DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Rajesh Tiwari
v
Seljo (NT) Pty Ltd T/A Saffrron Indian Restaurant
(C2018/4560)

Application to deal with contraventions – adverse action – termination of employment – not taken for prohibited reason – application dismissed.

[1] Mr Rajesh Tiwari (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) alleging that adverse action was taken against him in the form of the termination of his employment because he exercised his workplace right to make a complaint or inquiry about his wages and conditions of employment. In particular the Applicant says that he sought payment of overtime owing to him and sought to work in accordance with his contract of employment and to not be required to undertake work he was not skilled or qualified to undertake.

[2] The Applicant was employed by Seljo (NT) Pty Ltd T/A Saffrron Indian Restaurant (Respondent) as a Bar Supervisor. He commenced sometime in the first half of 2015 (the date of commencement is in dispute). The Applicant was employed subject to a temporary skilled migration visa (457 visa) but was seeking permanent residency and believed, on the basis of representations made by Mr Selvam Kandasamy, Proprietor and Managing Director of the Respondent, that the Respondent would sponsor such an application when Mr Kandasamy knew it could not do so.

[3] The Applicant says that after making complaints to his employer about his workplace rights he was summarily dismissed from his employment.

[4] The Respondent says that in March 2018 the Applicant found that he was not successful in his application for permanent residency. Following this the Applicant’s attitude and performance deteriorated significantly such that he was given a warning on 28 April 2018 and a further warning on 9 May 2018. As the Applicant’s attitude and performance did not improve the Respondent says it had little choice but to terminate the Applicant’s employment on 10 June 2018.

[5] The Respondent says that the Applicant did not raise any complaints about his hours or the work he was doing prior to his dismissal such that these claimed complaints could have formed the basis of its decision to terminate the Applicant’s employment.

Legislation

[6] Section 340(1) of the FW Act relevantly provides as follows:

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

[7] Section 341(1) of the FW Act states that:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

[8] Section 361(1) of the FW Act states that:

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

[9] In Keep v Performance Automobiles Pty Ltd 1 the Full Bench of the Fair Work Commission (Commission) observed that:

[25] The FWC’s task in the substantive proceedings was to determine, on the balance of probabilities, ‘why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason.’ 2 Subsection 361(1) casts an onus of proof on an employer to show that it did not take action for a prohibited reason.

[26] The practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. 3 In assessing the evidence led to discharge the onus upon the employer under s.361(1), the reliability and weight of such evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it is the reasons of the decision-maker at the time the adverse action is taken which is the focus of the inquiry.4

[underlining added]

Matters for determination

[10] There is no question that the Applicant was dismissed from his employment.

[11] The matters to determine are:

1. Whether the Applicant exercised a workplace right by making a complaint or inquiry in relation to his employment with the Respondent;

2. If adverse action was taken against the Applicant;

3. If the Respondent can demonstrate that the complaint or inquiry was not a reason or part of the reason for the termination of the Applicant’s employment.

[12] Substantial oral and documentary evidence was put before the Commission in relation to these matters. This includes copies of the various contracts said to have been signed by the Applicant and Respondent, timesheets, complaints and warning letters.

[13] Further, extensive evidence was provided in relation to the Applicant’s application for permanent residency. The Applicant was employed by the Respondent subject to a 457 visa. For reasons that will become apparent the Respondent was not able to sponsor the Applicant for his permanent residency. Once this sponsorship failure became evident the Applicant withdrew his application for permanent residency.

[14] I do not consider that I need to make any finding in relation to the application for permanent residency made by the Applicant and the Respondent’s role in the failure of that application although the circumstances are a relevant consideration. Neither the Applicant nor the Respondent claimed that an application for permanent residency is a workplace right (it is a citizenship issue). Whilst having employment or an employer sponsor is a necessary condition for permanent residency I am not convinced that the permanent residency itself is a workplace right.

[15] Further, I do not need to make a determination as to whether the Applicant was underpaid or not. This is a matter for a different jurisdiction as is any question as to whether the Respondent did not meet its obligations in respect of sponsorship of the Applicant on a temporary skilled migration visa or in connection with sponsorship for permanent residency. Whether the Applicant made a complaint or inquiry about his pay is a separate matter and one necessary for me to consider.

Evidence

[16] Evidence in these proceedings was given for the Applicant by:

•  Mr Rajesh Tiwari (Applicant).

•  Mr Santosh Kumar, former employee of the Respondent.

•  Dr Suriya Shanmugham.

[17] Evidence was given for the Respondent by:

•  Mr Selvam Kandasamy, Proprietor and Managing Director of the Respondent.

•  Mr Richard Foo (Northern Territory Department of Trade, Business & Innovation).

•  Mr Douglas Gillanders (Biznorth).

[18] It was not contentious that the Respondent operates two Indian restaurants (Saffrron) in Darwin – one in Parap and the other in Alawa.

Mr Rajesh Tiwari

[19] The Applicant said that he commenced employment with the Respondent on a trial basis in November 2014. This continued for two and a half months. He said that in January 2015 5 he signed a contract that was needed for his migration agent “to proceed with the sponsorship obligations” although later gave evidence that the contract he signed was dated February 2015.6 The Applicant also said that he did not sign any other employment contract until 2017.7

[20] The Applicant’s 457 visa was issued on 25 May 2015.

[21] The Applicant denied that he had seen a contract dated 1 June 2015 and also denied that it was his signature that appeared on the contract 8 or that he had printed his name on the contract.9

[22] The Applicant said that he was employed as a Bar Supervisor but that he actually helped the kitchen staff do meal preparation during the day and of an evening he started at the back of house and then had to clean up the kitchen.

[23] While working in the kitchen the Applicant said he was required to work the tandoor oven. He said that in 2014 when he was a student in Sydney a friend advised him that he had a better chance of gaining sponsorship if he had skills as a chef. He said he had some training for between two and four days on the tandoor but found the work too hard. He said the Respondent expected him to work the tandoor. He was shown by the chef how to use the tandoor and then told to do it. In doing so he burnt himself often and suffered from dehydration because of the heat. He said he was not qualified to work the tandoor and never told Mr Kandasamy that he was interested in working the tandoor.

[24] The Applicant acknowledged that there were tandoor chefs employed in both the Parap and Alawa restaurants but said he was required to work the tandoor when the chef was sick or injured or “stressed out of the jobs” or when they were on annual leave. 10

[25] The Applicant said that in 2016 when his colleague Mr Kumar returned to India to get married he commenced working in front of house where he had to set up for day to day operations, was responsible for hiring staff, rostering and timesheets.

[26] The Applicant said that he was required to work 38 hours per week in 2015 although did a lot more and in 2017 this was increased to a requirement to work 42 hours per week. He said that he was not paid for any overtime worked. He was required to work Tuesday to Sunday. The Applicant further gave evidence that the “timesheets were pre-prepared and there was no space to do any adjustment.” 11

[27] The Applicant said that he spoke to Mr Kandasamy about being paid for the additional hours he worked but was told that the Respondent had just done some renovations on the restaurant, the economy was not good and he could not be paid for the overtime. 12

[28] He said he again raised the issue in 2016 but was told the business was not making money and that if it had to pay more it might have to close down and would not be able to sponsor anyone. 13

[29] The Applicant further said that at times he worked in both restaurants on the one shift – he would close up one restaurant and then travel to the other restaurant and close it up before going home.

[30] The Applicant said that he had 10 days sick leave per year and used most of that. He said that in February 2018, on his return from five weeks workers’ compensation leave following an accident in the kitchen he was directed to take five weeks of annual leave. Whilst on this period of leave and because he was depressed he attempted self-harm and was admitted to hospital overnight.

[31] In March 2018 the Applicant said he withdrew his application for permanent residency as the Respondent refused to sponsor the nomination. Following this he decided he wanted to work “normal hours and not take unnecessary job pressure.” 14 He communicated this to the Respondent via a text message he sent to Ms Joanna Thom (Jo or Ms Thom) on 3 March 2018:15

Just saw your message regarding staff drinks...

I will inform all front of house staff and will also inform Mani to follow this essential measure and he can pass it to all Boh staff..

I don’t know about other staff but I will be working according to my timesheet.

I am requesting you please do not ask me to do any unreasonable work which doesn’t comes under my job and responsibility because this might affect my core jobs and create any unnecessary job pressure. Thanks in advance..[sic]

[32] The Applicant says he received no reply. 16

[33] The Applicant understood that neither Mr Kandasamy nor Ms Thom (who is Mr Kandasamy’s wife and business partner) were unhappy with the content of the text message. In a discussion with Mr Kandasamy in early March 2018 but after he had sent the text message the Applicant was told that Jo was not happy with him. The Applicant expressed surprise as he thought he and Jo had a professional working relationship. He asked that it be confirmed in writing.

[34] The Applicant said he was surprised when he received a warning letter on 28 April 2018. 17 He said he had not been advised prior to this of any misconduct or performance issues. The meeting proposed in that letter for 15 May 2018 never happened.

[35] The Applicant said he received a second warning letter on 9 May 2018. 18 That letter proposed a meeting on 31 May 2018 which did not occur. The Applicant believed he received this letter because he had said he would work as per his timesheet.

[36] The Applicant denied that he had any face to face meetings in April, May or June 2018 about his performance or how he should improve. 19

[37] The Applicant said he received his termination of employment letter (dated 9 May 2018) on the evening of 10 June 2018. He said on the day his employment was terminated he worked the entire shift. He said that nothing significant happened and after 8.30 p.m. Mr Kandasamy and Jo handed him the letter of termination, he handed over the keys, gathered his things and left. The Applicant denied that the Respondent had shown to him any complaints from customers 20 received in early June and further he says that those things complained about did not happen.21 The Applicant agreed however that he did spend time at work on the phone as that is how the delivery drivers contact him for assistance or how the call centre staff contact him.

[38] The Applicant denied:

•  That he had a meeting on the morning of 8 June 2018 with Mr Kandasamy;

•  That he received an email from Mr Kandasamy on 8 June 2018;

•  That he provided discounted alcoholic drinks to friends;

•  That he gave discounts to friends but said staff were entitled to a 15% discount;

•  That he had received an email from Mr Kandasamy about a customer with a nut allergy that the Applicant apparently recommended a butter chicken dish (which contains nuts) to.

[39] The Applicant said that prior to the June 2018 complaints he had not received any complaints about his work.

[40] The Applicant said that he found the sponsorship for his permanent residency by the Respondent was refused via email from his migration agent in which she asked if he wanted to withdraw his application. 22 The Applicant gave evidence that he spoke to the “NT Migration Office” who told him that under the NT DAMA23 his employer could not sponsor him for permanent residency. The Applicant said that Mr Kandasamy told him to put in his application knowing the Respondent could not sponsor him. He said that he paid $9,000 to his agent for the work she did for him but she did not have access to the DAMA.

[41] The Applicant denied that he adopted a different style or attitude at work following the failure of his permanent residency application process. 24

[42] The Applicant said that Mr Kandasamy told him in early January 2017 that a person from “migration” was coming to look at how things were going. The next day when he arrived at work there was man present who he thought was the man from “migration”. He said that another employee spoke to the man first and then said to the Applicant in Hindi that they were being asked to sign a new contract that contained a restraint of trade clause. The Applicant said he then saw the man who went through all of the contract clauses with him, told him how much he would receive and then “told” the Applicant to sign it. It was only then that he found out the person was from Biznorth [a human resources consulting firm] and not from migration.

[43] The Applicant denied that he received an email from Mr Kandasamy 25 in which Mr Kandasamy advised that “Dough” [sic] from Biznorth would be coming the next day or that he replied to that email.

[44] The Applicant agreed that he had not put a complaint about his working hours in writing to the Respondent but he did raise concerns verbally two or three times and then in March 2018 he sent the text message to Ms Thom in which he advised he would be working the hours in his timesheet only.

Dr Suriya Shanmugham

[45] Dr Suriya Shanmugham gave evidence that he and the Applicant shared accommodation in Darwin between 2015 and 2016. At the time the Applicant was employed by the Respondent. Dr Shanmugham said that during this time the Applicant worked on Sundays. He said he sometimes dropped the Applicant at work at around 3.30 p.m. to 4.00 p.m. and that the Applicant would get home at about 11.00 p.m. to 11.30 p.m. Dr Shanmugham agreed that he did not know when the Applicant actually commenced or finished work. Dr Shanmugham said that the Applicant would “consistently…say that he was working and closing down and doing everything by himself and he was really upset and frustrated, and this used to happen pretty much every night.” 26

[46] Dr Shanmugham said that, while the Applicant did not go into details with him, he understood that when the Applicant applied for his permanent residency he was waiting for Mr Kandasamy to submit papers. The application did not succeed and the Applicant:

was very angry and he was saying that Selvam [Kandasamy] should have known that the visa would not be successful and that he has tricked him. I didn’t quite get into the details of it, but he essentially indicated that his visa application was unsuccessful and that Selvam had known that previously but had led him along and not informed him, and that the papers were not submitted. 27

Mr Santosh Kumar

[47] Mr Santosh Kumar worked for the Respondent from 2010 until March 2016 as a Manager. He said that he was paid in accordance with a pre-populated timesheet and was not paid for working on a Sunday. Mr Kumar said that none of the staff asked him to alter the times recorded in the timesheets and he never questioned Mr Kandasamy about it. He said that some staff had complained about their hours.

[48] Mr Kumar knew the Applicant from India and when the Respondent was looking for more staff he introduced the Applicant the Mr Kandasamy. He said the Applicant generally worked front of house but occasionally worked in the kitchen doing preparation or cooking in the tandoor.

[49] Mr Kumar said that, when he worked for the Respondent, they would start work 30-45 minutes prior to opening so they could clean up prior to the morning opening. Mr Kumar said he did not see the Applicant regularly work eight hours or more on a Sunday although he might if he was cleaning the kitchen when he would finish at 11.00 p.m. or 11.30 p.m. if they were busy. 28

Mr Selvam Kandasamy

[50] Mr Selvam Kandasamy gave evidence that the contract of employment relied on by the Applicant dated 1 February 2015 29 is not a document he has seen before. While he agreed it was his signature on it he said the document was not produced or actually signed by him. Mr Kandasamy said that the Applicant had access to the computer systems at work, claimed the Applicant took documents from the system and “produced that [contract]”.30 Mr Kandasamy suggested, in reply to a question, that the contract was fraudulently put together by the Applicant. Mr Kandasamy said that he had not seen the document prior to the Applicant filing his material in these proceedings.

[51] Mr Kandasamy gave evidence that the Applicant was required to have an offer of employment in order to gain his 457 visa. The offer dated 10 January 2015 was provided for this purpose. 31 Mr Kandasamy gave evidence that his signature appeared on the contract and the signature of the Applicant was his original signature.32 Mr Kandasamy said that he started to sign it with one pen but the ink ran out so he changed to a different coloured pen. He said he printed the Applicant’s name and the date on the document and then took the document to the Applicant who signed it with his own pen.33

[52] Mr Kandasamy gave evidence that the Applicant had commenced work as a casual employee on a trial basis “on and off” in January 2015. He worked for some time, then went away and then commenced on a full-time basis on 1 June 2015. Mr Kandasamy said that the contract dated 1 June 2015 34 which included a job description, was provided to the Applicant on 1 June 2015 when he commenced on-going employment. It set the rate of pay for the work being done by the Applicant.

[53] Mr Kandasamy gave evidence that at the time the Applicant commenced on-going employment the Applicant said that he could work in the kitchen and that he knew how to cook in the tandoor. 35 Despite this Mr Kandasamy said that the Applicant was only required to cook in the tandoor if someone was off sick – maybe six or seven times. Mr Kandasamy said that if the Applicant did not want to cook in the tandoor he did not have to and the restaurant would just work around that.36 Mr Kandasamy gave evidence that cooking in the tandoor requires skill and he would not ask anyone who has not cooked in one to do so. He said he hired the Applicant because he said he could cook in the tandoor and had done so in Sydney.37

[54] The Applicant had keys to the restaurants and at times was required to lock up but he was not required to clean the kitchen as the chefs and kitchen hand would do that.

[55] Mr Kandasamy provided a list of employees on the payroll in June 2018. 38 Of these employees he identified the tandoor chefs (Gupta and Singh) and the kitchen hand (Hammad).39

[56] Mr Kandasamy said that after Mr Kumar left in 2016 the Applicant was responsible for checking timesheets and then sending them to Mr Kandasamy so they could be forwarded to the accountant to be processed. Mr Kandasamy said that he had never seen the timesheets of the Applicant produced by the Applicant in his materials filed in the proceedings. 40 Mr Kandasamy said that the timesheets were not pre-populated. Mr Kandasamy disputed that the Respondent had used the timesheets provided by the Applicant41 but only used the two column timesheet provided by the Respondent42.

[57] Mr Kandasamy said that the Applicant was not working hours that he was not being paid for, he was always required to work on Sundays, it was in his contract that he work on Sundays and he did not know why Sundays were blocked out on the timesheets provided by the Applicant. Further, Mr Kandasamy said the Applicant never spoke to him about the hours he was working. 43

[58] Mr Kandasamy gave evidence that the Respondent was approved by the Department of Immigration and Border Protection (DIBP) as a “Temporary Business Entry Standard Business Sponsorship” which meant it was eligible to sponsor workers on 457 visas to work for the Respondent.

[59] Mr Kandasamy said the Applicant was paid an annualised salary under the award that included a 25% loading on the base rate of pay for his position in compensation for working on Saturdays and Sundays. On this basis penalty rates were not required to be paid. Mr Kandasamy said he was not aware of the full details of the annualised salary as he left it to the bookkeeper and accountant. 44 Mr Kandasamy also said that he just followed what DIBP indicated was required to be paid under the sponsorship which, he said, was higher than the award rate.

[60] Mr Kandasamy agreed that the Applicant was employed as a “bar supervisor” but said that the rate paid to the Applicant was that advised by “immigration”. 45

[61] Mr Kandasamy said that in November 2017 the Applicant indicated that he wanted to take five weeks annual leave in early 2018. The Applicant then injured himself in 2018 and was absent on workers’ compensation. The Applicant indicated to the Respondent that he still wished to take the five weeks leave so the Respondent honoured that. The Applicant was not otherwise directed to take five weeks leave. 46

[62] In relation to the circumstances surrounding the issue of the first warning to the Applicant, Mr Kandasamy said:

Actually that’s the thing, this whole scenario it’s all about his visa. That the visa is making the whole issues happen today, where we are at. Now March itself, that is the time that immigration decide this letter that his visa not approved. So that moment itself he just completely changed his attitude and he fully thinking this whole scenario is because - made because of us, so that his visa got cancelled because of that. So that’s when he completely - he’s very upset and he’s thinking we are purposely did for him. That’s what his understanding. So his attitude, everything changes after this March afterwards. So anything he do, like the work wise, it’s completely his attitude change and towards us, like when we ask something, he never answer properly and very angry, do a lot of things what he’s supposed to do, he just completely mess up. So that’s why we have start (indistinct) happened. This mostly - the first one is happened because it’s to do with Jo because Jo is the one dealing with in the front and she keep on come telling me that he’s not even listening anything, his attitude completely changed and the way he answer is like, you know, very rude manner and stuff. So we discuss about these things and then she went and talked to him many times but he keep - he got a lot of anger and he keep thinking that this whole issue is because of the visa matter. 47

[63] On 27 April 2018 Ms Thom sent an email to the Applicant 48 apparently in regard to matters from the previous evening. It indicated a further discussion that evening. The email flagged some issues with respect to the Applicant’s work performance.

[64] Mr Kandasamy said that Ms Thom met with the Applicant on 28 April 2018 following a discussion between them. Ms Thom returned from that meeting and told Mr Kandasamy that the Applicant had been very rude to her and they had argued. Mr Kandasamy and Ms Thom decided therefore to provide a warning letter to the Applicant. 49

[65] Following this, matters escalated with the Applicant. There were disagreements over quite small things like making sure the iPad (which was used for taking orders) was charged. This had been discussed with the Applicant a number of times who said he did not have time to do it. The Applicant said to Mr Kandasamy that if he didn’t like it he could give the Applicant a letter. 50

[66] Mr Kandasamy said that he and Ms Thom met with the Applicant a number of times and monitored his conduct and performance. Things were getting worse so they sat down and drew up a further warning letter. Following the issue of the second letter Mr Kandasamy said that the Applicant’s attitude got worse and the Respondent started to receive complaints from customers. 51 Mr Kandasamy said he discussed the complaints with the Applicant on 8 June 2018 and then sent him an email.52 Mr Kandasamy said the Applicant was angry when he discussed the complaints with him and responded “if you don’t like it just sack me”.53

[67] Mr Kandasamy said he normally discussed complaints from customers with the staff concerned. He said the purpose of the discussion was not to blame anyone but to fix the problem so it would not happen again. Mr Kandasamy however could not explain the similarity of wording between the June 2018 complaints and reviews on TripAdvisor from January 2018. 54

[68] Mr Kandasamy said that Ms Thom returned after being away on Friday 8 June 2018. Over the weekend they discussed the situation with the Applicant. He and Ms Thom sat down with the Applicant on the Sunday to discuss matters but the Applicant’s “whole thing is just give me a letter and I’ll go.” 55 Mr Kandasamy said the letter of termination56 was given to the Applicant that day at the end of his shift. He said it was erroneously dated 9 May 2018.

[69] Mr Kandasamy gave evidence that the Applicant had been a good employee up until the time his permanent residency application failed. Every now and then they had “small issues” but these would be discussed and resolved. He said it was not until after April when the Applicant’s application for permanent residency was refused that his performance deteriorated.

[70] With respect to the Applicant’s application for permanent residency Mr Kandasamy said that Ms Tanya Costello was the Applicant’s lawyer/migration agent and she did not represent the Respondent. He said he did not know her, the Applicant found her and said that was who he wanted to have dealing with his application. Mr Kandasamy said he was happy for the paperwork to be processed through Ms Costello. Mr Kandasamy said that he was not aware how much the Applicant’s permanent residency application would cost but accepted that it was understandable the Applicant would be upset at the loss of $9,000 with the failure of the nomination in relation to his permanent residency application.

[71] Mr Kandasamy said that the Respondent had previously sponsored Mr Kumar for permanent residency. He said that when the NT DAMA was introduced he attended a seminar conducted by Mr Richard Foo of the Northern Territory Department of Trade, Business and Innovation (NTDTBI). Mr Kandasamy stated that Mr Foo said the DAMA was a program to make it easier for small business to sponsor 457 visa holders. He said that he was not told at that time the DAMA would not provide a pathway to residency. He said the Respondent was the first or second business to be approved for the DAMA. Mr Kandasamy also said that he was told by Mr Foo that there were only two changes arising from the DAMA – one related to the English language requirements and the other to the discounted wages available.

[72] Mr Kandasamy said that he wanted the Applicant to gain his permanent residency. He has sponsored four or five people in the past on this pathway and there is no reason he would not sponsor the Applicant if he could. He said when the Applicant’s application could not proceed he contacted Mr Foo who said there was no pathway 57 under the DAMA.

[73] Mr Kandasamy said that the Applicant blamed him when his application was rejected. He said that he tried to help and had provided all necessary documents.

Mr Richard Foo

[74] Mr Richard Foo works for the NTDTBI. He gave evidence that the DAMA is a “head agreement” between the Northern Territory and Commonwealth Governments “that provides access to local businesses for a range of pre-arranged, pre-negotiated concessions from the standard visa programs. Those concessions cover all sorts of things around skills and English but [it] also includes a potential pathway for permanent residency.” 58 He said it can provide a pathway to permanent residency but this is subject to Commonwealth confirmation which has not been forthcoming for four years. For this reason it was not possible to sponsor someone already on a visa under the DAMA program to permanent residency.

[75] Mr Foo said that the concession granted to the Respondent by the DAMA (over what would normally be required under a standard 457 visa arrangement) was a change in the English language requirements and a 10% discount to the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900. He said that the Northern Territory Government’s role is to do no more than endorse businesses to access the DAMA. The Labour Agreement under which a worker is sponsored is between the Commonwealth Government and the Respondent. 59

[76] Mr Foo said that Ms Tanya Costello was a migration agent for the Respondent but that it is not unusual for the same migration agent to act for both the sponsor and the person seeking sponsorship. 60

[77] Mr Foo said that the Department originally advised prospective employers that a pathway to permanent residency was to be confirmed but was not available at the time. That messaging has “changed” to say that “the Australian government doesn’t look likely to provide that pathway but as far as information on the website goes, there is no information because there was no clear pathway.” 61

[78] Mr Foo gave evidence that the relevant Labour Agreement must specify if it provides a pathway to permanent residency. If it is not specified in the Labour Agreement then the pathway does not exist.

[79] Mr Foo also gave evidence that, prior to going on to the DAMA, the Respondent was on a standard business sponsorship program. That program did provide a pathway to permanent residency. He agreed that when the DAMA was entered into between the Northern Territory and Commonwealth Governments it was planned to negotiate a pathway to permanent residency. he said that “[t]he messaging at the time to businesses was that was the plan but it didn’t work.” 62

Mr Douglas Gillanders

[80] Mr Douglas Gillanders is Biznorth’s HR Consultant. He gave evidence that he had undertaken work for the Respondent in the past. Biznorth was approached to ensure the Respondent was compliant with its legal obligations.

[81] Mr Gillanders said he was involved in “creating” the January 2017 contracts and Individual Flexibility Agreements (IFAs) offered to employees of the Respondent.

[82] He personally went through the contract and IFA clause by clause with each employee so that they understood what they were signing. One of those staff members was the Applicant. He said the Applicant accepted what was put to him, asked some question about hours of work and leave and indicated he was happy to sign the contract and IFA and did so.

[83] In drawing up the contracts, Mr Gillanders produced a flat rate of pay which the IFA “backed up with the BOOT does.” 63 In undertaking his work he was aware of but had not seen the contract signed by the Applicant prior to the one he produced.

[84] Mr Gillanders did not independently verify the job title or classification level of the Applicant but rather accepted what the Respondent had advised was the classification level. Mr Gillanders considered that the contract was fair as the Applicant was being paid in excess of the award conditions.

[85] Mr Gillanders said that, as part of the discussion, he explained who he was, where he was from and that he had been contracted by the Respondent. He provided a business card to the Applicant and said he could contact Mr Gillanders by email if he required anything. He agreed that neither the Applicant nor other employees were offered the chance to take the contract away but says he spent about 45 minutes with each employee.

Assessment of evidence

[86] There is a question as to the reliability of the evidence given by both the Applicant and Mr Kandasamy. Each displayed a selective memory and each was, at times, evasive. Each relied on assertion or hearsay evidence to support much of their claims. The Applicant’s signature appeared on extensive documentation, most of which he claimed never to have seen. He both accepted and rejected knowledge of the January 2015 contract. Neither the Applicant nor Mr Kandasamy could explain discrepancies in documentation (discussed below). Whilst the inability to explain discrepancies is not critical to my determination of the issues, that and the selective memories contribute to questions of reliability.

[87] Neither the Applicant nor Mr Kandasamy had a clear recollection of events over the three year period during which the Applicant was employed, documentation was poor, not controlled or non-existent and much about that documentation was disputed.

[88] The Applicant consistently denied any meetings with or emails from the Respondent that suggest performance matters were ever raised to a point which casts doubt as to the reliability of his recollection. I find it difficult to accept that issues of concern with his or the restaurants’ performance were never raised with the Applicant.

[89] I also note that Ms Thom was not called to give evidence which could have corroborated that of Mr Kandasamy or clarified that of the Applicant.

[90] I have no concerns as to the evidence of Mr Gillanders or Mr Foo. They each gave evidence directly and without hesitation.

[91] With respect to the evidence of Dr Shanmugham he adds little to the material necessary for me to resolve the matter before me. I do not need to determine if the Applicant worked extended hours or not on Sundays in 2015 to answer the question before me. In this respect the evidence of Mr Kumar may be of some assistance as he, at least, worked with the Applicant for a period of time.

The contracts of employment

[92] Four separate contracts in relation to the Applicant’s employment were before the Commission. The salient details from each are set out below.

[93] The first contract (dated 27 January 2015) and the second contract (dated 1 February 2015) provide that employment is to commence “within 14 days of the grant of an 457 Visa”. Whichever contract is the true contract it does not evidence employment prior to 1 June 2015, but rather an intent to employ contingent on the grant of the 457 visa. Each contract provides for an annualised salary. The Applicant, on his own evidence, received one or other of these contracts and signed it because it was required by his migration agent to progress his 457 visa. To the extent he now claims that he signed neither of these documents I reject that evidence.

[94] The third contract is dated 1 June 2015 and contains a detailed job description which includes food and beverage service, reservations, cleaning, tandoor, timesheets etc. It provides for a 39 hour week and an annualised salary. It appears to be signed by both the Applicant and Respondent although the Applicant claims to never have seen it before.

[95] I am not convinced that the Applicant had not seen this contract before. The Respondent has sponsored workers on 457 visas in the past. Mr Kandasamy is aware of the requirements of engaging 457 visa holders. Further, the Applicant has displayed a selective memory when it comes to the history of his employment and an inconsistent memory of which contracts he had signed.

[96] The fourth contract is dated 10 January 2017. The Applicant agrees that he signed the contract. It provides for an annualised salary and 42 hours per week. It has, attached, an Individual Flexibility Agreement (IFA) as to the operation of the annualised salary.

[97] The relevant award at all times was the Restaurant Industry Award 2010 64 (Award). That Award provides for annualised salary arrangements (at clause 28.1) of the equivalent ordinary rate +25%. The Award also requires an annual reconciliation of hours worked, payment received and what would otherwise have been required to be paid without the annualised rate.

[98] I note that Mr Kandasamy gave evidence that the Applicant started checking timesheets in 2016 when Mr Kumar left the Respondent but the position description in the third contract dated 1 June 2015 has the Applicant undertaking that task although I do not think much turns on this. I also note the position description of the contract dated 1 June 2015 indicates that the Applicant was to undertake tandoor cooking although he was not employed as a cook or a chef.

[99] As I have mentioned above I do not need to determine if the Applicant was correctly paid in order to determine the application before me.

Timesheets

[100] The Commission was provided with two sets of timesheets in relation to the Applicant’s employment.

[101] One set of timesheets was provided by the Respondent (the two column timesheets) for the period 2 June 2015 until 29 October 2017.

[102] These timesheets have the rostered hours filled in. No handwritten changes have been made to these hours except to indicate when the Applicant was absent on annual or personal leave.

[103] The format of the timesheets does not change over the two and a half years for which they are provided.

[104] The timesheets are all signed or initialled apparently by the Applicant and, for the period 2 June 2015 to 10 January 2016 counter signed by the “Manager”.

[105] A second set of timesheets was provided by the Applicant (the landscape timesheets) for the period 1 November 2016 to 27 November 2016 and 27 December 2016 to 8 January 2017. Each of these timesheets has Sunday greyed out. A single “two column timesheet” is provided for the fortnight commencing 10 January 2017.

[106] Each of these landscaped timesheets cover periods of time for which two column timesheets have also been provided by the Respondent. Each of these sets of timesheets is initialled or signed by the Applicant. Given that the Commission only had access to photocopies of the timesheets it is difficult to know what conclusion to draw from the different timesheets.

[107] On both sets of timesheets no specific hours were completed for the days or work but periods of absence were clearly noted.

[108] No explanation was given by either the Applicant or the Respondent as to the existence of the two sets of timesheets or, from the Applicant, where the copies he produced came from.

[109] The timesheets however tell me little as to the Applicant’s actual hours of work or if he raised issues as to his hours of work with the Respondent.

The June 2018 complaints

[110] On 5 June 2018 a complaint of the restaurant was received via a “Feedback Form”.⁶⁵ The complaint was from “camille burke” and related to delays in a take away order being available.

[111] A further complaint was received on 7 June 2018 from “Camilla Michie”.⁶⁶ That complaint said:

Hi Saffron,

We usually love Saffron but we were a little disappointed in our service tonight. Front of house staff are letting their chefs down! The food was very tasty and well presented. Can’t say the same for some of the staff. We arrived and we waited to be seated. And we waited and we waited. Finally we were seated by, we found out later his name was Raj and he was just downright rude and unpleasant.

[112] This complaint bears a striking resemblance to a “review” on TripAdvisor from 30 January 2018⁶⁷ which reads:

Front of house staff are letting their chefs down! The food was very tasty and well presented. Can’t say the same for some of the staff. We arrived and we waited to be seated. And we waited and we waited. Finally we were seated by, we found out later, one of the owners. I don’t know why she was there. She was just downright rude and unpleasant. If you don’t like you job get a new one. Won’t be back. [sic]

[113] A further complaint was received on 7 June 2018 from “Richard thomas”.⁶⁸ It read:

Dreadful service, nice food

The food was tasty but I’m not sure that will save them – my friends will not return! Took ages to get drinks – they were left sitting on the counter for 10 minutes. Half the table got their food, the rest 15 mins later after they tried to give it to the wrong table. I inform the guy in the Counter he seems to be don’t care not even say sorry. Dine in is Worst Service. I usually get takeaway and that’s all I’ll get from here in future. Very very disappointing.[sic]

[114] This complaint bears a striking resemblance to another TripAdvisor review of 12 January 2018⁶⁹ which reads:

Dreadful service, nice food

The food was tasty but I’m not sure that will save them – my friends will not return! Took ages to get drinks – they were left sitting on the counter for 10 minutes. Half the table got their food, the rest 15 mins later after they tried to give it to the wrong table. I usually get takeaway and that’s all I’ll get from here in future. Very very disappointing.

[115] The resemblance of the text of two of the June 2018 complaints to the TripAdvisor reviews from January 2018 cannot be put down to mere coincidence. It is enough to cast doubt as to the reliability of not just the two similar June 2018 complaints but the first complaint of 5 June 2018.

[116] Faced with the similarity of wording Mr Kandasamy said:

But that’s the thing - again, like there is not - you know - like somebody is sending me the email. I’m not - so maybe somebody copy and put it there too. I don’t know. That’s why I really don’t understand this. Like, they may be putting it in similar way of complaining. So it’s come through as a website feedback form. So if you see there it’s - if you go and fill up in the website anybody can look at our website or anybody write anything as well.

It’s quite a coincidence that they’re the same pretty much but these are from January 2018 when Mr Tiwari was on leave. I’m not sure - - -?  -Yes, that’s the thing. Like it just - you know - like it’s people sending me like a lot of - I do have a lot of fake email too. Like, you know, they says a lot of different things. It just what I receiving and that’s why we had a look at it because we always take customer complaint we should take it seriously. That’s all. You know we don’t know is it real or not real.⁷⁰

[117] Otherwise no explanation was given.

[118] Given the similarity in wording I do not accept the June 2018 complaints as legitimate complaints. I do not know who sent them or why. I have had no regard to them.

Reason for dismissal

[119] The Applicant was provided with two warning letters prior to the letter terminating his employment. Those letters detail the concerns the Respondent had as to the Applicant’s performance.

[120] In the first warning letter of 28 April 2018 the Respondent says of the Applicant:

•  He refused to carry out a reasonable [unspecified] management request;

•  Through his employment behaved in an “arrogant and haughty” manner in dealing with management;

•  His behaviour has at times been condescending and argumentative;

•  His performance has been unsatisfactory;

•  He seldom takes responsibility when things go wrong.

•  His behaviour has worsened since his application for permanent residency was refused.

[121] In the second warning letter of 9 May 2018 the Respondent raised a number of specific matters about the Applicant including:

•  Continuation of placing cash takings in the wrong place despite being told repeatedly where it should go;

•  Failure to charge the iPads;

•  Failure to keep bar fridges neat and tidy;

•  Failure to keep workspace and equipment clean and in working order.

[122] In the letter of termination on 10 June 2018 (although incorrectly dated 9 May 2018) the reasons given for dismissal were:

•  The Applicant not answering the phone over the previous two weeks;

•  No change in the Applicant’s argumentative arrogant behaviour; and

•  Continuation of poor work performance of the Applicant.

[123] Whilst these are relied on as the reasons for the termination of the Applicant’s employment by Mr Kandasamy I must determine if the Respondent has met the reverse onus of proof such that I can except these as the true reason for dismissal and conclude that the complaint of the Applicant was not a reason or part of the reason for dismissal.

Timeline

[124] A timeline of various communications and events is necessary. This timeline is restricted to the following documentary evidence.

[125] The Applicant says that he never saw the emails referred to in this timeline and/or the meetings referred to in those emails never took place.

[126] Mr Kandasamy said that the Applicant had been a good employee until his permanent residency was refused. The timeline would indicate that there were performance issues raised with the Applicant prior to the refusal of his permanent residency.

[127] Whilst previous performance issues were formally raised with the Applicant these date from 2016.⁷⁴ There is no evidence to support a finding that performance matters were raised consistently with the Applicant prior to 2018 although I do not accept that issues were not raised with the Applicant at least informally. The Applicant denies knowledge of any emails or meetings about his work performance during this period. On this I prefer the evidence of Mr Kandasamy. The Applicant’s recollection is convenient but not convincing.

[128] The Applicant’s evidence that it was following rejection of the Respondent’s sponsorship for his permanent residency that he decided he wanted to work “normal hours.” 75 That he communicated this to Ms Thom at that time is not supported by the evidence. He clearly sent the communication to Mr Thom on 3 March 2018 but the permanent residency sponsorship was not rejected until 6 April 2018.

Was adverse action taken against the Applicant?

[129] The Applicant’s employment was terminated. This constitutes adverse action.

Did the Applicant exercise a workplace right?

[130] The Applicant says that he often raised concerns about his hours of work, non-payment of overtime and duties with the Respondent (either Mr Kandasamy or Ms Thom) but was rebuffed. Mr Kandasamy says that the Applicant did not raise such issues with him.

[131] I accept that on 3 March 2018 the Applicant did raise with the Respondent (through Ms Thom) an issue with respect to his working arrangements. In the text message the Applicant said he would “be working according to my timesheet” and requested that he not be asked “to do any unreasonable work which doesn’t comes under my job and responsibility...”

[132] I am satisfied that these statements of how the Applicant wished to work in the future amounted to a complaint to the Respondent in relation to his employment. I consider it reasonable to conclude that the Applicant considered there was some inequity in his working arrangements and he wanted this put back on an even keel by working the hours on his timesheet and in accordance with his duties. Whether he was not working in accordance with his timesheet or duties is not to the point. The Applicant believed he was not and told the Respondent that he wanted to work as he advised.

[133] The Applicant is from a non-English speaking background and it would be unreasonable to expect him to conform to some formal, scripted framework of what a “complaint” should look like. It is enough that he put the complaint in writing (albeit a text message) and sent this to the Respondent.

[134] I am not convinced, however, that the Applicant made any complaint or inquiry with respect to his employment prior to 3 March 2018. It is a matter of assertion by the Applicant and denial by Mr Kandasamy that the Applicant asked to be paid for overtime he said he worked. Further, the evidence before me does not support a finding that the Applicant worked excessive hours or was not paid for the time he did work. On the latter matter I note the Award provision which allowed for annualisation of pay and the IFA signed by the Applicant on 10 January 2017. I also note that the Applicant has not provided any direct evidence that he sought at any time and through any means to record the actual hours he says he worked (as opposed to those recorded on the timesheets).

[135] On this basis I find that the Applicant did make a complaint or inquiry about his employment and that this complaint was made to the Respondent through Ms Thom on 3 March 2018. I am therefore satisfied that the complaint comes within the meaning of s.341(1)(c)(ii) of the FW Act.

Has the Respondent discharged the reverse onus of proof?

[136] Section 361 of the FW Act provides that, where an allegation is made that the adverse action was taken for a particular reasons (in this case because the Applicant made a complaint), it is presumed it was taken for this reason unless the Respondent can prove otherwise.

[137] It is therefore the responsibility of the Respondent to prove that it took the action it did to dismiss the Applicant because of his poor work performance.

[138] Given my findings as to the reliability of the evidence of both Mr Kandasamy and the Applicant and the inability of either party to explain conflicting contracts or timesheets, I am inexorably drawn to the documented information from 1 March 2018 until 10 June 2018 as set out in the table at paragraph [124].

[139] The proximity of the timing of the complaint made by the Applicant to Ms Thom about his hours of work and his duties on 3 March 2018 and the discussion of performance issues with the Applicant on 6 March 2018 supports the view that the performance issues were raised at least in part in response to the complaint made by the Applicant. Given Ms Thom did not appear as a witness and neither side sought to call her I do not know the motivations of Ms Thom in raising issues at this time and I make no finding in that respect.

[140] It may well be that the performance issues would have been resolved by the 6 March 2018 discussion had the Applicant’s permanent residency sponsorship not been refused. Indeed, no performance issues were raised with the Applicant after 6 March 2018 until eight weeks later when the first warning was given. In the meantime the Applicant had received advice that the sponsorship for his permanent residency had been rejected. I accept that the Applicant was upset at this development and he was angry with the Respondent when he found out. I accept that the Applicant’s performance at work deteriorated from this point. This is not surprising. The Applicant thought that employment with the Respondent would lead to permanent residency. He had spent three years on this approach. To find it was not going to happen must have been a shock to the Applicant. Further, it had cost him $9,000 and got him nowhere. The Applicant accepts that the relationship between himself and Mr Kandasamy deteriorated after this event.

[141] It is accepted that Mr Kandasamy can only give evidence as to what was in his conscious mind at the time he decided to terminate the Applicant’s employment and consideration should not be given to any “unconscious reasons”⁷⁶ for the adverse action. Clearly the matters that exercised Mr Kandasamy’s mind from 27 April 2018 onwards were a decline in the performance of the Applicant. I am satisfied, on the balance of probabilities, that such a decline did occur given the Applicant’s disappointment and anger at the failure of the sponsorship for his permanent residency. For this reason the Respondent had a basis for the decision it took to raise performance issues that did not include the exercise of the Applicant’s workplace rights.

[142] I am therefore satisfied that the exercise of the Applicant’s workplace right by making a complaint was not, objectively considered, the reason, or part of the reason that the Respondent took adverse action against the Applicant at the time he was dismissed. I am satisfied that Mr Kandasamy has discharged the presumption that the reason he dismissed the Applicant was because he exercised a workplace right to make a complaint.

[143] I do not accept the customer complaints of June 2018 as legitimate complaints of the Applicant’s performance at work and I have not had regard to them in reaching my conclusion. However, the disregard of them does not add weight to the arguments of the Applicant. Even if they were fabricated by the Respondent they support the proposition that what was in Mr Kandasamy’s mind at the time he dismissed the Applicant went to his performance as the complaints could only add weight to what was already there in the first and second warning letters. Had they been fabricated closer to 3 March 2018, the conclusion I reached, should I have had regard to them, may have been different.

Other matters

[144] To the extent necessary to deal with other matters put before me:

•  I do not accept that the Respondent was aware that participating in the DAMA process meant that it would be unable to sponsor the Applicant for permanent residency. Mr Foo’s evidence supports a finding that the NTDTBI had anticipated that this pathway would open up and anticipated Commonwealth confirmation of this. The NTDTBI had put out the message that the plan was to enable a pathway but this did not happen. It subsequently (although does not say when) changed its “messaging”.

In these circumstances it is not possible to find that the Respondent misled the Applicant on this matter. To this extent I note that the Applicant had engaged a migration agent who perhaps should have ensured the Applicant was receiving correct advice.

I also accept that the Respondent had no reason not to want to sponsor the Applicant in circumstances where it had sponsored four earlier applicants for permanent residency.

•  As mentioned earlier in this decision it is not within my jurisdiction to determine if the Applicant was paid correctly or afforded the appropriate terms and conditions of employment. I would observe that, whilst I have found that this application should be dismissed, that is only a finding in relation to this application. It may well be that the Applicant has other actions he can take in relation to his dismissal. He certainly has available to him other actions if he considers he was not paid correctly.

Conclusion

[145] In these circumstances the application must be dismissed. An order 77 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

L. Payne for the Applicant.

L. Matarazzo for the Respondent.

Hearing details:

2018.

Darwin:

December 10 and 11.

Final written submissions:

Applicant: 20 December 2018 and 8 January 2019.

Respondent: 21 December 2018 and 8 January 2019.

Printed by authority of the Commonwealth Government Printer

<PR706038>

 1   [2015] FWCFB 1956.

 2   Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (Barclay) (2012) 248 CLR 500 at [5] per French CJ and Crennon J.

 3   Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 at [29] per Buchanan J; Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 at [48] per Moore J.

 4   Barclay at [127] per Gummow and Hayne JJ.

 5   Transcript, PN426.

 6   Transcript, PN431.

 7  Ibid.

 8   Transcript, PN455-PN456 and PN488

 9   Transcript, PN472.

 10   Transcript, PN503.

 11   Transcript, PN469.

 12   Transcript, PN451.

 13   Transcript, PN454.

 14   Transcript, PN572.

 15   Exhibit A5, document L.

 16   Transcript, PN572-PN575.

 17   Exhibit A5, document P

 18   Exhibit A6, document Q.

 19   Transcript, PN699.

 20   Exhibit R3. attachments 13 and 14.

 21   Transcript, PN676, 679 and 695.

 22   Transcript, PN718, PN726-727.

 23   The NT DAMA (Designated Area Migration Agreement) is an arrangement between the Northern Territory Government and the Department of Immigration and Border Protection. It can provide an employer looking to sponsor a 457 visa holder with some concessions on matters such as the minimum wage otherwise required to be paid or minimum English language requirements.

 24   Transcript, PN848-9.

 25   Exhibit R3, attachment 9A.

 26   Transcript, PN 83.

 27   Transcript, PN88.

 28   Transcript, PN291.

 29   Exhibit A5, document G.

 30   Transcript, PN1144.

 31   Transcript, 1342-1344 and 1374.

 32   Transcript, PN1459, PN1461.

 33   Transcript, PN1628-1633.

 34   Exhibit R3, document 1.

 35   Transcript, PN1180.

 36   Transcript, PN1411 and PN1415.

 37   Transcript, PN1416.

 38   Exhibit R3, document 1A.

 39   Transcript, PN1378 and PN1380.

 40   Exhibit A5, document C.

 41   Ibid.

 42   Exhibit R6, document 1.

 43   Transcript, PN1492-1495.

 44   Transcript, PN1232-1237.

 45   Transcript, PN1486.

 46   Transcript, PN1254-1258.

 47   Transcript, PN1260.

 48   Exhibit R3, document 11A.

 49   Transcript, PN1267.

 50   Transcript, PN1269.

 51   See Exhibit R3, document 13.

 52   Exhibit R3, document 13 (last page).

 53   Transcript, PN1282.

 54   Exhibit A4.

 55   Transcript,PN1327.

 56   Exhibit R3, document 15.

 57   Transcript, PN1592-1597.

 58   Transcript, PN1072.

 59   Exhibit R2.

 60   Transcript, PN1085 and PN1089.

 61   Transcript, PN1096.

 62   Transcript, PN1112.

 63   Transcript, PN1017.

 64   MA000119.

65 Exhibit R3, document 13.

66 Ibid.

67 Exhibit A4, “Abysmal customer service”.

68 Exhibit R3, document 13.

69 Exhibit A4, “Dreadful service, nice food”.

70 Transcript, PN1524-PN1525.

71 Exhibit R3, document 6.

72 Exhibit R3, document 11A.

73 Exhibit R3, document 13 (last page).

74 Exhibit R3, document 4 (July 2016), document 7 (May 2016), document 8 (May 2016).

 75   Transcript PN572.

76 Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [No 1] (2012) 248 CLR 500 [146].

 77   PR701073.