Ghimire v Karriview Management Pty Ltd

Federal Court of Australia|2017-11-17|Before: Colvin J

The appeal be allowed.
Orders 1 and 2 made by the Industrial Magistrates Court of Western Australia in claim M 92 of 2017 on 17 November 2017 be set aside and in lieu thereof it be ordered that: (a) there be judgment for the claimant; (b) the respondent do pay the claimant the sum of $8,183.92; and (c) the respondent shall pay the claimant pre-judgment interest fixed in the sum of $1,217.16.
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 These proceedings concern two former employees of Karriview Management Pty Ltd (Karriview), Mr Amrit Ghimire and Ms Fulmaya Sharma. They lived and worked at Karriview Lodge in December 2016 and January 2017 with their young son. The Lodge is situated near Margaret River in the South West of Western Australia. At the time it was contemplated that they would be offered ongoing employment pursuant to business scheme visas. However, that eventuality did not occur. It appears that instead Karriview terminated their employment in January 2017. In February 2017 Karriview withdrew its application for approval as a sponsor of the visa applications by Mr Ghimire and Ms Sharma. 2 Mr Ghimire and Ms Sharma claimed that they had worked long hours and were paid nothing for their work. They brought proceedings in the Western Australian Industrial Magistrates Court invoking the small claims procedure of that Court. Karriview claimed that Mr Ghimire and Ms Sharma had worked as casual employees. It claimed to have paid each of them $700 in cash and to have withheld other payments on the basis of rent for accommodation provided by way of set-off of other amounts. It was also alleged that Karriview had reached a binding settlement of the claims. 3 The claims were heard by an industrial magistrate on 15 November 2017. Mr Ghimire and Ms Sharma gave oral evidence. Mr Lindsay Quann attended the hearing for Karriview. He gave oral evidence. Mr Quann's evidence was to the effect that the Lodge was operated as a family business and that at the time Mr Ghimire and Ms Sharma were working at the Lodge he was 'there at odds and sods times' but he was in Port Hedland 'most of the time'. Port Hedland is in the Pilbara region in the North West of Western Australia. He was not sure what days he was there. He was at the Lodge 'from time to time' and when he was there it was overnight. His wife Yvonne was there more than Mr Quann and was at the Lodge for the busy time from 26 December up to New Year's Eve. Of that period, Mr Quann's evidence was that he was only there on New Year's Eve. Therefore, Mr Quann was unable to give direct evidence as to the work done at the Lodge by Mr Ghimire and Ms Sharma. 4 Present at the Lodge was Mr Quann's daughter Zoe, her husband Ed and two children. Also working at the Lodge at relevant times were two other employees, Canice and Debbie, who had come from other businesses operated by Mr Quann's family to help at the Lodge. 5 The allegations made by Mr Ghimire and Ms Sharma as to the hours that they worked were set out in handwritten schedules provided to the Industrial Magistrates Court. They specified the hours alleged to have been worked each day. Evidence was given by them to the effect that the schedules were transposed from records kept by them at the time. 6 Karriview produced no records as to the hours worked by Mr Ghimire or Ms Sharma and it emerged in the course of the evidence given by Mr Quann that it kept no such records.

The magistrate's reasons 7 On 16 November, 2017 the magistrate gave oral reasons. In those reasons the magistrate identified the applicable award as being the Hospitality Industry General Award 2010 (Award). His Honour found that Mr Ghimire was a cook, Grade 3 and Ms Sharma met the description of 'guest service', Grade 2. His Honour made findings as to the hours worked. He provided a summary about those findings at the outset of delivering his reasons. In that summary there appeared the following: For the purpose of determining the entitlements of AG and FS under the Award, what hours were worked by each of AG and FS? For reasons to be explained, (a) On the days that AG worked in the following periods: 13/12/16-23/12/16 and 12/1/17 - 18/1/17 from 0700-1200 and 1700-2030; 26/12/16-8/1/17 from 0700-1200 and 1700-2200; 12/12/16: 5 hours; 19/1/17: 3 hours. The result is $7339.63 per the Award. (b) On the days that FS worked in the following periods: 13/12/16-23/12/16 and 12/1/17 - 18/1/17 from 0830-1230; 26/12/16-8/1/17 0830-1230 and 1330-1730; 12/12/16: 4 hours; 19/1/17: 2 hours. The result is $3867.28 per the Award. 8 His Honour rejected the claim that there had been a settlement reached in respect of the claims. He rejected the claim that there had been cash payments. For each of Mr Ghimire and Ms Sharma he allowed deductions for the provision of accommodation on the basis that they were permitted by the Award being a total amount of $1,042.46. He found that there was no entitlement on the part of Karriview to deduct other amounts. 9 In the more detailed oral reasons that were given, his Honour reasoned as follows concerning his conclusion as to the amount of hours worked: (1) As the matter was brought under the procedure for small claims, the Industrial Magistrates Court was not bound by any rules of evidence or procedure and could act in an informal manner without regard to legal forms and technicalities; (2) Nevertheless, it remained necessary for the parties to prove their claims and the standard of proof was on the balance of probabilities; (3) The Court only acted on evidence that was of rational probative force and the absence of an opportunity to cross-examine where written evidence is tendered may be critical; (4) His Honour summarised the case advanced by Karriview as being that Mr Ghimire and Ms Sharma worked no more than 18 hours and 15 hours each per week; (5) His Honour then stated 'Mr Quann's evidence is to the effect that everybody knew that was the maximum limit and they were the hours that were worked' and that his evidence 'was to the effect that that agreed position was enforced by company management on site during the period of employment'. He also stated: Mr Quann's evidence was that for periods of their period of employment there were an insufficient number of guests to generate any work more than the 18 and 15 hours respectively that had been agreed upon. His evidence was the company was not open or the premises was not open until 26 December and it was significantly reduced in operation after the end of the relatively busy Christmas to New Year period. That was Mr Quann's evidence. It is unclear whether these statements are findings accepting that evidence or mere recitations of the case as alleged by Karriview. Ultimately, the magistrate found that the hours worked by each of Mr Ghimire and Ms Sharma were greater than these alleged limits. Therefore, in that context, and given that the statements are made at the point where the magistrate is recording the case advanced by Karriview, I take them to be no more than a record of the nature of the defence to the claims; (6) His Honour then dealt with the effect of s 557C of the Fair Work Act 2009 (Cth), summarising the section in the following way: If an employer fails to comply with the record keeping obligation the employer must bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions. He found that s 557C applied; (7) His Honour then found as follows: The second point to note is that the company did not call and give evidence, oral evidence, for Mr Ghimire and Ms Sharma to question any of the employees of the company who managed them on a day-to-day basis. The company did not call to give oral evidence from Zoe or from Canice or from Yvonne or from Debbie. There was written statements from some or all of those persons but they were not available to be questioned by Mr Ghimire and Ms Sharma or to be assessed by me. I must take that into account. (8) Then, his Honour said 'I take into account the evidence of Mr Quann but I need to take into account also on his own account he was only at the premises from time-to-time during this period'. With respect, that was not the evidence given by Mr Quann. A finding expressed in that way tends to overstate considerably the ability of Mr Quann to give direct evidence as to what occurred in relation to the hours worked by Mr Ghimire and Ms Sharma; (9) Then, his Honour said: I need to also take into account that Mr Ghimire conceded in his own evidence that there were fewer guests at the Karriview Lodge in the period from 12 December to 26 December and I need to take into account that he conceded in his evidence that there were fewer guests after 12 January 2017. (10) On that basis, his Honour then found that the workload of Mr Ghimire was lower in those periods; (11) His Honour stated that as to Ms Sharma there was a dispute about the level of occupancy and a dispute about whether others helped Ms Sharma. The difficulty with these statements is that Mr Quann was the only the person who gave evidence for Karriview. However, on Mr Quann's own evidence he was primarily in Port Hedland; (12) It was then noted that the reliability and the credibility of the evidence of Mr Ghimire and Ms Sharma as to the hours that they worked was disputed by Mr Quann. However, it is important to note that the issue was not whether the evidence was disputed. The issue was whether the burden of disproving the allegations made had been discharged by Karriview; (13) The magistrate then said as to the evidence of Mr Ghimire and Ms Sharma: In assessing the evidence of each of the respective witnesses I have reached the conclusion in the case of Mr Ghimire and Ms Sharma I need to take into account that when they were giving their evidence they were often unresponsive to questions put by me. That is, tending to want to explain away documents that were inconsistent with their case, tending to want to minimise positions that might be inconsistent with their case and tending to wish to denigrate at every opportunity Mr Quann and the company. I also need to take into account that there is written evidence that Mr Ghimire and Ms Sharma changed the position of their claim a number of times over the course of these proceedings and that at various points they did, in effect, make threats that the company would be exposed to liability for large amounts of money unless an agreement was reached. All of what I summarised goes to the depth of the antipathy of Mr Ghimire and Ms Sharma towards the company and towards Mr Quann. (14) As to the evidence of Mr Quann, his Honour said: In relation to Mr Quann's evidence, I must observe that in relation to, for example, questions to explain the failure of the company to keep records or more accurately whether or not the company understood that it had an obligation to maintain records, Mr Quann was similarly unresponsive to questions. Mr Quann found it convenient when questioned about the failure of the company to keep records to turn the attention away from that obligation and to refer to the failures of Mr Ghimire and Ms Sharma, to refer to, for example, the failures or the obvious failures that they would have had to discharge their employment duties whilst also caring for their young child. (15) Then, the key findings for present purposes were expressed by the magistrate in the following way: Against that background and my assessment then of the material to which I've referred, the company has proven that Mr Ghimire has not worked some of the hours that have been claimed and I have already in the summary at the commencement of these reasons set out my findings on hours. I note, in effect, that I have reached the conclusion with respect to Mr Ghimire having taken into account the relatively quiet periods at the commencement and the end, the relatively busy period over the Christmas New Year period and I've also noted the company's allegation that there was an agreement that he worked from 5 pm to 8.30 pm. I do not propose to repeat my findings in terms of the hours with respect to Mr Ghimire. I've made those findings, and I have also made a calculation with respect to the result of those hours and the rates provided for a casual employee for those dates, for those penalty rates that are applicable, in particular, penalty rates after 7 pm, penalty rates on Saturdays and penalty rates on Sundays and public holidays. I make it clear that there is no payment for days where Mr Ghimire has indicated that he has not worked and the result, as I said at the outset, is an entitlement to $7,339.63 in accordance with the award. So far as Ms Sharma is concerned, I will not repeat the figures which I mentioned at the outset but I have taken into account, in effect, the relative quiet period and I've taken into account her evidence of having not worked outside of the hours of between 7 am and 6 pm, and I've applied the relevant penalty rates to the same days which were identified by Mr Ghimire as days which were worked. That is, there has been no payment for days identified in Mr Ghimire's claim which was the schedule to his claim for 'Days off', and the result, as I've indicated, is an award entitlement of $3,867.28. For completeness I note that if I am wrong about the application of section 557C of the Fair Work Act to these proceedings, I would have reached the same conclusion absent the reversal of the burden in that case on the same evidence. (16) The claim that cash payments had been made by Karriview was then considered and rejected; and (17) Finally, the magistrate reasoned that the other deductions claimed by Karriview could not be made, save for the deduction for the provision of accommodation that was allowed by the Award.

The orders made by the magistrate 10 On the application by Mr Ghimire, the magistrate ordered that there be judgment for Mr Ghimire in the amount of $6,297.17, plus an amount of pre-judgment interest. There was a separate order for consequential outstanding payments of superannuation. Orders of the same kind were made on the application by Ms Sharma with the amount being $2,824.82.

Record keeping and s 557C 11 Record keeping obligations are an important part of the protections afforded by the Fair Work Act. As stated by Reithmuller FM in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]-[67] in dealing, prior to the enactment of s 557C, with the importance of compliance with the obligation under the Regulations to issue pay slips to employees: The need to ensure compliance, particularly with respect to vulnerable workers, such as those on work visas, those who come to Australia without strong language skills, and those with little education is crucial to a just society, and the avoidance of exploitation. Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated. 12 These statements have been cited with approval in this Court: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] (Katzmann J) and Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [55] (White J). 13 Section 557C of the Fair Work Act states in terms that where in proceedings relating to a contravention by an employer of a civil remedy provision an applicant makes an allegation in relation to a matter and the employer was required (by specified provisions) to keep a record in relation to the matter and the employer failed to comply with the requirement (and there is no reasonable excuse as to why there has not been compliance) then 'the employer has the burden of disproving the allegation'. The civil remedy provisions include s 45 which provides that a person must not contravene a term of a modern award. 14 Section 557C provides for more than an evidentiary burden on the defaulting employer when it comes to an absence of records. It is not a mere reversal of the evidentiary onus. Further, it is not a provision, for example, that operates to deem a matter to be proved in the absence of evidence to the contrary. In such cases, an issue may arise as to whether the obligation is to adduce some evidence which raises a genuine issue as to whether the matter occurred or whether the burden of disproving the matter falls on the party who disputes the matter. Rather, s 557C states expressly that the defaulting employer bears the burden of disproving the allegation. It is a provision concerned with the overall burden of proof. 15 In that context, the reference by the magistrate to the view that the same result would have been reached on the same evidence 'absent the reversal of the burden', assumes some significance. It suggests that the magistrate had in mind a view that the provision effected a reversal of the evidentiary burden only. It indicated an evaluation of the evidence as a whole on the basis that Karriview had to adduce some persuasive evidence of its position. If it did, then the whole of the evidence was to be evaluated to determine whether the claims by Mr Ghimire and Ms Sharma had been made out. 16 However, s 557C required an employer who did not keep appropriate records to disprove the allegation. If the evidence adduced by the employer did not rise to the level necessary, on the balance of probabilities, to affirmatively prove that Mr Ghimire and Ms Sharma did not work the hours that they claimed, then the effect of s 557C was that those claims were to be upheld. In that context, it was not enough that there may be reasons to question the credibility of the account given by Mr Ghimire or Ms Sharma. Even if their evidence was not accepted, Karriview would not have thereby disproved the allegation made by them as to the hours that they worked. 17 It may be that in order for s 557C to apply, the relevant allegation must be made reasonably or bona fide before the provision applies. However, no issue of that kind was raised before the magistrate. The magistrate found expressly that Mr Ghimire and Ms Sharma were not paid anything for their work. They did undertake a considerable amount of work. Mr Quann accepted that they did work at the Lodge during the period alleged. In those circumstances, there was nothing to suggest that the claims were not bona fide.

The nature of the appeal 18 Section 548 of the Fair Work Act provides, relevantly for present purposes, that proceedings are to be dealt with as small claims proceedings under that section if a person applies for an order other than a pecuniary penalty order from a magistrates court, the claim is for an amount that an employer is required to pay under an award and the claimant indicates that he or she wants the small claim procedure. Each of these matters applied to the claims by Mr Ghimire and Ms Sharma. In such cases, the procedure was required to be conducted informally (as was recognised by the magistrate): s 548(3). Lawyers could be involved only if the magistrate granted leave: s 548(5). The parties were not represented by lawyers. 19 An application alleging a contravention of an award may be brought in an eligible State court: s 539. The claims by Mr Ghimire and Ms Sharma were claims based upon an alleged failure by Karriview to comply with the provisions of the Fair Work Act that required Karriview to pay its casual employees in accordance with the Award. It was pursued as a summary claim. A claim of that kind invoked only federal jurisdiction, but could be pursued in an eligible State court (which includes a magistrates court constituted by an industrial magistrate): Treasury Wine Estates Vintners Limited v Pearson [2019] FCAFC 21. An appeal against such a decision may be brought in a State court as provided for by a law of that State or in the Federal Court: s 565(1A). As the appeal to this Court was not brought within time, leave was required to bring the appeal. On 17 July 2019, I granted leave: Ghimire v Karriview Management Pty Ltd [2019] FCA 1108. 20 It follows that the appeal invokes the general jurisdiction conferred by s 24 of the Federal Court of Australia Act 1976 (Cth) and is to be dealt with in accordance with the principles that apply generally to appeals brought in this Court from primary decisions. It is not enough that this Court disagrees with the decision of the magistrate. There must be an error of law demonstrated or an error infecting a finding of fact: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [45]-[53]. The principles to be applied were recently summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee [2019] HCA 28 at [55] in the following terms: A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (footnotes omitted) 21 The appeal is by way of rehearing on the evidence before the magistrate with discretion to receive further evidence: s 27 of the Federal Court Act. The same orders may be made as on any other appeal against the decision of a primary judge making due allowance for the summary nature of the jurisdiction being exercised. Where error is demonstrated the Court may affirm, reverse or vary the judgment appealed from and give such judgment as, in all the circumstances, it thinks fit: s 28(1) of the Federal Court Act.

The grounds of appeal 22 Counsel for Mr Ghimire and Ms Sharma contended that there were two errors in the reasoning by the magistrate. First, it was submitted that the magistrate misapplied the burden of proof. Second, it was submitted that the magistrate did not draw an adverse inference by reason of the failure by Karriview to call evidence from any of the material witnesses who were available to give evidence as to the hours worked by Mr Ghimire and Ms Sharma. 23 The main thrust of the submissions advanced was that Mr Quann's evidence was that he was in Port Hedland most of the time. In those circumstances, his evidence could not meet the statutory burden of disproving the allegations by Mr Ghimire and Ms Sharma as to the hours that they worked. It was said that there was no other evidence, so it could not be found that the statutory burden had been discharged. 24 The second ground was advanced to buttress the first in the sense that if any part of Mr Quann's evidence was viewed as evidence that might discharge the statutory burden, it did not do so once there was regard to the failure by Karriview to call any of those people who were available to give that evidence, particularly Mr Quann's daughter who had been living at the Lodge and Mr Quann's wife who had been there for much of the relevant time. 25 Although the notices of appeal were expressed in terms that the orders of the magistrate be set aside, in the course of submissions counsel for Mr Ghimire and Ms Sharma indicated that it was only the orders as to the amount to be paid (including the amount of pre-judgment interest) that were challenged. If the appeal was successful the order as to payment of superannuation would stand. No submission was advanced to support the making of any other orders on the appeal.

The response by Karriview 26 As noted in my earlier decision granting leave, Karriview has been served with the proceedings and through Mr Quann is aware of them: at [13]-[16]. By use of the same email address referred to in my earlier decision Mr Quann was provided with notice of the date for the hearing of the appeal. On 24 September 2019, my associate communicated with the parties concerning written submissions. Mr Quann responded by email as follows: In reference to the above please note the following: 1. Karriview Management Pty Ltd has ceased trading. 2. Karriview Management has no assets and owes a secured creditor $196,646 as at the 30th June 2019. 3. The director of Karriview Management is my daughter who lives in Margaret River with three young children. 4. Karriview Management Pty Ltd does not have the capacity to appoint a lawyer to represent the company in the matters noted above. 5. The secured creditor of Karriview Management Pty Ltd is not in a position to put up any further money. 6. Zoe Thomas the director of Karriview Management Pty Ltd not being a trained lawyer is unable to represent her company. 7. We note also that the appellants have withdrawn their claim for wages awarded to them by the magistrates court. 8. Going forward to resolve this matter can we suggest the court appoint a lawyer to assist Ms Thomas to defend this action given her financial position. 27 By that time, there had been a number of emails sent to Mr Quann but it was only at the eleventh hour that there was any response. The statement that Mr Ghimire and Ms Sharma have withdrawn their claim for wages awarded to them by the Magistrates Court is not correct. What they each seek is an order for payment of a greater amount than that ordered by the magistrate. It is not for the Court to appoint a lawyer for Karriview. That is entirely a matter for the company. It is to be expected that a company would take appropriate steps to arrange legal representation. In appropriate cases, the Court may allow an individual to represent a corporation: A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd [2018] FCA 355 at [8]-[9]. No such application was made. There was no appearance for Karriview at the hearing of the appeal. The content of the email in the context of the earlier email communications with Mr Quann and the fact that it was Mr Quann who appeared for Karriview before the magistrate demonstrated that there had been actual notice of the final hearing to a person with authority to receive that notice for Karriview. 28 In the above circumstances, counsel for Mr Ghimire and Ms Sharma sought to proceed with the hearing of the appeal on the merits. There being no reason to take a different course, the hearing proceeded.

Karriview did not discharge its burden 29 For the following reasons, I accept the submission that Karriview did not discharge the statutory burden of disproving the allegations by each of Mr Ghimire and Ms Sharma as to the hours that they worked. In those circumstances, the magistrate erred in concluding that the hours worked were less than those claimed. 30 Save for one minor respect, Mr Ghimire gave no evidence which could itself amount to a discharge of the burden on Karriview. On the contrary, he gave evidence as to hours that he worked that was consistent with the allegation he made before the magistrate. The evidence was quite specific as to what he did. He explained the way he recorded the hours he worked. His oral evidence conformed to the hours claimed save that he gave evidence that he had a break for about 1 hour on New Year's Eve. His evidence about New Year's Eve was given on the basis that he was explaining his usual duties for a typical day. The hour is not deducted from the hours allegedly worked by Mr Ghimire. They show long working days without any break. 31 As to the claim that he worked on the basis of a roster of limited hours, Mr Ghimire was asked the following question by the magistrate to which he gave the following response: Mr Ghimire, I want to put something to you for comment. The company argues that you were on a work roster and that your roster involved you working 18 hours per week, one-eight, that the hours that you worked was one hour from Monday to Friday in the morning and three and a half hours from Thursday to Sunday in the evening. That's the company argument?---(Through Interpreter) Yeah, that's what I didn't understand. I used to work like a dog, every day 18 hours a day, and then he's saying 18 hours a week. It's - it's - that's - that's what I - I don't understand. 32 Even though he accepted that there were fewer guests at certain times, his evidence was that he worked long hours on all days. In that regard, it is to be noted that there was evidence that Mr Ghimire and Ms Sharma came to work at the Lodge at a time when it was being reopened and Mr Ghimire gave evidence of doing work such as vacuuming the basketball court, mowing the lawn, using the wiper snipper, using the leaf blower, cleaning bird poo with a mop, helping his wife Ms Sharma with cleaning and laundry, setting up for each day and taking rubbish to the tip. 33 Mr Ghimire was cross-examined by Mr Quann. He accepted that there were days when there were very few guests. The line of questioning was pursued for some time, during which Mr Ghimire said 'every day I was cleaning that, um, room. So I was gardening, um, lawn mowing, doing cleaning in the yard every day'. There was no evidence from Mr Ghimire to the effect that on days when there were less guests there was less work to do. On the contrary, his evidence was to the effect that he worked long hours every day. 34 Ms Sharma gave oral evidence of the hours that she worked. She said she worked extra hours to those alleged. She described having to get up and get rooms ready whenever guests arrived. Ms Sharma described her work in the following way in the course of questions from the magistrate: Okay. And what did you - and then - yes. So you would arrive at 6.00 or 6.30 and what would you do? What sort of work, what was your duties?---(Through Interpreter) Yeah, I used to clean, vacuum, um, in every area, reception, ah, kitchen, yard - because it - it - it the place was a bushland so there were leaves everywhere. So I had to clean everything. And I used to do mopping in all areas and toilet cleaning. And, ah, once I finished the cleaning of common area then, um, I used to go to resort area for the cleaning. 35 There was no evidence given by Ms Sharma that might be described as a concession or admission of a kind that might be relied upon by Karriview to prove that Ms Sharma did not work the hours alleged. 36 Ms Sharma gave evidence that most of the time Mr Quann was not there. 37 Mr Quann was asked whether he knew what days he was actually at the Lodge. He answered 'not really'. He gave the evidence to which reference has already been made about being there 'at odds and sods times'. His evidence as to when he was actually there was vague and evasive. It fell well short of establishing a basis upon which he could give any direct evidence of the hours worked by Mr Ghimire and Ms Sharma. 38 Mr Quann's evidence about the records of the company was also evasive. He could not point to any timesheets or other records. He resorted to the following evidence when pressed: And on those, ah, those times, taking account, ah, I'm not making excuses here - is that, ah, up till 5 January it was clearly understood by everyone, Zoe, um, Debbie, who was seconded in from Geraldton, ah, Canice, ah, Yvonne and myself and indeed, ah, [Ms Sharma] and [Mr Ghimire] that they worked - worked - to work strictly to 18 hours and, ah, 15 hours, the cleaning. That was really going to maintain the thing. Once we knew, with everyone understanding with - on the understanding that that could change, that paradigm could change when - not - it wasn't if, it was going to be, ah, when [the appellants' son] flew back to Nepal, which was on the 5th. So there was a strict adherence to the 18 hours and the 15 hours, strict adherence. What do you mean by that? Who - - -?---That's - - - Who was - - -?- -Ah, Zoe - - - - - - enforcing the adherence?--- - - - Debbie - Zoe, Debbie and Canice. Who were also assisting with the cleaning in those times. 39 So it was clear from the evidence that whether there was adherence to what Mr Quann described as the work hours was a matter known to others, not Mr Quann. The evidence given by Mr Quann was plainly insufficient as a matter of law to discharge the burden of disproving the allegations as to hours worked. It could not provide a foundation for the finding ultimately made by the magistrate that Karriview had proved that Mr Ghimire and Ms Sharma had not worked some of the hours that had been claimed. There was no other evidence that might support that finding. 40 It follows that the first ground has been demonstrated. It is not necessary to consider the further claim as to the nature of the inferences that might be drawn by reason of the failure by Karriview to call evidence from other available witnesses. 41 The magistrate ought to have found that, save only for the evidence of the hour break taken by Mr Ghimire, Karriview had not discharged its burden of disproving the alleged hours. The appeal should be upheld on that basis.

Final orders 42 Counsel for Mr Ghimire and Ms Sharma provided an aide memoire that set out the hours claimed and the applicable calculations by reference to the allegations made by them. I accept the accuracy of those calculations which reflect the amounts in the Award as upheld by the magistrate. The total claimed by Mr Ghimire is $12,186.28. It is calculated on a base rate of $25.76. As I have found that there should be a deduction for a one hour break each day, the amount should be reduced by 30 hours (one hour for each day claimed), being an amount of $772.80. It should be further reduced by the amount for accommodation as found by the magistrate of $1,042.46. In the case of Ms Sharma the full amount claimed should be allowed being $9,226.38 less the accommodation amount of $1,042.46. There should be a further order for payment of pre-judgment interest at the rate determined by the magistrate of 5.5% for the period from 20 January 2017 until the date of judgment in this appeal. No orders were sought as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Fair Work Act 2009(Cth)ss 45, 539, 548, 557C, 565

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)