WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00139

DELIVERED : Wednesday, 6 February 2019

FILE NO. : M 121 OF 2018

CLAIMANT

AND

Dalche Enterprises Pty Ltd (ACN: 618909041)

Respondent

Legislation : Fair Work Act 2009 (Cth)

Instrument : Restaurant Industry Award 2010 [MA000119]

Result : Claim dismissed

Representation:

Claimant : Mr S. Thind (in person)

Respondent : Mr D. Cheema (director)

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by his Honour)

Introduction and Summary

1         Mr Thind is Ms Navdeep Gill’s (M 120/2018) husband. He alleges that, before the opening of the ‘Narrogin Curry Palace’, he had a conversation with Mr Daljeet Cheema in which Mr Thind told Mr Daljeet Cheema that he was considering whether to seek employment in Narrogin (where opportunities were limited) or in Perth. Mr Daljeet Cheema responded by offering (on behalf of Dalche Enterprises Pty Ltd (the Company)) to employ Mr Thind to assist Ms Gill in operating the Narrogin Curry Palace. Mr Thind accepted the offer of employment.

2         The Company disputes the terms of the conversation as alleged by Mr Thind. Mr Daljeet Cheema denies that he ever made an oral offer to employ Mr Thind. Mr Daljeet Cheema states that any work done by Mr Thind in the business of Narrogin Curry Palace was done on the initiative of Mr Thind himself or of Ms Gill; without the express or implied consent or agreement of the Company.

3         If Mr Thind’s allegation of his contract of employment with the Company is proven, the work he described would be subject to the provisions of the Restaurant Industry Award 2010 (MA000119) (the Modern Award) and he would be entitled to a minimum wage on the basis of a classification as a ‘Level 2 Food and Beverage Attendant’.1

4         Mr Thind alleges that, in breach of the Modern Award, the Company made no wage payments to him. Mr Thind also alleges that the Company failed to give the minimum required period of notice of termination of employment required by the Fair Work Act 2009 (Cth) (FW Act) (s 117) and made no payments on account of accrued annual leave as required by the FW Act (s 90). Mr Thind seeks orders under the FW Act (s 548(1A)) for amounts that the Company was required to pay because of the Modern Award, that is, a ‘fair work instrument’ ($11,828.20 unpaid salary) and because of the FW Act ($742.14 in lieu of notice of termination and $500.94 in accrued annual leave). If Mr Thind’s allegations are proven, the court has jurisdiction to make the orders that he seeks in these small claim proceedings: FW Act, s 548(1A).

5         The issue for me to determine is whether the Mr Thind has proven, on the balance of probabilities, that a contract of employment was made between himself and the Company.

6         For oral reasons to be delivered by me at the time of publication of this written summary, I have concluded that I am not satisfied that there was a contract of employment between Mr Thind and the Company.

M. FLYNN

INDUSTRIAL MAGISTRATE

1 The Modern award would ‘cover’ and ‘apply’ to the Company and Mr Thind: FW Act, s 47(1). Clause 4 of the Modern Award provides that the award covers employers in the restaurant industry and their employees in the classifications listed in Schedule B. I rely upon the uncontradicted evidence of  Ms Gill and Mr Thind describing the operation of Narrogin Curry Palace which is consistent with it being characterised as a restaurant and inconsistent with it being characterised as one of the industries in cl 4.8 of the Modern Award (retail, fast food, etc.). I also rely upon the uncontradicted evidence of Ms Gill and Mr Thind describing the work performed by Mr Thind and the evidence of Mr Thind as to his experience before in previous employment.