100315453

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES APIROM KAEW-ARD

CLAIMANT

 -v-

 SAWASDEE PTY LTD

RESPONDENT

CORAM G CICCHINI IM

DATE THURSDAY, 6 FEBRUARY 2003

FILE NO/S M 193 OF 2002

CITATION NO. 2003 WAIRC 07645

_______________________________________________________________________________

Result Claim proved, amount awarded with interest, penalty imposed.

Representation

Claimant Mr D Clarke as agent

Respondent Mr M Sutherland of counsel

_______________________________________________________________________________

Reasons for Decision

Pleadings

1         On 11 June 2002 Mr Apirom Kaew-Ard filed his claim in this Court alleging a failure on the part of the Respondent, which at the material time traded as the Dusit Thai Restaurant, to comply with the Restaurant, Tearoom and Catering Workers’ Award 1979 No R 48 of 1978 (the Award).  The Claimant sought the payment of $68,841.26 together with pre-judgment interest thereon.  The Claimant also sought the imposition of a penalty.

2         By its response, filed on 14 June 2002, the Respondent denied the claim and said that the Claimant was not entitled to any amount.

3         On 29 July 2002 the Claimant filed his amended particulars of claim.  It was alleged within those particulars that the Respondent employed the Claimant from 28 September 1996 to 31 July 2000 in the capacity of a full time chef.  The Claimant alleged that the Respondent failed during the period of his employment to pay to him appropriate wages and overtime in accordance with the provisions of clauses 10 and 21 of the Award that bound the Respondent.  The Claimant alleged 94 specific breaches.

4         By its response the Respondent alleged that the Claimant’s employment commenced on 1 October 1996 and not 28 September 1996 as had been alleged.  The Respondent admitted that the Award bound the parties and that the Claimant worked as a full time chef for the Respondent, being a classification within the Award.  The Respondent denied, however, that it breached the Award as alleged.

5         On 31 October 2002 the Claimant re-amended his particulars of claim.  By his re-amended particulars of claim he alleged additional breaches of the Award.  In that regard the Claimant alleged that the Respondent breached clause 9(2) of the Award by failing to pay to him the appropriate Saturday and Sunday loading.  The Claimant revised the alleged total underpayment and reduced his claim to $66,342.76.  The Claimant alleged that the Respondent committed 251 separate breaches of the Award.

6         By its amended response filed 11 November 2002 the Respondent denied the Claimant’s further allegations as contained in his re-amended particulars of claim.

7         At the commencement of the hearing, Mr Sutherland, for the Respondent, informed the Court that his client would not deny that it had over the material period inadvertently underpaid the Claimant $7,745.00.  However, it continued to deny the claim.

Burden and Standard of Proof

8         The Claimant bears the onus of satisfying this Court on the balance of probabilities that the Respondent failed to comply with the Award with respect to each alleged breach.

Witnesses

9         The Claimant relies on his own testimony and that of his former work colleague, Mr Christopher Daniel Frances, together with that of his agent, Mr Damian Clarke, to establish his claim.

10     The Respondent, in resisting the claim, called its director, namely, Mr Somkiat Chanlongsirichai (hereinafter referred to as Somkiat), its accountant Mr Charlie Sam Napoli and its employees, namely, Ms Pornphit Gutheri, Ms Kanyarat Hanrahan and Mr Prasrt Nrlprakobkul.  The Respondent also called Mr John Douglas Gregory, a handwriting expert, concerning various documents produced by or on behalf of the Claimant.

Evidence

Apirom Kaew-Ard

11     The Claimant testified that he gained employment with the Respondent in 1996.  At that time he was a resident of Thailand.  He gained employment following meeting with Somkiat in Thailand who agreed to sponsor him to Australia.  It was agreed that the Claimant would work at the Respondent’s restaurant during the period of his sponsorship.  He told the Court that he arrived in Australia on 27 September 1996 and commenced working the very next day.

12     The Claimant told the Court that he kept a record of his hours worked since he started working for the Respondent in 1996.  He kept a record in his diary of all hours worked from 1996 to about October 1999.  In about October 1999 he copied all of those entries from his diary into a notebook (exhibit 4).  Thereafter he continued to record his work times in that book.  He said he wanted just one book that contained all the relevant information.  He told the Court that he accurately transferred the information from his diary into the book.  He said the start and finish times as contained within the book are accurate.  He also said that he checked the book to ensure its accuracy before the diary was discarded.

13     The Claimant conceded that in the initial process of transfer of information from the diary to the book he did make some errors.  However, he corrected those errors.  The errors made did not relate to start and finish times and the times recorded within the book accurately reflect his hours of work.  He said that he is sure that he worked the hours recorded.

14     The Claimant testified about his usual working times.  He said that he started work at the Dusit Thai Restaurant in Northbridge at 10.30 am and would work until 3.00 pm, at which time he would have a two and a half hour break, recommencing at 5.30 pm.  He would thereafter work until anytime between 11.00 pm and midnight.  He told the Court that he did not work on Mondays as the restaurant was usually closed.  He did, however, work on weekends.  The Claimant was taken to testify about the Wages Record Book, discovered by the Respondent, relating to the Claimant’s employment (exhibit 6).  That record produced indicates that for the period 22 June 1998 through to about August 2000 the Claimant acknowledged having worked 76 hours per fortnight.  In that regard the Claimant said that when he signed the document in each instance he simply signed acknowledging the net payment received for the relevant period.  He said that at the time of his signing the document, there was no entry relating to the hours worked, total earnings or tax.  Indeed those columns were blank.  The Claimant maintains that he worked in the order of about 60 to 70 hours per week rather than 76 hours per fortnight.  He said that the Respondent’s contention that he worked 38 hours per week is simply not true.

15     The Claimant was cross-examined concerning his start date.  He said in that regard that he arrived in Australia at 5.00 pm on 27 September 1996 and started working the very next morning at 10.30 am.  He recalled that day to be a Saturday.

16     The Claimant was also cross-examined concerning the transfer of information from his diary to the book and the disposal of the diary.  He said that the transfer occurred just prior to his shifting house, which occurred on 3 November 1999.  He told the Court that because the diary was very old he threw it out.  He said that because he had transferred all the information from one to the other, he could see no difficulty in doing that.

17     As to the entries within exhibit 4, the Claimant explained that only he and his wife had made entries within the same.  It was put to him in that regard that Mr Gregory (a handwriting expert engaged by the Respondent with respect to this matter) found that the entries within the book were made by five different authors.  He explained in response that that might have resulted from his use of different styles of writing.

18     The Claimant was taken to exhibit 9.  Exhibit 9 is a compilation of a copy of the original of exhibit 4 as it is now (comprising page “A” in each instance), compared to how it was when a copy of the same was given to Mr Sutherland by Mr Clarke on or about 29 July 2002 (comprising page “B” in each instance).  It suffices to say that Mr Sutherland drew to the attention of the Claimant numerous inconsistencies between the two.  The Claimant was taken to those inconsistencies in each instance.  I set out hereunder in each instance the inconsistencies highlighted and the response given by the Claimant with respect to the same.  I will follow the order in which the inconsistencies were addressed under cross-examination.

19     January 1997 (pages 5A and 5B):  The entry for 26 January as reflected on page 5B is different to that contained on page 5A.  It is apparent that the entry was whited out in the original book.  The Claimant’s explanation in that regard is that he did it so that the entry appears neater.  The incorrect entry for that day was deleted.

20     July 2000 (pages 47A and 47B):  The entries in the far right hand column for 6 July are inconsistent.  The Claimant admitted altering the number “6” to “7” but had no explanation why the two “7’s” were entered differently.

21     August 2000 (pages 48A and 48B):  The entries in the far right column of page 48B were conceded by the Claimant not to be his.  His were the entries on page 48A.  It is obvious that the writing on page 48A and that on 48B are different.  The Claimant could not explain who wrote on the copy.

22     September 2000 (pages 49A and 49B):  The writing in the far right hand column is inconsistent.  The entry in the original (49A) is not the same as that on the copy (49B).  The Claimant could not account for the discrepancies.

23     October 2000 (pages 50A and 50B):  The Claimant could not explain the inconsistency between the original and the copy.  The copy had entries in the right hand column not contained on the original (50A).  The Claimant could not explain how that occurred.

24     October 1996 (pages 2A and 2B):  The entry in the right hand column is different in the original when compared to the copy.  An entry has been circled on the original and Thai writing added.  The Claimant said that he made that entry in about October 1999 but was at a loss to explain why it is not shown on the copy.  The Claimant surmised that someone might have erased the entry from the copy (2B).

25     July 1997 (pages 11A and 11B):  There are a number of inconsistencies between the original (11A) and the copy (11B) including deletions and alterations to the original document.  The Claimant conceded having made the changes in 1999.  He was asked to explain, if that was the case, why it was that the copies given to Mr Sutherland on 29 July 2002 did not contain those changes.  The Claimant could not offer an explanation in that regard.

26     August 1997 (pages 12A and 12B):  The original (12A) contains certain entries and deletions not found on the copy (12B).  The Claimant testified that he made the entries and deletions in October 1999 and/or in the year 2000.  He could not explain why the copies given to Mr Sutherland by Mr Clarke in July 2002 did not contain the same.

27     September 1997 (pages 13A and 13B):  The Claimant was taken to a number of apparent variations between the original and the copy relating to the final column.  It suffices to say that the Claimant could not explain why the copy was different except to speculate that the copy (13B) is not a true copy.

28     October 1997 (pages 14A and 14B):  The Claimant was taken to certain additions and a deletion that are contained in the final column of the original but which do not appear on the copy.  He again challenged the authenticity of the copy but was otherwise unable to explain the same.

29     November 1997 (pages 15A and 15B):  There were a number of apparent additions and deletions in the final column of the original not found on the copy (15B).  The Claimant said he made those additions and deletions after October 1999.  He was asked why he made the alterations.  He said in that regard:

“I just check everything from the beginning. …Maybe I copy it wrongly. …Maybe I copy it down wrongly.”

(See transcript page 59)

30     He was otherwise unable to explain away the inconsistencies.

31     February 1998 (pages 18A and 18B):  There are several additions and deletions found within the original not contained in the copy.  The Claimant could not explain the discrepancies.

32     March 1998 (pages 19A and 19B):  There were several additions and deletions found on the original when compared with the copy.  Again the Claimant was unable to explain the same.

33     April 1998 (pages 20A and 20B):  There are several additions and deletions noted on the original when compared to the copy.  The Claimant was not, however, asked to comment about the same.  During cross-examination with respect to the April entries the Claimant was shown the restaurant’s booking diary for April 1998.  The diary (exhibit 13) shows that the restaurant was closed on 27 April 1998 yet the Claimant’s record is that he worked on that day.  In explanation, the Claimant said he had to go to work on that day despite the fact that the restaurant was closed.  He said that he worked at the direction of Somkiat.  When pressed as to whether he had an actual memory of that day he said that he did not.  He explained that he went to work on numerous occasions when the restaurant was closed.  He saw that as part of his obligations, given that he was here under the sponsorship of Somkiat.  The Claimant was asked why it was, given that the restaurant was closed, that he worked in two shifts on that day.  His response to that was that he just followed routine orders.  In that regard the Claimant testified that whereas there may have been flexibility in the working conditions of other employees, there was none in his situation.

34     It was put to the Claimant that he merely “filled in the book (exhibit 4) like a printing machine to maximise his position”.  In that regard he was taken to the booking diary (exhibit 13) for the period 22 June 1998 to 7 July 1998 inclusive.  It shows that the restaurant was closed during that time.  Exhibit 4 indicates that the Claimant worked on the days within that period.  The Claimant said that he worked as a labourer during such time on the new restaurant premises to which the restaurant was to relocate.  It was put to the Claimant that it would be difficult to accept that he carried out labouring duties in shifts consistent with the shifts he worked as a chef, that is, with a break during the day.  In response the Claimant maintained that his evidence was true and that he really did work two separate daily shifts performing labouring work.

35     May 1998 (pages 21A and 21B):  There are certain additions and deletions on the original with respect to entries in the final column not found on the copy document.  The Claimant conceded having made those entries sometime after October 1999.  He denied making them after 29 July 2002.  The Claimant was otherwise unable to explain away the inconsistencies.

36     June 1998 (pages 22A and 22B):  Again there were additions and deletions on the original document not found on the copy.  The Claimant admitted having made those changes sometime after October 1999 but not after 29 July this 2002.  He could not otherwise explain the differences between the original and the copy.

37     August 1998 (pages 24A and 24B):  There are certain additions and deletions on the original (24A) as compared to the copy.  The Claimant said he made those changes sometime after October 1999, possibly in the year 2000.  He said that he, in changing them:

“just followed through from …to say ‘Oh, this one not true’, so this one … so I just … I did not change the working time.”

(See transcript page 76)

38     It is clear that the Claimant changed the entries in the final column because they did not reflect the true position.  He maintained, however, that he did not change the start and finish times.  He claimed accuracy in those.

39     September 1998 (pages 25A and 25B):  There are additions and deletions on the original document not found on the copy.  The Claimant admitted making the changes about the same time as the other changes.  He could not explain, however, why the copy varied from the original.

40     October 1998 (pages 26A and 26B):  The circumstances relating to entries for October 1998 are similar as for September 1998.  The Claimant’s response in that regard is also similar.

41     November 1998 (pages 27A and 27B):  The copy (27B) and the original (27A) are different.  The original contains certain deletions and additions not found on the copy.  The Claimant agreed that he made certain alterations to the original but said that he did not make the alterations following 29 July 2002.  He could not otherwise explain away the copy being inconsistent.

42     The Claimant was taken to the entries for 15-18 November 1998.  He was asked to compare them with the booking diary entries for the same day (exhibit 13).  The diary entries indicated that the restaurant was closed on those days on account of relocation.  The Claimant said that notwithstanding that the restaurant was closed he nevertheless attended work on those dates at the times recorded in the book (exhibit 4).  He was challenged as to the accuracy of his entries.  It was put to the Claimant that although it may have been the case that he worked during the day in relocating the restaurant, it certainly was not the case that he worked at night.  The Claimant, however, maintained that he worked on those days during the times recorded in his book.

43     The Claimant was asked to compare the booking diary entry for 23 November 1998 with the entry in exhibit 4 for that day (see 27A and 27B of exhibit 9).  The diary indicates that the restaurant was closed on that day.  However the Claimant maintains that not only did he work that day, but also worked during the shifts indicated in his book.  He could not, however, recall exactly what it was that he did that day.

44     The Claimant was next taken to the entry in the original (27A) for 19 November.  The original contains Thai writing.  The copy does not.  The Claimant denied making the entry after 29 July 2002.  The Claimant surmised that the copy had somehow been tampered with.  Other than that he could not otherwise explain the differences.

45     December 1998 (pages 28A and 28B): There are obvious differences between that contained on the original (28A) and that found on the copy (28B).  The Claimant admitted changing the original in about October 1999 but could not explain why the same does not appear on the copy document.

46     January 1999 (pages 29A and 29B): There are certain deletions and entries contained within the original (29A) not found on the copy.  In particular the entry for 26 January, on the copy, shows that the Claimant worked that day.  The entry on the original shows that there has been a whiting out of the original entry.  In its place the word “closed” has been entered.  The Claimant admitted making the changes some time after October 1999 but not after 29 July 2002.  The Claimant could not otherwise account for the copy document.

• February 1999 (pages 30A and 30B)
• March 1999 (pages 31A and 31B)
• April 1999 (pages 32A and 32B)
• May 1999 (pages 33A and 33B)
• June 1999 (pages 34A and 34B)
• July 1999 (pages 35A and 35B)
• August 1999 (pages 36A and 36B)
• September 1999 (pages 37A and 37B)
• October 1999 (pages 38A and 38B)
• November 1999 (pages 39A and 39B)
• December 1999 (pages 40A and 40B)
• January 2000 (pages 41A and 41B)

47     There are certain additions and deletions and entries contained within the original for each aforementioned month not found on the copy for each month.  The Claimant admitted making those some time after October 1999 but not after 29 July 2002.  He could not otherwise explain why the copy is different in each case.

• February 2000 (pages 42A and 42B)
• March 2000 (pages 43A and 43B)

48     Certain additions are found on the original (A) as opposed to what is contained on the copy (B).  Such an example is found with respect to the entry for 12 March 2000 (page 43A).  The entry has been altered to read “sick” for the afternoon shift whereas the copy shows the Claimant having worked that afternoon.  The Claimant admitted making the change.  He said, however, that he made the change at about the time of the entry, that is, about one month later (see transcript page 96).  He was asked to explain why the copy varied.  He could not explain that away.  In that regard it was put to him that the change occurred between the time copies of the original book were made available to Mr Sutherland on 29 July 2002 and the time that the book was delivered up for inspection by Mr Gregory.  The Claimant denied that saying:

“I can tell you the truth, that I did not change anything recently.”

(See transcript page 93)

49     It was also put to the Claimant that he kept two separate sets of books.  He denied doing so.

50     The Claimant explained that from early 2000 he made entries directly into exhibit 4.  He did that by writing down his start and finish times on pieces of paper and later returning to enter the details into the book.  Sometimes the entries were made after about a month from the date of having worked.  The pieces of paper were subsequently thrown away.

51     April 2000 (pages 44A, 44B1 and 44B2): The original (44A) has Thai writing on it.  A copy of it (44B1) does not.  A further copy of it (44B2) however does have Thai writing on it.  The Claimant was called upon to explain how it was that the two copies of the same document handed over by Mr Clarke on 29 July 2002 differed.  He could not explain how that came to be.  He explained that he made the entry in or about April 2000.  Thereafter, in about June 2000, he handed over his book to Mr Clarke.

52     It was put to the Claimant that the only possible explanation to account for the differing documents is that he gave the book to Mr Clarke who made copies of the same and thereafter the Claimant made his further entries.  That contention was rejected.

53     The Claimant was also challenged concerning the compilation of exhibit 4.  It was put to him that in other court proceedings he had stated that he had filled out the book in his car.  That is inconsistent with having kept the book at his home and completing the entries from pieces of paper.  In that regard the Claimant explained that he sometimes filled in the book at home and sometimes whilst in the car.

54     May 2000 (pages 45A and 45B): The Claimant was asked to explain why the finish time of 3.00 pm is found on the original but not on the copy for the entry on 30 May 2000.  The Claimant could not explain why the copy was different.

55     June 2000 (pages 46A, 46B(1) and 46B(2): The original differs from the incomplete copy (46B(1)).  The Claimant’s explanation in the regard is that a copy of his book was given to Mr Clarke in about June 2000.  Following its return to him he finalised his entries for June and made the entries now reflected on pages 46A and 46B(2).  The Claimant denied having made any recent changes to the book (exhibit 4).

56     May 1997 (pages 9A and 9B): The entries reflect that the Claimant worked on 18 May 1997.  The Claimant was then shown the booking diary for 1997 (exhibit 12) and asked to comment on the fact that the diary shows that the restaurant was closed that day.  The Claimant maintained that he worked the shifts indicated notwithstanding that the restaurant was closed.

57     June 1997 (pages 10A and 10B): The entries indicate that the Claimant worked two shifts on that day.  The booking diary indicates that the restaurant was closed for renovation on that day.

58     November 1997 (pages 15A and 15B): The entry for 24 November 1997 indicates that the Claimant worked his normal shifts.  The booking diary indicates that the restaurant was closed for a Buddhist ceremony on that day.  In explanation, the Claimant said that he worked all day preparing food for the Buddhist monks.

59     December 1997 (pages 16A and 16B): The entries indicate that the Claimant worked two shifts on 26 December 1997.  The booking diary indicates that the restaurant was closed that day for pest control.  The Claimant said that he recalled going to work on that day.  Spraying was being conducted externally.  However the strong smell which made its way into the restaurant almost made him faint.  He recalls working that day because Somkiat was anxious to ensure that everything was prepared for the next day, a Saturday.

60     The Claimant was next cross-examined concerning the rosters.  It suffices to say that his evidence in that regard was, to say the least, confusing.  Little can be made in respect of that issue.

61     The Claimant was also cross-examined concerning time sheets (exhibit 8) relating to the period from August 2000 until the end of his employment with the Respondent.  They show that he worked 76 hours per fortnight during that period.  The Claimant agreed that he worked between the times and for the hours at shown thereon.  It was suggested to the Claimant that the hours denoted in exhibit 8 reflected the actual times that he worked throughout and that it was nonsense for him to suggest that he worked the extraordinary hours that he claimed he worked.  The Claimant maintained that it was not nonsense at all.  He was obligated to work all those hours because of the fact that he was under a sponsorship arrangement.

62     Finally, the Claimant was further cross-examined concerning the wages record contained in exhibit 6 by which he acknowledged inter alia that he worked 76 hours per fortnight.  In that regard he maintained that the full details, including work hours, were not contained on the documents when he signed the same.

63     In re-examination the Claimant was taken to pages 29A and 29B of exhibit 4.  The Claimant stated that his amendment to the original had the effect of reducing the hours claimed for that month.

Christopher Daniel Frances

64     The Respondent employed Mr Frances as a Entrée Chef between November 1998 and December 1999. He worked with the Claimant during the course of his employment with the Respondent.

65     Mr Frances testified that he usually worked 10 shifts comprised of 4 lunch shifts and 6 dinner shifts.  He was required to work on Sundays.  His hours comprised 10.30 am until 3.00 pm for lunch shifts and 5.30 pm until 10.00 pm or 11.00 pm or alternatively the close of the kitchen for dinner shifts.

66     Mr Frances testified that “everyone” started and finished at the same time.  Everyone worked the same hours.  Mr Frances himself worked an 11-hour day.  He worked between 60 and 70 hours per week.  He usually had Mondays off.  Sometimes he had Wednesday lunch or Saturday lunch off.  He said that the Claimant always worked with him during those times.  He said he never signed any document acknowledging the hours he worked.

67     Mr Frances also testified that the Respondent provided meals free of charge to its employees.

68     When cross-examined it was suggested that he, along with others, worked 76 hours per fortnight and not 60 to 70 hours per week as suggested.  Mr Frances rejected that contention and reaffirmed the evidence that he gave in chief.  It was suggested to Mr Frances that the working hours were flexible.  He disagreed, however, saying that starting times were strictly enforced.

Damian James Clarke

69     The final witness called by the Claimant was his agent, Damian Clarke.

70     Mr Clarke testified that exhibit 4 was used in proceedings before Commissioner Smith of the Western Australian Industrial Relations Commission in about October 2000 with respect to unfair dismissal proceedings brought by another former employee of the Respondent.  Various copies of the book were accordingly made for those purposes.

71     Mr Clarke informed the Court that he made Mr Sutherland aware that he had made his own entries pertaining to gross wage and pay rises.  He did not attempt to hide or distort anything.  There was no fabrication.

72     When cross-examined, Mr Clarke explained that exhibit 4 had travelled between himself and the Claimant on a number of occasions since 2000.  He confirmed that he photocopied the book on a number of occasions at various locations.  He said that the book was returned to the Claimant and that the Claimant had the opportunity to deal with the book.  He also confirmed that he was not responsible for alterations to the book in the form of whiting out entries.

73     Mr Clarke told the Court that he never wrote in the book (exhibit 4).  The only document he wrote on was the photocopied document.  That photocopy with his writing was copied and given to Mr Sutherland.  He said that he:

“did not state that it was an original.”

John Douglas Gregory

74     Mr Gregory is a forensic document examiner possessing the requisite qualifications and experience.  He examined both exhibit 4 and photocopies of exhibit 4 which had been handed over to Mr Sutherland by Mr Clarke on 29 July 2002.

75     In his examination of those documents Mr Gregory identified 5 fabricated documents.  They consisted of the following entries:

• 26 January 1997 (pages 5A and 5B of exhibit 9):

The crossed out times shown on the copy have been obliterated on the original.

• July 2000 (pages 47A and 47B of exhibit 9):

The numeral seven in the right hand column adjacent to the entries for 6 July has been entered differently in each instance.

• August 2000 (pages 48A and 48B of exhibit 9):

The figures in the right hand column are different in that there is one author for the original and another for the copy.

• September 2000 (pages 49A and 49B of exhibit 9):

The figures in the right hand column are different in that there is one author for the original and another for the copy.

• October 2000 (pages 50A and 50B of exhibit 9):

There are certain entries found in the right hand column of the copy not found on the original.

76     Mr Gregory thereafter went on to highlight certain deletions, alterations and additions made to the notebook (exhibit 4) after the creation of the photocopies of the same.  He identified those to have occurred for the month of September 1996 and every consecutive month from and including July 1997 to and including June 2000.

77     The examination of the notebook revealed that five authors made the entries (see transcript pages 146 and 147).  In his evaluation, Mr Gregory said:

“...Given the handwritten entries in the name of Apirom Kaew Ard, the page headings, the date numerals and the entries for the days were written by different authors, and the submission of fabricated photocopied documents purporting to be true reproductions of pages in the notebook, it is more likely that the notebook entries were written at a time other than as a contemporaneous record from September 1996 to October 2000 as alleged by a single author.

The numerous alterations to the entries in the notebook after the photocopied documents were produced is further evidence that the document was not prepared contemporaneously as any alterations to the entries could have been effected at the time these entries were initially written.

Result of the examination.  As a result of my examination I am of the opinion, having regard to the deletions, alterations, additions, different authors and the production of fabricated photocopied documents, the Belgrave notebook” – that should read Q1 – “is not consistent with having been prepared as a contemporaneous record for the period from September 1996 to October 2000 as alleged, but prepared at various times en bloc as evidenced by different authors contributing to the production of the document.  No conclusion can be given to the dates of preparation other than to comment at some time in this matter when photocopied documents were requested that the entries for June 2000 were only partially completed.”

(Transcript pages 147 and 148)

78     Further, Mr Gregory testified that as a result of his examination of the record compared to known examples of Mr Clarke’s handwriting he could conclude that the writing on certain copied documents, such as that for August 2000, revealed that the entries in the right hand column were, in fact, made by Mr Clarke.

79     When cross-examined, Mr Gregory said that he could not dispute that the Claimant was the author of the entries in the time in and time out columns of the notebook.  He conceded that a single author made those entries.

80     Mr Gregory told the Court that it is possible for one person may write in different styles.  Accordingly, it is possible for the five authors referred to in his report to be, in fact, only one person.

81     When re-examined, Mr Gregory testified that in his opinion that it was more likely that different authors made the entries within exhibit 4 rather than the entries being made by one person who just used differing styles of handwriting.  He was of that opinion because the construction appears to be totally different.

Charlie Sam Napoli

82     Mr Napoli is a Chartered Accountant who was instructed to prepare a report in relation to this matter.  The report was tendered in evidence (see exhibit 11).

83     Mr Napoli told the Court that he prepared his report based on the Claimant having worked 76 hours per fortnight from 1 October 1996 until 20 June 2000.  On his calculations, the Claimant should have been paid $94,199.00 but the group certificates revealed payments of only $86,454.00.  Accordingly, there has been a shortfall of $7,745.00.  During the course of his testimony he explained the method of his calculations.

84     When cross-examined, Mr Napoli conceded that his calculations with respect to hours worked were founded upon the information contained in exhibit 8.  He said that he was instructed that the Claimant’s work times during the entire period of his employment were the same as those set out in exhibit 8.

85     Mr Napoli was also cross-examined as to whether he referred to the relevant provisions of the Western Australian Industrial Gazette for the purposes of making his calculations.  He replied that he had not and that he simply relied upon the relevant rate applicable for the relevant period.  Mr Napoli also conceded that in making his calculations he did not have regard, for example, to the award provisions relating to weekend work.  He conceded that he made certain assumptions in his calculations given that he was not provided with relevant documentary evidence such as in the case appertaining to annual leave.

Somkiat Chanlongsirichai

86     Somkiat is the Director of the Respondent.

87     The Respondent has operated the Dusit Thai Restaurant since 1988.  Somkiat described it as being an up market restaurant.

88     Somkiat told the Court that in July 1996 he visited Thailand and met with the Claimant.  He agreed to sponsor the Claimant to migrate to Australia.  He said that he, at that time, explained to the Claimant that he would be working approximately 76 hours per fortnight and that he would be required to do shift work.  He told the Claimant that meals would be provided and that Somkiat would pay for his visa and visa renewals and also some medical expenses that might be incurred during the currency of his employment.

89     Somkiat testified that the Claimant arrived in Australia on 27 September 1996 and commenced work on 1 October 1996.  He said that between his arrival and 1 October 1996 the Claimant merely familiarised himself with the restaurant but did not actually work.

90     Somkiat told the Court that he has hands on involvement with the restaurant in managing it.

91     He said that the chefs only carry out cooking duties and other duties normally associated with being a chef.  The only time that chefs were required to do other work was when the restaurant moved location some one hundred metres away.  On that occasion the chefs moved the kitchen equipment from one location to another.

92     Somkiat informed the Court that the restaurant was, at the material time, open for lunch Tuesday to Friday between 11.00 am and 3.00 pm.  Currently it only opens for lunch on Thursdays and Fridays.  The restaurant is also open for dinner Tuesday to Sunday and closed on Monday.  The dinner shifts are between 5.45 pm until 10.30 pm.  However there is flexibility in those times.  In quiet periods such as just after New Year and mid winter, chefs are permitted to leave early in circumstances where the workload is less.

93     Somkiat explained that the Respondent employs between 5 and 7 chefs with each working on a rotational basis 5 days a week.  Chefs do not have to work every lunch and dinner shift.  Every Monday the restaurant is closed.  The other day taken off is rostered but the roster is very flexible and is not strictly adhered to.  Chefs often swap shifts between themselves to suit their own needs.  Chefs work 76 hours per fortnight.

94     Reference was made to exhibit 6.  In that regard Somkiat said that the Claimant’s evidence was not true.  He said that the record in each instance was complete at the time of signing.  When signing the same the Claimant did not complain that he was being underpaid.

95     Somkiat referred to exhibit 8 in pointing out that the hours referred to in that document reflect the Claimant had in fact worked in the order of 76 hours per fortnight.  He said that the Claimant’s contention that he worked far in excess of 76 hours per fortnight is simply not true.

96     Somkiat told the Court that he had had a good relationship with the claimant.  He said that the Claimant was a good worker.  The relationship soured when other former employees namely Mr Sanan Chia and his wife left the Respondent’s employment.

97     Somkiat responded to the allegations made by the Claimant that he worked even when the restaurant was closed.  He said in that regard:

“We close, mean close.  Nobody work there.”

(Transcript page 200)

98     Somkiat rejected the Claimant’s contention that he worked in renovating the restaurant or that he carried out other labouring duties, save for the shifting of kitchen equipment to the new location.  He also rejected the Claimant’s contention that he worked on Friday 26 December 1997.  He said that when pest control is carried out, no one gets in.  The pest controllers treat the whole restaurant, which is accordingly closed for the whole day.  He rejected the Claimant’s contention that he worked that day saying that it could have been dangerous.

99     Somkiat said that the restaurant was closed for two weeks between Monday 22 June 1998 and Tuesday 7 July 1998.  He described as ridiculous and impossible the Claimant’s contention that he worked alone during that time.  Further, he rejected the Claimant’s evidence that he worked on renovations to the building to which the restaurant was to relocate.  He said that work on renovations commenced later.  There were no renovations taking place during that period when the restaurant was closed.

100  Finally, Somkiat conceded that the Claimant might have worked more that 76 hours per fortnight in some instances but added that that would have been very rare.

101  The cross-examination of Somkiat initially related to consistency between the entries in exhibit 8 with those found in exhibit 4 for the same period.  It suffices to say that Somkiat agreed that the entries were consistent.

102  Somkiat was also cross-examined about his knowledge of the Award and relevant rates of pay.  He told the Court in that regard that he relied on information provided to him by government instrumentalities.  He conceded that he had underpaid the Claimant $7745.00.  He also conceded that up until about June 2000 he failed to keep or record the start and finish times of the Claimant.  He admitted also that he did not know that he was under an obligation to pay different rates of pay for Saturday and Sunday work.  He said that he thought that the amount he paid the Claimant, being an over award amount covered all his entitlements.  Further Somkiat admitted that the Claimant was not paid annual leave loading for holidays taken.  He only became aware of his obligation in that regard in June 2000.

103  Somkiat was asked whether the Claimant usually worked on Sundays.  In response he said that the Claimant only occasionally worked on Sundays.

104  The remainder of the cross-examination of Somkiat was uneventful.

Pornphit Gutheri

105  Ms Gutheri is employed by the Respondent as a casual chef at the Dusit Thai Restaurant working lunch time shifts between 11.00 am and 3.00 pm and the dinner shifts between 5.45 pm until 11.00 pm.  She told the Court that she worked with the Claimant and that he never complained to her about working very long hours.

106  She described herself as being a good friend of the Claimant “before”.

107  Ms Gutheri was asked whether the Claimant remained at work when the restaurant closed for holidays in June and July of 1998.  She responded:

“No.  The restaurant close.  Everybody go holiday.”

(Transcript page 11 - 11 December 2002)

108  When cross-examined, Ms Gutheri conceded that the work start time in 1997 through to 1999 was, in fact, 10.30 am.  It only changed to 11.00 am when the restaurant relocated. 

Kanyarat Hanrahan

109  Ms Hanrahan has held the position of restaurant supervisor at the Dusit Thai Restaurant since 1996.  Her duties include ensuring that the restaurant works smoothly.  She coordinates the staff and ensures that customer’s needs are met.  She works 7 shifts a week comprising 5 dinner shifts and 2 lunch shifts.  She told the Court that for lunch shifts she commences at 11.00 am and finishes at 3.15 pm or 3.30 pm.  For the dinner shifts she commences at 5.00 pm and finishes at 11.00 pm.  Ms Hanrahan said that she was usually the first person to go to work and the last to leave.

110  She produced her time sheets for the period April 2001 to December 2001 (Exhibit 15).  They show that she usually worked 76 hours or less per fortnight during such period.

111  Ms Hanrahan told the Court that the Claimant never complained to her that he was working excessive hours or that he was being underpaid.  Indeed, she was never of the view that the Claimant worked exceptionally long hours.

112  In relation to the restaurant’s closure in June/July 1998 she said it was not the case that the Claimant worked at such time.  She said that everyone took his or her holidays at that time.

113  When cross-examined it was put to Ms Hanrahan that she was off work for a fair bit due to ill health during the course of 1998 and 1999.  She denied that saying she had taken only one day off during that period.  She said that she managed the bookings and was fully aware of whether someone was on leave or not.

114  Ms Hanrahan said that she did not fill in time sheets for hours worked in 1997, 1998 and 1999.  Time sheets were only introduced in 2000.

Prasrt Nrlprakobkul

115  Mr Nrlprakobkul was the last witness called.  He has been employed as a chef at the Dusit Thai Restaurant for 12 years.  He first met the Claimant in 1996 when the Claimant first arrived from Thailand.  He testified that he currently works 6 to 7 shifts over 5 days.  He said his hours of work have not changed dramatically over the years.

116  He told the Court that the Claimant had never complained to him about working exceptionally long hours.  Indeed, he thought that the Claimant did not work any longer hours than himself.

117  Mr Nrlprakobkul produced his time sheets commencing August 2000 (exhibit 16).  Those reflect that he has worked, in the main, 76 hours or less each fortnight from that time.

118  Mr Nrlprakobkul was taken to comment about the restaurant’s closure in June/July of 1998.  In that regard he said that no one was at the restaurant during the holidays.

119  When cross-examined Mr Nrlprakobkul was asked about the start times for the lunch shift and in that regard he told the Court that the start time was 11.00 am.  However it was put to him that in other proceedings he gave sworn testimony that the start time was 10.30 a.m.  When questioned on that issue he was either unwilling or unable to explain the inconsistency, maintaining that work commenced at 11.00 a.m.

120  In re-examination the witness explained that when the restaurant was busy it would start at 10.30 am.  That only occurred occasionally.

Findings

121  The claim brought by Mr Apirom Kaew-Ard is entirely predicated on my acceptance of his evidence that the start and finish times that he purportedly entered into exhibit 4 are accurate.  In my view, if the Claimant is unable to establish with respect to each alleged breach the accuracy of the entry in relation to the relevant period, the claims cannot possibly succeed.  In those circumstances it is obvious that a consideration of whether or not exhibit 4 accurately reflects the Claimant’s start and finish times is pivotal to my considerations.

122  In addressing that issue it is patent that exhibit 4 does not represent a contemporaneous record of start and finish times with respect to the relevant period.  It is the case that exhibit 4 does not purport to be the source document insofar as it relates to the period ending late 1999.  Indeed, the evidence given by the Claimant is that the entries made in exhibit 4 for the period leading up to the end of 1999 are simply a copy of information recorded in a diary which has now been discarded.  Mr Apirom Kaew-Ard told the Court that he did not appreciate the importance of maintaining the source record.  Further, his reasons for transferring all of the data from his diary to exhibit 4 was so that a compendious record could be kept of all the start and finish times for the shifts worked by him both before and after the end of 1999.  Notwithstanding that, the Claimant asserts exhibit 4’s accuracy.  However the difficulty lies in the fact that the source records have been discarded and are not available for the consideration and scrutiny of the Respondent.  Exhibit 4, in reality is a reconstruction of the record.  The question then becomes whether or not this Court can be satisfied that the reconstructed record accurately reflects the original source documents.  An assessment in that regard becomes very difficult without the source documents.

123  The Claimant maintains that he has accurately transferred the details from his diary to exhibit 4.  The Respondent, on the other hand, challenges the authenticity of exhibit 4. Further it points to the numerous apparent inconsistencies found between the copies of pages extracted from exhibit 4 as supplied to the Respondent by Mr Clarke on or about 29 July 2002 with exhibit 4 itself.  It submits that those inconsistencies are a matter of concern.  Indeed the Respondent goes so far to say that exhibit 4 is a fabrication.

124  Those apparent inconsistencies to which I have referred have been comprehensively reviewed at pages 6 to 14 above.  Without again setting out each particular discrepancy it suffices to say that, in the main, the inconsistencies noted do not relate to start and finish times.  However, that is not universally so.  Indeed there are some obvious examples of where they do.  One such example is to be found in the entry for 26 January 1997 in which the Claimant in the first instance recorded that he worked that day but later amended the record to show that the restaurant was in fact closed that day.  Another glaring example is found at pages 29A and 29B of exhibit 9 with respect to the entry for 26 January 1999.  The copy page (29B) shows that the Claimant started work at 10.30 am and stopped at 3.00 pm, thereafter recommencing at 5.30 pm and finishing at 11.30 pm.  The original, as varied at page 29A and as it currently is in exhibit 4, indicates that the entry has been whited out and the word “closed” endorsed in substitution.  It is obvious, therefore, that the amendment to the original record was made well after the initial entry, possibly even after 29 July 2002.  It begs the question, of course, why was it altered?  The only possible answer is that the entry was wrongly made in the first place.  If that entry was wrongly made in the first place, what confidence can this Court have that the other start and finish entries are accurate.  Another example in the same vein is to be found with respect to the entry for

125  12 March 2000.  A comparison of pages 43A and 43B of exhibit 9 in conjunction with the relevant page in exhibit 4 reflects the same difficulty.  The copy document for that day shows a particular finish time for the dinner shift.  The original document however has been altered to show that the Claimant was sick that evening.  It is possible to infer that the alteration was made at some time subsequent to the preparation of the copy and in any event some time after June of 2000.  The entry of the finish time in those circumstances reflects, in my view, the preparation of the same en bloc.  More importantly however it reflects error.

126  Another example of difficulty with the start and finish times is to be found with respect to the entry made relating to 30 May 2000 as found at pages 45A and 45B of exhibit 9.  A perusal of the same indicates that the copy does not contain the finish time for the lunch shift.  The original, however, does.  It is patent that the original was amended to include the finish time some time after the photocopy of the relevant entry was made.  Clearly the inclusion of 3.00 pm was made well after the initial entry and (at best) reflects error in the original entry.

127  A perusal of exhibit 4 shows that alterations were made with respect to 26 January each year.  In each instance the entries were made but were then whited out so that the original entries are obliterated.  The substituted entry in each instance then reflects that the restaurant was closed.  The alteration reflects a uniform approach.  It also reflects that the amendments were made at the one time, some time well after the original entries were made.  It also reflects inaccuracy in the original entries.  It is to be noted that exhibit 4 contains several other instances where apparent en bloc entries have been whited out.

128  All of those examples highlight difficulties with the record that is apparent on its face.  However there are other difficulties that emerge when the record is exposed to scrutiny, particularly in the light of other documentary evidence and the viva voce evidence before the Court.  In that regard it is noted that the Claimant has recorded having worked on certain days that the restaurant was closed.  The booking diaries (exhibits 12 and 13), together with the viva voce evidence given by Somkiat and other witnesses called by the Respondent reveal that the restaurant was closed on 18 May 1997, 30 June 1997, 26 December 1997, 27 April 1998 and between 22 June and 7 July 1998.  The Claimant nevertheless maintains that he worked on each of those days.  However the evidence given by Somkiat and other witnesses called by the Respondent was that when the restaurant was closed, it was closed and that no one worked on such days.  It is apparent that the weight of the evidence is against the Claimant in that regard.

129  The Claimant protests, however, that he was not treated like other employees by virtue of the fact that he was under sponsorship.  He said that he was required to work when others were not, sometimes carrying out duties that were not associated with his occupation.  I found it difficult to accept Mr Apirom Kaew-Ard’s evidence in that regard.  Where there is a conflict in the evidence on such matters between his evidence and that of Somkiat, I prefer the evidence of Somkiat.  Not only is Somkiat’s evidence supported by the other viva voce testimony but also by the documentary evidence. 

130  Further, I find it extremely difficult to accept some of Mr Apirom Kaew-Ard’s evidence with respect to matters raised during cross-examination.  By way of example it is difficult to accept that he worked within the restaurant premises whilst pest control spraying was taking place.  His explanation in that regard is simply incredible.  So too is his contention that he worked whilst the restaurant remained closed in June/July 1998.  I do not accept his testimony that he performed labouring tasks at that time.  I prefer Somkiat’s evidence that work on the new premises did not start until much later.  Further, it is highly improbable that he would have had holidays in June 1998 just prior to the whole restaurant closing down.  Finally, the aspect of Mr Apirom Kaew-Ard’s evidence that I find most difficult to accept is his contention that he continued to work whilst the restaurant was closed and that whilst doing so he worked in two separate shifts as is reflected in exhibit 4.  It begs the question as to what possible utility that would have been to the Respondent, or anyone else for that matter.  That is particularly so if one has regard to the fact that he was, on his evidence, carrying out labouring duties.  For the Claimant to have worked on such occasions between 10.30 am and 3.00 pm, have a break and thereafter return to duty at 5.00 pm continuing through until 11.00 pm seems, on the face of it, highly improbable.  The only reasonable conclusion to be reached on the balance of probabilities is that the Claimant did not work the days that the restaurant was closed.  Insofar as the record (exhibit 4) reflects that he did, it must be found to be inaccurate.

131  The entire record found in exhibit 4 is drawn into question.  It is in the main a reconstructed record of the Claimant’s work record.  Its accuracy has been found wanting when carefully scrutinised.  There must be some very real doubt as to whether entries were in fact copied into it from the Claimant’s diary or from pieces of paper.  The amendment of the entries with respect to 26 January each year exemplifies amendment in one transaction.  Further it appears that the record has been changed after the copies of the same were supplied to Mr Sutherland.  Mr Gregory’s evidence also adds weight to the conclusion that exhibit 4 is not what it purports to be.

132  In the circumstances, I find that exhibit 4 is an unreliable record of start and finish times.  It cannot be relied upon to establish any of the claims made by the Claimant.  Such record being the cornerstone of the Claimant’s case, its failure undermines the entirety of the claim.  Having said that, I acknowledge that there is some support for the Claimant in what Mr Frances told the Court.  His evidence, however, lacked detail and does not assist the Claimant’s case to any great extent.

133  I need not comment on the evidence of other witnesses, in view of my findings, except to say that I did not have any particular concern with the evidence of each of them.

Result

134  Given that the Claimant has failed, on the balance of probabilities, to establish that he has worked the times he alleges, it follows that he has failed to establish each alleged breach.

135  The Respondent nevertheless concedes an underpayment of the amount $7745.00.  Given the state of the evidence it is impossible to identify particular breaches of the Award that occurred during the material period that give rise to the total underpayment.  It is apparent, therefore, that there has been a breach of the Award constituted by a failure to pay the correct rate of pay, but the constituent breaches giving rise to the total underpayment cannot be identified.  Mr Napoli’s calculations in exhibit 11 do not permit such identification and there is nothing in the Claimant’s evidence which assists him in that regard  Accordingly, the only possible outcome is to find that between 1 October 1996 and 31 July 2000 the Respondent breached the Award by failing to pay the correct rate of pay.  That failure constitutes a single breach occurring between those dates.  It follows that an order ought to be made in favour of the Claimant with respect to the amount of $7745.00.

136  There has also been, based on the admission made by Somkiat (see transcript page 215), a breach of clause 18(2) of the Award constituted by a failure to annual leave loading.  Although that matter was addressed in evidence, it is not the subject of claim nor, indeed, in issue on the pleadings.  Accordingly, it is inappropriate that I make an order in that regard.

Comment

137  It is important that parties who come before this Court recognise that it is a Court and, therefore, fundamentally different to the Western Australian Industrial Relations Commission.  Unlike the Commission this Court cannot act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 26 of the Industrial Relations Act 1979).  Far too often the parties fail to appreciate that having a claim and being able to prove it on the balance of probabilities are not always synonymous.  Accordingly, given the nature of this jurisdiction, it is incumbent upon the parties and/or their representatives to properly assess whether the material matters supporting the claim can be proved to the appropriate standard.  In doing so they are necessarily required to assess not only the strength of their own case but also the nature and strength of the opponent’s case.  Often that is not done.  Some agents, due to lack of training or experience or both, are unable to properly assess the relative strengths of their client’s case.  Difficulties arise as a consequence.  I fear that is what has happened in this instance.  To make matters worse in this case it became apparent during the course of the hearing that the issues for consideration were overtaken by the concern that each representative had at the other’s conduct.  That is inappropriate.  What is required is an objective approach in presenting evidentiary material before this Court.

G Cicchini

Industrial Magistrate