CITATION : 2012 WAIRC 00195 CORAM : COMMISSIONER J L HARRISON HEARD : THURSDAY, 8 MARCH 2012 DELIVERED : TUESDAY, 3 APRIL 2012 FILE NO. : B 13 OF 2012 BETWEEN : MR YASHPAL RAIZADA Applicant AND NR TAX SAVERS AND PROFESSIONALS PTY LTD Respondent Catchwords : Contractual benefits claim - Entitlements under contract of employment - Claim for payment of unpaid wages - Applicant not due wages claimed - Application dismissed Legislation : Industrial Relations Act 1979 s 7 and s 29(1)(b)(ii) Result : Dismissed Representation: Applicant : In person Respondent : Mr R Thakur Case(s) referred to in reasons: Ahern v Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (WA Branch Inc) (1999) 79 WAIG 1867 Balfour v Travel Strength Ltd (1980) 60 WAIG 1015 Belo Fisheries v Froggett (1983) 63 WAIG 2394 Hotcopper Australia Ltd v David Saab (2001) 81 WAIG 2704 Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 Waroona Contracting v Usher (1984) 64 WAIG 1500 Reasons for Decision 1 On 23 January 2012 Mr Yashpal Raizada (the applicant) lodged an application pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (the Act) claiming that he was due benefits under his contract of employment with NR Tax Savers and Professionals Pty Ltd (the respondent). The applicant is claiming $25,566.10 in wages for the period 24 March 2011 to 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 479 16 September 2011 based on earning $1,826.15 per fortnight. The respondent denies that the applicant is entitled to the wages he is claiming. Applicant’s evidence 2 The applicant gave evidence that he came to Australia in May 2009 under a 457 visa with the respondent as his sponsor. After arriving in Australia the applicant signed an employment agreement with the respondent on 11 June 2009 titled ‘Employment Agreement for Tax Consultants’ (Exhibit A1). This agreement, in part, provided the following: 5. EMPLOYEE’S HOURS OF EMPLOYMENT shall be as hereafter agreed upon with COMPANY, such hours necessarily subject to modification and [ch]ange from time to time due to the seasonal nature and fluctuation of COMPANY’S business. PROVIDED, HOWEVER, NO ADDITIONAL HOURS [S]HALL BE WORKED WITHOUT THE WRITTEN AUTHORISATION OF COMPANY. 6. The employment herein granted is casual and seasonal only, limited to the income tax filing period beginning on 1 July and ending on 31 October every year. EMPLOYEE warrants and affirms that EMPLOYEE will at no time knowingly prepare a false income tax return while employed by COMPANY, or suggest to COMPANY’S customers any information that might tend to lead them to make false statements on their tax returns. EMPLOYEE assumes full responsibility and liability for all costs and penalties that might devolve upon EMPLOYEE, the customer, COMPANY or its Nominees as a result of such fraudulent actions. COMPANY reserves the right to discharge EMPLOYEE and terminate this agreement instantly should EMPLOYEE’S services for any reason be deemed unsatisfactory. 3 The applicant gave evidence that he commenced employment with the respondent on 11 June 2009 and was terminated by the respondent by letter dated 16 September 2011. The applicant claimed that he worked on a casual, full-time basis for the respondent working 40 hours per week and his annual salary at termination was $47,479.90. The applicant gave evidence that he was employed as a Personnel Officer and taxation consultant for the respondent and his duties included office management, interviewing clients and assisting clients with taxation returns. 4 The applicant relies on a series of pay records dating from 6 June 2009 through to 23 May 2011 which confirm wages paid to him however the applicant also gave evidence that the last payment of wages he received from the respondent was on 23 March 2011 as confirmed in his bank statements (Exhibit A2). In the event it was not in contest that the last payment of wages made to the applicant was on 23 March 2011. 5 Even though the applicant’s employment agreement refers to him undertaking casual and seasonal work with the respondent the applicant maintains that he worked on a full-time basis as confirmed by his PAYG statement for the period 1 July 2009 through to 30 June 2010. The applicant gave evidence that subsequent to this date he worked on a full-time basis for the respondent along with one other employee until March 2011 when the respondent’s computer server failed. The applicant then continued to work from a home in Joondalup where he resided after Mr Ramesh Thakur, the respondent’s principal, told him to undertake his duties from there. The applicant gave evidence that whilst at home he undertook the same duties as he previously undertook for the respondent and he occasionally worked in the respondent’s office if the respondent was busy. The applicant stated that in mid August 2011 Mr Thakur approached him to take unpaid leave but he refused to sign a document to this effect. The applicant gave evidence that he worked for the respondent without pay from March 2011 until approximately 10 August 2011 given his family relationship with Mr Thakur and Mr Thakur had promised to pay him at a later date. 6 The applicant stated that on or about 16 September 2011 he received a letter of termination in the mail (Exhibit A5). This letter reads as follows (formal parts omitted): I am writing to notify you that our company is not doing well in terms of sales and profit. As you know, due to the global economic crisis, company is also facing liquidity crisis. Sales dropped dramatically. Many clients left our Business after Neena’s Death. We tried to bust up business but the business still in loss position. At this situation business cannot employ you. It is decided that your services are no longer required for the company. It is the notice of termination of your services effective from the date of issue of this letter. We appreciate you for the services you provided. 7 Under cross-examination the applicant maintained that an office was set up at the house where he resided for him to undertake work for the respondent and when he worked from there he dealt with approximately 200 clients from the Joondalup area and the applicant stated that he obtained client details from information contained on his sister’s phone. The applicant stated that he sent information to the respondent’s office about clients he dealt with and the respondent received income arising out of this work. The applicant maintained many invoices were sent out by the respondent in relation to work he completed but he did not have copies of them. Respondent’s evidence 8 Mr Thakur stated that the applicant was employed as a Personnel Officer and taxation consultant and in this role he undertook administrative work, he interviewed international clients for overseas recruitment and he did taxation consultant work. Mr Thakur stated that when the business he conducted along with his wife declined after the applicant arrived in Australia the applicant was then employed to undertake casual, seasonal work as a tax consultant. After his wife’s death in October 2010 there was a further decline in work undertaken by the respondent and due to this decline Mr Thakur told the applicant not to come to work in December 2010 and even though the applicant was not required to work and did not work after December 2010 Mr Thakur paid him his normal wages and superannuation entitlements to the end of March 2011 because he was a relative. 480 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 9 Mr Thakur gave evidence that no work was undertaken at the respondent’s office after December 2010 because the server was down. Mr Thakur also stated that the applicant was never told to work at a home office and Mr Thakur stated that there is no home office at the house where the applicant resided. 10 Mr Thakur stated that the pay records relied upon by the applicant were generated by him, no invoices existed with respect to the work the applicant claimed he undertook nor was any income received by the respondent for any work undertaken by the applicant once he ceased working at the respondent’s office in December 2010. Mr Thakur agreed that the applicant had access to his wife’s phone and this was returned to him in July 2011. 11 Mr Thakur stated that he did not terminate the applicant in December 2010 as this would have impacted on his 457 visa status and it was only after enquiries were made by the Department of Immigration in August 2011 that he requested that the applicant go on unpaid leave. Mr Thakur stated that when the applicant refused to do so he was advised that he should terminate the applicant which he did by letter dated 16 September 2011. Applicant’s submissions 12 The applicant submits that he undertook the work covering the period that he is claiming and is entitled to be paid the wages for this period and if there was no work available to be undertaken during this period he should have been terminated in December 2010 or March 2011. Respondent’s submissions 13 The respondent maintains the applicant did not work during the period he is claiming wages for and he is therefore not entitled to be paid this quantum. Findings and conclusions Credibility 14 I closely observed the applicant and Mr Thakur whilst giving evidence and listened carefully to the evidence they gave. In my view the applicant was not as forthcoming as he could have been about the nature of the work, if any, he undertook after December 2010. Furthermore, the applicant had no documentation confirming work he claimed he completed after December 2010. Pay records the applicant relies upon to confirm his employment with the respondent cover a period subsequent to the date he maintains he ceased receiving wages from the respondent, which I find adversely impacts on his credibility (see Exhibit A2). I also find that the applicant’s evidence about when he ceased working for the respondent was not convincing. In the circumstances, I have doubts about the veracity of the evidence given by the applicant. On the other hand I find that Mr Thakur was very clear and direct when giving his evidence, his evidence was consistent and he made concessions where appropriate. I therefore prefer the evidence given by Mr Thakur where there is any discrepancy in the evidence between the applicant and Mr Thakur. 15 In determining whether or not a contractual entitlement is due to the applicant the onus is on the applicant to establish that the subject of the claim is a benefit to which he is entitled under his contract of employment. It is for the Commission to determine the terms of the contract of employment and to ascertain whether the claim constitutes a benefit which has been denied under the contract of employment, having regard to the obligations on the Commission to act according to equity, good conscience and the substantial merits of the case (Belo Fisheries v Froggett (1983) 63 WAIG 2394; Waroona Contracting v Usher (1984) 64 WAIG 1500; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307). 16 The claim before the Commission is one for an alleged denial of a contractual benefit and the law as to these matters is well settled. For an applicant to be successful in such a claim a number of elements must be established. The claim must relate to an industrial matter pursuant to s 7 of the Act, the claimant must be an employee, the claimed benefit must be a contractual benefit that being a benefit to which there is an entitlement under the applicant’s contract of service, the relevant contract must be a contract of service, the benefit claimed must not arise under an award or order of this Commission and the benefit must have been denied by the employer: Hotcopper Australia Ltd v David Saab (2001) 81 WAIG 2704; Ahern v Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (WA Branch Inc) (1999) 79 WAIG 1867. The meaning of ‘benefit’ has been interpreted widely in this jurisdiction: Balfour v Travel Strength Ltd (1980) 60 WAIG 1015; Perth Finishing College Pty Ltd v Watts. 17 There is no issue in this matter and I find that the applicant was employed by the respondent under a contract of service and I find that this claim is an industrial matter for the purposes of s 7 of the Act as it relates to payments the applicant claims are due to him arising out of his employment with the respondent. There was also no evidence that the benefits the applicant is claiming arise under an award or order of this Commission. The issue to be determined therefore is whether the applicant is entitled to the wages he is seeking as provided for in his contract of employment with the respondent for the period he claimed he worked for the respondent and was not paid. 18 It was not in dispute and I find that the applicant commenced employment with the respondent on 11 June 2009 under a written contract of employment under a 457 visa status and he undertook personnel and taxation consultant duties for the respondent as well as interviewing international clients for overseas recruitment. It was also not in dispute and I find that the applicant was not paid for the period he is claiming wages for, that is, between 24 March 2011 and 16 September 2011 and the respondent sent a letter to the applicant terminating him on or about 16 September 2011 (see Exhibits A1 and A5). 19 Even though the applicant was not formally terminated by the respondent until 16 September 2011 and the applicant appears to have had an ongoing contract of employment with the respondent until this date I find that the applicant has not demonstrated that he completed work for the respondent from December 2010 to March 2011 in the respondent’s office and from a home office after this date up to 16 September 2011 undertaking duties for and on behalf of the respondent at Mr Thakur’s direction. I find that the respondent’s circumstances changed after October 2010 and the respondent’s business declined significantly at this time due to economic factors and the death of Mr Thakur’s wife. I find that as a result as at December 2010 the respondent had no work for the applicant to undertake and I find that because of this Mr Thakur asked the applicant not to 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 481 attend work in December 2010. I find that the applicant accepted this and this resulted in a consensual variation to the applicant’s contract of employment with the respondent to this effect. Additionally, I find that Mr Thakur did not then direct the applicant to undertake work from home on behalf of the respondent, nor did he do so for the period March 2011 through to September 2011. I find that Mr Thakur continued to pay the applicant his normal wages up to March 2011 even though the applicant did not undertake any work for the respondent after December 2010 and I find that he did so to assist him and to help him retain his visa. Whilst Mr Thakur should have terminated the applicant before 16 September 2011 I find that the respondent did not do so to assist the applicant and the respondent only terminated the applicant after inquiries were made by the Department of Immigration with respect to the applicant’s status and after the applicant declined to formally accept taking unpaid leave from the respondent. 20 I have found that the applicant accepted that he was not required by the respondent to undertake any duties after December 2010 and the applicant has not demonstrated that he worked during the period from 24 March 2011 to 16 September 2011. The applicant is therefore not due the wages he is seeking and this application will be dismissed. 2012 WAIRC 00194 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR YASHPAL RAIZADA APPLICANT -v- NR TAX SAVERS AND PROFESSIONALS PTY LTD RESPONDENT CORAM COMMISSIONER J L HARRISON DATE TUESDAY, 3 APRIL 2012 FILE NO/S B 13 OF 2012 CITATION NO. 2012 WAIRC 00194 Result Dismissed Representation Applicant In person Respondent Mr R Thakur Order HAVING HEARD Mr Y Raizada on his own behalf and Mr R Thakur on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be and is hereby dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2012 WAIRC 00159 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION