Zhou v Tos Food Supply Centre Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhou v Tos Food Supply Centre Pty Ltd [2025] NSWPIC 115
APPLICANT:	Dihong Zhou
RESPONDENT:	Tos Food Supply Centre Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	28 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; calculation of the applicant’s pre-injury average weekly earnings (PIAWE); whether applicant was paid his wages partly in cash; Held – the applicant commenced employment with the respondent on 6 June 2024 and that the wages paid to the applicant included cash; the amount of the applicant’s PIAWE is $1,331.96.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant commenced employment with the respondent on 6 June 2024 and that the wages paid to the applicant included cash. 2. That the amount of the applicant’s pre-injury average weekly earnings is $1,331.96. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Dihong Zhou, applicant, has brought proceedings in the Personal Injury Commission (Commission) against Tos Food Supply Centre Pty Limited, respondent, in which he alleges that he sustained burn injuries to his left arm, abdomen and right leg on 14 August 2024.
The applicant claims weekly compensation from 14 August 2024 ongoing pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act).
There is no dispute in respect to injury or incapacity. The only issue before the Commission to be determined is the amount of the applicant’s pre-injury average weekly earnings (PIAWE). The parties do not seek that any order be made in respect to the payment of weekly compensation.
The applicant alleges a PIAWE of $1,331.96 whilst the respondent relies on a PIAWE of $409.10.
The applicant alleges that he commenced employment with the respondent on 6 June 2024 and that he was initially paid his wages in cash only following which he received his wages both in cash and by way of Electronic Funds Transfer (EFT). The factual dispute is essentially limited to whether the applicant was paid part of his wages in cash.

ISSUES FOR DETERMINATION

The respondent disputes that the applicant was paid part of his wages in cash. The parties agree that if the alleged cash payments are included in the calculation of the PIAWE, the PIAWE is $1,331.96.
The parties agree that the following issue remains in dispute:
(a) the amount of the PIAWE.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
4 March 2025. Mr Greg Schipp, counsel, instructed by Longton Compensation Lawyers appeared for the applicant, who was present. Mr Dewashish Adhikary, counsel, appeared for the respondent, instructed by Rankin Ellison Lawyers. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 27 February 2025, and
(d)    documents attached to ALAD lodged on behalf of the respondent dated
26 February 2025.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

It was submitted on behalf of the applicant that whilst the applicant was paid some of his wages by EFT he was paid cash in addition to those EFT payments and he was initially only paid in cash. That the cash was paid to him in envelops and that those cash payments have not been taken into account by the respondent when calculating the PIAWE. In the applicant’s submissions those cash payments should be taken into account.
The parties agree that the PIAWE is $1,331.96 if the cash payments are included in the calculation.
I accept and find, for the following reasons, that the applicant commenced employment with the respondent on 6 June 2024 and was paid his wages in cash as well as receiving part of his wages by EFT.
It is the applicant’s evidence that he commenced work with the respondent on 6 June 2024 and that he worked six days per week, 10 hours per day earning $22 per hour. It is the applicant’s evidence that prior to injury he earned $1,320 per week (60 hours x $22 per hour).[1] The applicant has however provided a table of his wage earnings.
[1] ARD p. 3.
It is the applicant’s evidence that he received cash payments from the respondent for the period 6 June 2024 to 13 July 2024 and that from 24 July 2024 he began receiving partial wage payments of $241 per week via EFT with the remainder of his wage being paid in cash. It is the applicant’s evidence that the cash payments were given to him in envelops which were usually issued by “Manager Wu” and passed down to a female administrative staff member who handed them to Chef Li to distribute. It is the applicant’s evidence that as he had previously had wage issues with previous employers, he took photos of the cash envelopes and the cash wages.[2]
[2]
On 16 August 2024 the applicant completed a workers compensation claim form[3] in which he records that he commenced employment with the respondent on 6 June 2024, that he was employed full-time working 60 hours per week, earning $22 per hour, earning $1,320 per week.
[3] ARD pp. 8-15.
The claim form which was completed by the applicant shortly after the accepted injury on
14 August 2024 is consistent with the applicant’s evidence as to when he commenced work with the respondent, that he was a full-time employee, the hours that he worked and as to the remuneration that he received.
Payslips for the applicant from the respondent record:
(a)    that for the period 15 July 2024 to 21 July 2024 the applicant was paid $241 for 10 hours at $24.10 per hour;[4]
(b)    that for the period 22 July 2024 to 28 July 2024 the applicant was paid $241 for 10 hours at $24.10 per hour;[5]
(c)    that for the period 1 August 2024 to 7 August 2024 the applicant was paid $241 for 10 hours at $24.10 per hour,[6] and
(d)    that for the period 5 August 2024 to 11 August 2024 the applicant was paid $915.80 gross for 38 hours at $24.10 per hour.[7]
[4] ARD   p. 38.
[5] ARD   p. 36.
[6] ARD   p. 32.
[7] ARD   p. 34.
EFT records from the respondent to the applicant record transfers of:
(a)    $241 on 24 July 2024;[8]
(b)    $241 on 31 July 2024;[9]
(c)    $241 on 7 August 2024;[10]
(d)    $799.80 ($241 + $558.80) on 15 August 2024,[11] and
(e)    $660.05 on 22 August 2024.[12]
[8] ARD   p. 46.
[9] ARD   p. 47.
[10] ARD p. 48.
[11] ARD pp. 49-50.
[12] ARD p. 51.
The payslips are on the whole consistent with the EFT payments received by the applicant. There are no payslips or EFT payments remunerating the applicant for any work prior to
15 July 2024.
The applicant has put into evidence a series of text messages most of which are not in English but for which translations have been provided. The text messages are between the applicant and Chef Wu. Relevantly the text messages record:
(a)    on 14 June, 22 June, 29 June and 10 July 2024 the applicant sent text messages to Chef Lee advising that he would be late;[13]
(b)    that on 27 August the applicant sent a text message to Chef Wu advising that he had received a call from the insurance company in which he was told that the company “only reported $450 a week for my workplace injury”. The applicant texted Mr Wu that this was “incorrect” stating that he worked from 7.00pm to 4.30pm, 10 hours per day, 6 days per week for $22 and hour and that his weekly wage should be $1,320. The applicant requested that Mr Wu “should report faithfully my work hours and wages to the insurance company. Hope you will contact the insurance company to rectify as soon as possible.”[14] There was no response from the respondent;
(c)    on 5 September the applicant sent a text message to Chef Wu advising that his hours and wages had been underreported to the insurance company and stating “I hope the company can report faithfully to the insurance company and give me a satisfactory response by 13 September 2024. Otherwise, I will appeal with the Fair Work Commission and the Court. Thanks for your cooperation!”[15] There was no response from the respondent, and
(d)    on 15 September the applicant sent a text message to Chef Wu relevantly stating “The company underreported my work hours and my wages to the insurance company, which has seriously caused harm to my physical recovery and my mental health and has caused huge financial loss to me. So, I hope/request that Tiantong (Taste of Shanghai) contact the insurance to make the declaration immediately. Please respond to me as soon as possible, otherwise I will lodge a complaint with the Fair Work Commission tomorrow. Thanks!”[16] There was no response from the respondent.
[13] ARD p. 110-111.
[14] ARD p. 97.
[15] ARD p. 99.
[16] ARD p. 99.
The text messages of 14 June, 22 June, 29 June and 10 July 2024 evidence that the applicant was employed by the respondent prior to the commencement of EFT wage payments and the payslips for wages from 15 July 2024. The applicant had no reason to be communicating with Chef Wu prior to 15 July 2024 about running late if he was not employed. The text messages are consistent with the applicant’s evidence that he commenced work with the respondent on 6 June 2024. The lack of payslips and of EFT payments is also consistent with the applicant’s evidence that he was initially paid his wages in cash.
The applicants text messages which postdate the accepted injury sustained on
14 August 2024 are consistent with the applicant’s evidence as to the hours he worked and the remuneration he was paid. The respondent did not respond to the applicant’s text messages. If the respondent disagreed with the applicant’s assertions in the text messages as to his hours of work and the wages which he was paid it had ample opportunity to respond but did not.
The applicant has put into evidence photographs of envelops which relevantly have the following handwritten notes upon them:
·        6, 7, 8 June: 3 x 10 x $22 = $660[17]
·        11, 12, 13, 14, 15 June: 5 x 10 x $22 = $1,100[18]
·        17, 18, 19, 20, 21, 22 June: 6 x 10 = 58.5 x $22 = $1,287[19]
·        24, 25, 26, 27, 28, 29 June: 6 x 10 = 60 x $22 = $1,320[20]
·        1, 2, 3, 4, 5, 6 July: 58 x 8 x $22 = $1,287[21]
·        8, 9, 10, 11, 12, 13 July: 60 x $22 = $1,320[22]
·        15, 16, 17, 18, 19, 20 July: 60 x $22 = $1,320[23]
·        22, 23, 24, 25, 26, 27 July: 6 x $22 x 10 = $1,320[24]
·        39, 30, 31 July, 1, 2, 3 August: 6 x 60 x $22 = $1,320[25]
[17] ARD p. 52, 62.
[18] ARD p. 53, 63.
[19] ARD p. 54, 65.
[20] ARD p. 55, 67.
[21] ARD p. 56, 69.
[22] ARD p. 57, 71.
[23] ARD p. 58, 73.
[24] ARD p. 59, 75.
[25] ARD p. 60, 77.
The applicant has also put into evidence photographs that display the envelops with cash.[26]
[26] ARD pp. 79-81
The photos of the envelops and the cash supports the applicant’s evidence that he was paid cash. The applicant in his evidence gives a credible reason for taking the photographs and I accept the applicant’s evidence.
On 16 June 2024 a new staff information form was completed which consistent with the applicant’s evidence records a start date for work of 6 June 2024.
The respondent relies on a statement of Zoe Wang made on 12 February 2025. It is the evidence of Ms Wang that she is employed by the respondent as an accountant and that her knowledge of the applicant is limited to the internal accounting system and records. It is the evidence of Ms Wang that according to these records the applicant’s first pay period started on 15 July 2024 and that based on these records the applicant worked 10 hours for the first three weeks earning $241 net per week, 38 hours in the fourth week with wages of $799.80, 30.5 hours in the fifth week with wages of $660.05 for the week. It is the evidence of
[27] ALAD lodged on behalf of the respondent dated 26/2/2024 p. 2.
Ms Wang that she does “not know whether he received any cash payments.”[27]
In my view the statement of Ms Wang does not assist the respondent. Ms Wang is clear in her evidence that she does not know whether the applicant received cash payments. She does not deny that the applicant may have received cash payments. There is no evidence from anybody from the respondent denying that cash payments were made to the applicant.
In the respondent’s submission the evidence from the applicant is subsequent to him sustaining the injury. I do not accept this submission. The applicant does rely on evidence which predates the accepted injury being sustained including the text messages of 14 June, 22 June, 29 June and 10 July 2024 as well as the new staff information form. Also, the photographs of the envelops and the cash almost certainly pre-date the injury however I accept that the photographs themselves are not dated.
The respondent submits that I should not accept that the envelops came from the respondent as the photographs are not dated. I do not accept the respondent’s submission. It is the applicant’s evidence that the envelopes were received from the respondent. There is no evidence from the respondent challenging the applicant’s evidence. I have no reason to not accept the applicant as a witness of truth and in my view, he is a witness of truth and I accept his evidence.
In respect to the photographs of the envelops the respondent submits that none of the applicant’s statements disclose that the handwriting on the envelops was his. It was not until counsel for the applicant during the arbitration hearing advised that it was the applicant’s handwriting, prior to that, in the respondent’s submission, we were led to believe that the handwriting originated from the respondent employer. I do not accept the respondent’s submission. There is no representation of any kind as to the origin of the handwriting in the evidence. The evidence is simply silent as to who’s handwriting it was.
In the respondent’s submission the claim form postdates the injury and doesn’t sufficiently contradict what the respondent says the PIAWE is and the statement of Ms Wang. The respondent did not elaborate on this submission. The claim form could not have been completed prior to the injury being sustained. As previously discussed, the claim form is in my view consistent with the applicant’s evidence and in my view does contradict the respondent’s assertions in respect to PIAWE. In respect to the evidence of Ms Wang it needs to be remembered that her knowledge is limited to what appears in the accounting records which are limited to the EFT payments and the contents of the payslips.
The respondent in its submissions questioned why the applicant was paid partly in cash and partly by EFT. In the respondent’s submission the applicant does not address that in his evidence. In the respondent’s submission this is an important question in the context of the applicant having previously been underpaid. In the respondent’s submissions, in that context, one would not have expected the applicant to agree to being paid in cash. I do not accept the respondent’s submission. The respondent could have put on evidence from person(s) who had direct and full knowledge as to how the applicant’s wages were paid and what was agreed to. The respondent has not done so.
In the respondent’s submission the evidence of Ms Wang contradicts the applicant’s evidence. In the respondent’s submission whilst Ms Wang does not know if the applicant received cash payments the inference can be drawn that the applicant was not paid cash as one would assume that the company accountant would be aware of payments of wages. I do not accept the respondent’s submission. If the respondent wished to dispute that cash payments were made to the applicant someone from the respondent with direct knowledge could have given that evidence. There would be no need to rely on any inference to be potentially drawn from the evidence. I do not accept that any inference can be drawn as there may be reasons why the accountant, given their professional responsibilities, may not be aware of those payments which may have been what are colloquially referred to as “off the books”.
I do not accept the respondent’s submission that the evidence does not go beyond conflicting inferences of equal degrees of probability. In my view the evidence overwhelmingly supports that the applicant commenced employment with the respondent on 6 June 2024 and that he was initially paid his wages in cash following which he was paid his wages in a combination of both in cash and by EFT.

Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated
27 February 2025 p. 3.

[2025] NSWPIC 115

28 March 2025