approximately eight weeks later, is a delay which also does not assist in drawing any adverse inference from the evidence in relation to the alleged unlawfulness of Mr Weerasinghe’s termination.
Significant emphasis is placed on whether Mr Vaswani could or could not see into the room in which the 457 Visa holders meeting with the DIAC officers was taking place. Mr Weerasinghe suggested that Mr Vaswani could see into the room, but that Mr Vaswani gave evidence that he could not see into the room, because what he saw in the room, namely Mr Weerasinghe having recourse to DIAC, was a reason for Mr Weerasinghe’s termination. Differing accounts were given by the witnesses as to whether there was a view of the room in which the DIAC officials were meeting with the 457 Visa holders. On the basis of the evidence the Court has concluded, as set out above, that Mr Vaswani may not have been able to see into the room, but that not much turns on it in any event.
Even if Mr Vaswani could see into the room in which the meeting was held on 27 June 2008, the Court is not persuaded that the interest which was shown, such as it was, was any more than the ordinary reaction of a person responsible for managing an organisation to a visit from an administrative authority such as DIAC. There is insufficient in the evidence to warrant a factual conclusion that an interest by Mr Vaswani in what was happening in the meeting on 27 June 2008 was connected to Mr Weerasinghe’s notice of termination given some six weeks later. Thus, even on a best evidentiary case for Mr Weerasinghe, the Court is not prepared, from such ordinary events, to draw an inference giving rise to a conclusion adverse to Prism Grafix, namely that any conduct observed in the room was evidence that the reason for Mr Weerasinghe’s termination was his recourse to DIAC.
Mr Weerasinghe criticised Prism Grafix’ failure to call Mr Shah concerning the 27 June 2008 DIAC Visit, and did so on the basis that he could have given evidence about what happened that day. However, aside from the matter of what Mr Vaswani could see of the meeting, there was no relevant dispute concerning what actually happened on that day, and there was ample evidence from Mr Weerasinghe, Mr Vaswani and Mr Olsen as to what occurred on that day. There was no foundation laid for any suggestion that Mr Shah would have added materially to the relevant evidence before the Court.
Mr Shah was also said to be a person who could have given evidence about the stamping of time cards for the 457 Visa holders. Specifically, it was suggested that the time cards were being falsified. However, the evidence for Mr Weerasinghe, primarily that of Mr Sarac, did not establish any falsification of time cards. There is no, or no reliable, evidence of time card falsification, and therefore nothing which required Mr Shah to give evidence about that issue.
The cessation of payment of deductions on behalf of the 457 Visa holders, and the form of the deduction authorities signed by them, were said to be evidence of Prism Grafix’ concern re the DIAC investigations, and that DIAC’s criticism of the practice of making the deductions lead to their withdrawal, and was part of the events which lead to the decision to dismiss Mr Weerasinghe. The form of words used in the deduction authorities, which was standard, was doubtless designed to ensure that Prism Grafix could not be criticised for forcing the 457 Visa holders to enter into the deduction arrangements, and to signify that they consented to having the deductions made on their behalf. The deduction authorities were translated for the 457 Visa holders by Mrs Vaswani, and there is no evidence the 457 Visa holders objected to the deductions being made on their behalf. Indeed, the evidence of Mr Weerasinghe made it apparent that the withdrawal of the deduction arrangements was not something that he, and the other 457 Visa holders, favoured. Further, the deduction authorities arrangement was, on the evidence, one previously endorsed by DIAC, and was now being withdrawn by Prism Grafix at DIAC’s direction. Whilst the deductions made have ultimately been found to be unlawful, there is nothing in the evidence that suggests that the cessation of the practice of deductions bore any relationship at all to Mr Weerasinghe having his employment terminated. That is further reinforced by the fact that Mr Weerasinghe was given his notice of termination more than three months after the practice of making the deductions had ceased.
Mr Weerasinghe also argued that the content of the 12 May 2008 Meeting was significant, especially as it related to:
a)the changed pay and hours arrangements then discussed; and
b)statements concerning 457 Visa holders not getting any more favours from Prism Grafix.
The changed pay and hours arrangements which were made more than three months before Mr Weerasinghe’s employment was terminated, related to all 457 Visa holders, and not just Mr Weerasinghe. Nothing in the evidence gives rise to an inference that the changes to pay and hours arrangements were a reason for Mr Weerasinghe’s termination three months later. Indeed, at the time, the evidence is clear that the nature of the changes was forced on Prism Grafix by DIAC, and that such changes were inevitable if Prism Grafix was properly to comply with its obligations as an employee of the 457 Visa holders. The evidence points to a desire by Prism Grafix to conform with the law, by making the relevant changes, and not to do anything unlawful as a consequence of the changes.
Conclusion
The facts do not establish that the termination of Mr Weerasinghe’s employment was unlawful under s.659(2)(e) of the WR Act by reason of his recourse to a competent administrative authority. Rather, the facts establish that the reasons for Mr Weerasinghe’s termination of employment were related to his ongoing poor performance and the poor financial position of Prism Grafix’ business.
For the reasons set out above, the application by Mr Weerasinghe will be dismissed, and an order made accordingly.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 16 September 2011
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