2015 WAIRC 00529
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2015 WAIRC 00529

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 17 JUNE 2015 AND THURSDAY, 2 JULY 2015

DELIVERED : THURSDAY, 23 JULY 2015

FILE NO. : M 147 OF 2014

BETWEEN
:
GUNJAN RAJESHKUMAR SHAH
CLAIMANT

AND

GOGO'S FOOD SERVICE PTY LTD
RESPONDENT

Catchwords : Alleged breach of the Restaurant Industry Award 2010 (MA000119) by failing to pay wages and annual leave entitlements

Legislation : Fair Work Act 2009

Instruments : Restaurant Industry Award 2010 (MA000119)

Result : Claim proven in part

REPRESENTATION:

CLAIMANT : MR P. MULLALLY OF WORKCLAIMS AUSTRALIA AS AGENT FOR THE CLAIMANT
RESPONDENT : MR G. GOVARDHAN (DIRECTOR) FOR THE RESPONDENT


REASONS FOR DECISION
Overview
The Respondent
1 Gogo’s Food Service Pty Ltd (the Respondent) operates within the restaurant industry, supplying food to associated businesses through Gogo’s Bulk Kitchen and in running its own restaurants. The Respondent’s primary restaurant is known as Gogo’s Madras Curry House, situated in Beaufort Street, Mount Lawley.
2 The Respondent has interests in other similar businesses under the banner “Gogo’s”. At the material time, it had an interest in Gogo’s Masala Craft at Booragoon and Gogo’s Masala Zone at Willetton. I have not been able to ascertain the quantum of the Respondent’s interest in Gogo’s Masala Craft. It is clear however that it had a fifty per cent stake in Gogo’s Masala Zone. The other fifty per cent is held by Dreamz Infinite Pty Ltd (Dreamz).
3 Gogo’s Masala Zone opened its trading to the public in late 2013. Its operation entailed selling Indian food products and running a café/restaurant. Its food provisions were sourced from Gogo’s Bulk Kitchen.
4 The operation of Gogo’s Masala Zone was primarily conducted by the directors of Dreamz. One of them, namely Mr Mithun Chaitanya Gandu (Mr Gandu), ran the business day-to-day. His involvement in the business was in a full-time capacity. The other Director, Mr Saket Podisetty (Mr Podisetty) managed the financial and regulatory affairs of the business, including its employment obligations. Mr Podisetty’s involvement in the business was in a part-time capacity. The Respondent’s Director Mr Govindha Rajalu Govardhan (Mr Govardhan), did not have any significant hands on involvement in running the business. He simply monitored its progress and gave advice when required.
The Employment Relationship
5 The Respondent employed Mr Gunjan Rajeshkumar Shah (the Claimant) to work as a cook at Gogo’s Masala Zone. It is not in issue that the Claimant possessed the necessary qualifications to do that work.
6 On 28 June 2013 the Claimant applied for a Temporary Work (Skilled) (subclass 457) Visa (457 Visa) to work as a qualified cook under the sponsorship of the Respondent. The reason why the Respondent sponsored the Claimant was because Dreamz was unable to meet the necessary criteria for sponsorship. The Respondent guaranteed the Claimant a salary of $53,900.00 per annum.
7 The Claimant asserts that he commenced his employment with the Respondent on 17 October 2013, when his 457 Visa was granted. The Respondent denies that and says that the Claimant commenced working for Gogo’s Masala Zone on or about 1 December 2013 when it first started trading.
8 It is common ground that the Claimant then worked continuously for Gogo’s Masala Zone from his commencement date until he resigned on 6 September 2014. Further, it is not in dispute that the Restaurant Industry Award 2010 (MA000119) (the Award) applied to the Claimant in his employment.
9 The history of the relationship between the parties stems back to 2011 when the Claimant and Mr Govardhan first met in Melbourne. The Claimant asserts that in 2012, Mr Govardhan persuaded him to leave Melbourne and come to Perth with the promise of employment on a 457 Visa. When in Perth in 2012, he worked for the Respondent’s businesses over several months but returned to Melbourne because Mr Govardhan failed to “make good” on his promise to employ him on a 457 Visa.
10 A few months later, the parties re-established contact. There is a dispute as to who initiated that contact but nothing turns on that. It suffices to say that as a result of that contact, the parties agreed that the Claimant would be employed by the Respondent to work at Gogo’s Masala Zone in Willetton. To facilitate that, the Respondent sponsored the Claimant in making his 457 Visa application.
11 The Claimant says that, pending the granting of his 457 Visa, he worked for the Respondent at Gogo’s Masala Craft in Booragoon. The Respondent denies employing the Claimant at that time and says that the Claimant was independently employed by Gogo’s Masala Craft.
12 Upon the granting of his 457 Visa, the Claimant commenced working at Gogo’s Masala Zone. His work hours were from 10:00am to 9:00pm each day except Tuesdays. He was paid an annualised salary of $53,900.00 which converted to a weekly wage of $1,036.53. His wages were payable fortnightly. The Claimant was therefore entitled to $2,073.06 (gross) for a fortnight’s work. This payment, as permitted by the Award, was inclusive of overtime, penalties, allowances and leave loading.
13 During the course of the Claimant’s employment the Respondent did not pay the Claimant his wages as they fell due. The Claimant contends that he is owed $33,385.44 in unpaid wages. He says he is also owed $3,681.65 in unpaid annual leave entitlements.
Termination of Employment
14 It was the non-payment of wages that led the Claimant to resign from his employment. In his letter of resignation (Exhibit 3), dated 6 September 2014, the Claimant said:
“…Over the past year I have aired my grievances to no avail. I was employed on a 457 visa from the 17th of October 2013 and was not paid for the first two months as per my salary package. Thereafter, paid employment commenced, which was not frequant (sic). However, I have received no superannuation, no annual leave and no sick leave allowance; even when I was deemed to be medically unfit throughout my employment. Since the 15th of May 2014 my pay has been withheld leaving myself and my dependent in financial, mental, physical strife and unable to sustain ourselves and therefor (sic), I am resigning and will be taking the matter to the Fairwork Ombudsman.”
15 The Respondent (and Dreamz) did not respond to the Claimant’s allegations concerning the non-payment of wages and his commencement date.
16 Subsequent to his employment ending, the Claimant made an application to the Fair Work Commission, seeking compensation for unfair dismissal. That matter was settled by the parties entering into a Deed of Settlement. It unnecessary to set out the terms of settlement, save to say that the Claimant’s ability to pursue his entitlements under the Award was preserved.
The Claim and Response
17 The Claimant contends that between 17 October 2013 and 6 September 2014 he should have been paid the gross sum of $49,970.00, but was only paid the gross sum of $16,584.56. He identifies the payments made to him as follows:

Date
Amount (Gross)
Amount (Net)
06/01/2014
$ 2,073.07
$ 1,693.07
21/01/2014
$ 2,073.07
$ 1,693.07
29/01/2014
$ 2,073.07
$ 1,693.07
12/02/2014
$ 2,073.07
$ 1,693.07
11/03/2014
$ 2,073.07
$ 1,693.07
24/04/2014
$ 2,073.07
$ 1,693.07
12/05/2014
$ 2,073.07
$ 1,693.07
10/10/2014
$ 2,073.07
$ 1,693.07
Total Amounts
$16,584.56
$13,544.56

18 The Respondent concedes that it has not paid the Claimant all of his wages and annual leave entitlements. It says that it has paid most of what was due to the Claimant and that the payments were made to him either by direct deposit or by cash payments.
19 Mr Podisetty, who was responsible for Gogo’s Masala Zone’s payroll accounts, made a statement dated 2 July 2015 subsequently adopted in his evidence in which he said that Gogo’s Masala Zone had paid the Claimant wages totalling $33,169.12. He said at least four fortnightly payments referred were made in cash. It suffices to say that the Claimant denies that his employer paid him in cash.
20 I reproduce the table set out in paragraph 20 of Mr Podisetty’s statement showing the alleged payments :

S.No
Pay Period
Gross Pay
Tax Withheld
Net Pay
1
02/12/2013 to 15/12/2013
$2,073.07
$380.00
$1,693.07
2
16/12/2013 to 29/12/2013
$2,073.07
$380.00
$1,693.07
3
30/12/2013 to 12/01/2014
$2,073.07
$380.00
$1,693.07
4
13/01/2014 to 26/01/2014
$2,073.07
$380.00
$1,693.07
5
27/01/2014 to 09/02/2014
$2,073.07
$380.00
$1,693.07
6
10/02/2014 to 23/02/2014
$2,073.07
$380.00
$1,693.07
7
24/02/2014 to 09/03/2014
$2,073.07
$380.00
$1,693.07
8
10/03/2014 to 23/03/2014
$2,073.07
$380.00
$1,693.07
9
24/03/2014 to 06/04/2014
$2,073.07
$380.00
$1,693.07
10
07/04/2014 to 20/04/2014
$2,073.07
$380.00
$1,693.07
11
21/04/2014 to 04/05/2014
$2,073.07
$380.00
$1,693.07
12
05/05/2014 to 18/05/2014
$2,073.07
$380.00
$1,693.07
13
19/05/2014 to 01/06/2014
$2,073.07
$380.00
$1,693.07
14
02/06/2014 to 15/06/2014
$2,073.07
$380.00
$1,693.07
15
16/06/2014 to 29/06/2014
$2,073.07
$380.00
$1,693.07
16
30/06/2014 to 06/07/2014
$2,073.07
$380.00
$1,693.07

21 In so far as the claim for annual leave entitlements are concerned, the Respondent admits that the Claimant has not been paid. It says however that the Claimant has incorrectly calculated what is due to him on account of asserting a starting date of 17 October 2013 rather than 1 December 2013 which was his actual start date.
Issues
22 There are three main issues in dispute; they being:
1. the commencement date of the Claimant’s employment; and
2. whether the Claimant received the payment of wages in cash, and other forms, which remain unaccounted; and
3. whether the Claimant received one or two payments subsequent to his resignation.
Determination
Admissions
23 During the course of giving evidence in this matter Mr Govardhan, on behalf of the Respondent, made certain admissions. They were that the Respondent:
1. employed the Claimant; and
2. had not paid all of the Claimant’s wage entitlements; and
3. has not paid the Claimant his annual leave entitlements.
24 Save for 10 October 2014 there is no dispute that the Respondent has directly deposited, into the Claimant’s bank account, those amounts asserted by the Claimant (see paragraph 17 above). The pivotal issue which remains is whether the Claimant has received other payments in addition to those acknowledged by the Claimant.
25 For the purpose of these proceedings Mr Podisetty, on behalf of the Respondent, created a wages summary table (see Exhibit 10), which is said to reflect the Claimant’s entitlements and payments made to him by Gogo’s Masala Zone. I replicate that table:

S.No
Pay Period
Gross Pay
Tax Withheld
Net Pay
Pay Date
Comments / PAY DATE

1
02/12/2013 to 15/12/2013
$2,073.07
$380.00
$1,693.07
16/12/2013
6/1/14
PAID ON

2
16/12/2013 to 29/12/2013
$2,073.07
$380.00
$1,693.07
30/12/2013
21/1/14
PAID ON

3
30/12/2013 to 12/01/2014
$2,073.07
$380.00
$1,693.07
13/01/2014
Paid on 29.1.14

4
13/01/2014 to 26/01/2014
$2,073.07
$380.00
$1,693.07
28/01/2014
Paid on 11.2.14

5
27/01/2014 to 09/02/2014
$2,073.07
$380.00
$1,693.07
11/02/2014
Paid
25.2.2014

6
10/02/2014 to 23/02/2014
$2,073.07
$380.00
$1,693.07
25/02/2014
Paid 11.3.14

7
24/02/2014 to 09/03/2014
$2,073.07
$380.00
$1,693.07
11/03/2014
Paid 08.4.14 Mithun Paid

8
10/03/2014 to 23/03/2014
$2,073.07
$380.00
$1,693.07
25/03/2014
Paid 23.4.14

9
24/03/2014 to 06/04/2014
$2,073.07
$380.00
$1,693.07
8/04/2014
Paid 13.5.14

10
07/04/2014 to 20/04/2014
$2,073.07
$380.00
$1,693.07
23/04/2014
Paid
cash 28/5/14 and 30/5/14
11
21/04/2014 to 04/05/2014
$2,073.07
$380.00
$1,693.07
6/05/2014
Paid
cash 23.6 and 27.6
12
05/05/2014 to 18/05/2014
$2,073.07
$380.00
$1,693.07
20/05/2014
paid 1693
cash 16.7
13
19/05/2014 to 01/06/2014
$2,073.07
$380.00
$1,693.07
3/06/2014
paid 1693
cash 7.8 and 14.8
14
02/06/2014 to 15/06/2014
$2,073.07
$380.00
$1,693.07
17/06/2014
paid 1693 on 9.9.14

15
16/06/2014 to 29/06/2014
$2,073.07
$380.00
$1,693.07
1/07/2014


16
30/06/2014 to 06/07/2014
$2,073.07
$380.00
$1,693.07
8/07/2014


17
07/07/2014 to 20/07/2014
$2,073.07
$380.00
$1,693.07
22/07/2014


18
21/07/2014 to 03/08/2014
$2,073.07
$380.00
$1,693.07



19
04/08/2014 to 17/08/2014
$2,073.07
$380.00
$1,693.07



20
18/08/2014 to 31/08/2014
$2,073.07
$380.00
$1,693.07




26 The Respondent concedes in its own table (Exhibit10) that not all wages payments due have been paid. However, it contends that other payments made by Gogo’s Masala Zone remain unaccounted. The following unaccounted payments can be distilled from Exhibit 10.

Date
Pay Period Ending
Net Payment
Method of Payment
25/02/2014
11/02/2014
$1,693.07
Not indicated
08/04/2014
11/03/2014
$1,693.07
Not indicated
28/05/2014
30/05/2014
23/04/2014
23/04/2014
$1,000.00
$ 695.00
Cash
Cash
23/06/2014
27/06/2014
06/05/2014
06/05/2014
$1,500.00
$ 193.00
Cash
Cash
16/07/2014
20/05/2014
$1,693.00
Cash
07/08/2014
14/08/2014
03/06/2014
03/06/2014
$1,200.00
$ 493.00
Cash
Cash

Onus of Proof
27 Given that the Respondent asserts payments in excess of those asserted by the Claimant, the onus rests with the Respondent to prove, on the balance of probabilities, that it made those extra payments.
Cash Payments
28 The Respondent’s contention that the Claimant was paid in cash is supported by the evidence of Mr Podisetty and Mr Gandu. Mr Gandu said that he made each of the cash payments and Mr Podisetty said that he witnessed the making of at least some of those payments; however he could not be specific as to the dates.
29 Both Mr Podisetty and Mr Gandu testified that they came to an arrangement with the Claimant that he would be paid in cash as and when funds became available. Cash flow difficulties experienced by the business prevented the timely and full payment of wages. They maintain that, with respect to four pay periods, they paid the Claimant his net entitlement in cash, albeit late. Each of them testified that they recorded those payments in the work diary (Exhibit 6) which Gogo’s Masala Zone had provided the Claimant. Despite having made that record, they did not ask the Claimant to sign the entry to acknowledge receipt of the money paid in cash. The Claimant has not adopted any of those entries.
30 I observe that the diary entries about the alleged cash payments are no more than self-serving notations. As such they carry little weight. It would have been quite easy for Mr Gandu and Mr Podisetty to have had the Claimant acknowledge receipt of such payments. They said that they failed to do that because they trusted the Claimant. Why they would have trusted the Claimant in the circumstances is unclear. It seems that at the time the parties were in conflict about the standard of the Claimant’s work and the lateness of the payment of his wages. In the circumstances, given that those issues existed, it is unlikely that Mr Gandu and Mr Podisetty on the one hand and the Claimant on the other would have retained absolute trust in one another.
31 At the time the cash payments were allegedly made, Gogo’s Masala Zone was failing. Cash flow difficulties existed and customer complaints about the quality of food produced by the café were significant. The business’ operation was in a mess. The Claimant was not paid his wages. On occasions when he was paid, tax was not deducted and remitted to the Australian Taxation Office. The Claimant was generally not provided his payslips. On the one occasion that the Claimant was given a payslip, following a demand made by him, it was wrong (see Exhibit 4). The payslip contains obvious errors on its face. It is said to be a payslip for the period 30 June 2014 to 6 July 2014 which is for one week. However, the number of hours worked and the amount payable reflects a fortnightly payment. Further, the “year to date” details at the bottom of the payslip, is clearly wrong. There are also problems with other employment documents relating to the Claimant which were produced by the Respondent. One such document is the 2014 PAYG Summary (Exhibit 5). The figures therein are inconsistent with the wages summary table (Exhibit 10).
32 It appears that the Respondent’s record keeping in respect to the Claimant was not only lacking, but also inaccurate. Indeed, some of the documents produced were false and misleading. In the circumstances, no confidence can be placed on the Respondent’s employment records. That being the case, the significance of the diary entries concerning the cash payments is completely undermined.
33 The Respondent bears the onus of satisfying this Court that, on the balance of probabilities, the cash payments were in fact made. The evidence of Mr Gandu and Mr Podisetty cannot be accepted to prove the cash payments. Their evidence is uncorroborated by documentary evidence and constitutes no more than bare assertions without specificity to time, place and circumstance of each alleged payment.
34 The Claimant on the other hand, gave his evidence in a credible fashion. Given that he vehemently denies receiving the cash payments, I am not prepared to find, based on the otherwise uncorroborated evidence of Mr Gandu and Mr Podisetty, that cash payments were made. The Respondent has failed to discharge its evidentiary onus of establishing the making of the cash payments alleged.
Other Payments
35 Dealing with payments allegedly made on 25 February 2014 and 8 April 2014, all that needs to be said is that there is no direct evidence, either oral or documentary, which establishes the making of those payments to the Claimant.
Payments Subsequent to Termination
36 The Claimant initially asserted that he had received a fortnightly instalment of wages on 10 October 2014. However, he now contends that he did not receive that payment at that time but rather that he received it on 10 September 2014. Mr Podisetty has produced documentary evidence in the form of a bank statement showing a payment on 10 September 2014. The Claimant maintains that he has only received one payment after termination.
37 The Respondent says however, that it has made two payments to the Claimant following the cessation of his employment. The first being on 10 September 2014 and the second on 10 October 2014. The second payment was as a consequence of the resolution of the unfair dismissal proceedings. At paragraph 5 of his Statement dated 2 July 2015, Mr Podisetty explained that last payment represented two weeks’ annual leave entitlements, as had been agreed.
38 Given that the Claimant originally asserted payment on 10 October 2014, and given that it has not been demonstrated that such assertion was in error, I find it more probable than not, that there were in fact two payments made as Mr Podisetty asserts. I find that the first was made on 10 September 2014 and the second was made in October 2014 when the unfair dismissal claim was settled.
Commencement Date
39 Mr Govardhan, Mr Podisetty and Mr Gandu have all testified that the Claimant commenced employment with the Respondent at Gogo’s Masala Zone on or about 1 December 2013, roughly coinciding with the time that Gogo’s Masala Zone started operating. Apart from their direct testimony about that, there is evidence in the form of the PAYG Summary (Exhibit 5) which indicates a commencement date of 1 December 2013.
40 The Claimant says that when his 457 Visa was granted, he was working at Gogo’s Masala Craft in Booragoon. Upon being informed (on 17 October 2013) that his 457 Visa had been granted, he was instructed to immediately transfer to Gogo’s Masala Zone in Willetton, which he did.
41 The Claimant has produced copies of purchase orders that he photographed using his mobile telephone in order to establish his presence at Gogo’s Masala Craft Booragoon, on or about 17 October 2013 and at Gogo’s Masala Zone Willetton thereafter.
42 He explained the circumstances of how he came to take photographs of Gogo’s Masala Zone purchase orders in November 2013. He said that at the time Gogo’s Masala Zone was experiencing difficulties with its Wi-Fi and facsimile communications. Consequently it was impossible to transmit food orders to Gogo’s Bulk Kitchen using those facilities. To get around the problem, he took photographs of the purchase orders and sent them to Gogo’s Bulk Kitchen. In that way, Gogo’s Masala Zone’s food requirements were procured. I accept the Claimant’s evidence of how he came to be in possession of the photographs. Further there is no reason to suspect the genuineness of the photographs.
43 The photographs (Exhibits 8 and 12) are very important because they place the Claimant at Gogo’s Masala Zone in November 2013, which corroborates his evidence about having started there from 17 October 2013. Perhaps more importantly, the photographs show regular procurement of food supplies during November 2013. It is unlikely that there would have been ongoing regular procurement of food if the business was not operational at that time. The photographs place the Claimant at the workplace and his explanation for taking the photographs is consistent with him working at that place at that time. The photographs not only undermine the testimony of Mr Govardhan, Mr Podisetty and Mr Gandu but also draw into question the veracity of the PAYG Summary (Exhibit 5).
44 In the end result I accept the Claimant’s evidence concerning his commencement date and find that the Claimant started working for the Respondent on 17 October 2013.
Conclusion
Liability of Gogo’s Food Services Pty Ltd
45 Despite admitting that the Respondent employed the Claimant, Mr Govardhan suggests that Gogo’s Food Services Pty Ltd should not be found liable because Gogo’s Masala Zone was run by the directors of Dreamz. It is submitted that the Respondent had little to nothing to do with any shortcomings of Gogo’s Masala Zone.
46 The Respondent and Dreamz are jointly and severally liable for any liabilities incurred by Gogo’s Masala Zone. The Respondent cannot now somehow extricate itself from the liabilities incurred by Gogo’s Masala Zone. That is particularly so in this matter, in which the Respondent admits employing the Claimant. It cannot be the Claimant’s employer in name only without responsibility. It was incumbent upon the Respondent to ensure that it met all of its legal obligations with respect to the Claimant as its employee. The Respondent is clearly liable for any failure in that regard.


Outcome
47 In his Further and Better Particulars of Claim lodged 19 January 2015 and his Statement (see Exhibit 1), the Claimant has set out, in Table A, the wages earned and payable during the period of his employment from 17 October 2013 up to and including 6 September 2014. The table is reproduced below:

(A) Wages owed for total period 17/10/2013- 06/09/2014
Transaction Number
Date
Amount
1
17/10/2013
$1,451.15
Started on a Thursday therefore subtract 3 days ($621.92) from usual fortnightly payment
2.
28/10/2013
$2,073.07
3.
11/11/2013
$2,073.07
4.
25/11/2013
$2,073.07
5.
09/12/2013
$2,073.07
6.
23/12/2013
$2,073.07
7.
06/01/2014
$2,073.07
8.
20/01/2014
$2,073.07
9.
03/02/2014
$2,073.07
10.
17/02/2014
$2,073.07
11.
03/03/2014
$2,073.07
12.
17/03/2014
$2,073.07
13.
31/03/2014
$2,073.07
14.
14/04/2014
$2,073.07
15.
28/04/2014
$2,073.07
16.
12/05/2014
$2,073.07
17.
26/05/2014
$2,073.07
18.
09/06/2014
$2,073.07
19.
23/06/2014
$2,073.07
20.
07/07/2014
$2,073.07
21.
21/07/2014
$2,073.07
22.
04/08/2014
$2,073.07
23.
18/08/2014
$2,073.07
24.
01/09/2014
$2,073.07
25.

$829.23
Resigned on the 6th of September 2014 therefore add 4 working days extra pay from the previous payment
Total

$49,970.00

48 The table appears to contain errors. The first pay period has been double-counted because the Claimant started work on 17 October 2013 and therefore no payment was due to him on that day. The first payment due to him was in fact for the period ending 28 October 2013, and that was for a lesser amount than $2,073.07, because the whole fortnight was not worked.
49 The Claimant suggests in the table that $621.92 ought to be deducted for three days not worked in the first pay period. I observe however, that the daily rate used is incorrect as it is based on a ten day working fortnight, whereas the Claimant worked a 12 day fortnight. Accordingly, his daily rate was $172.76 and not $207.30 as suggested.
50 Further, a deduction of three days’ pay is inappropriate because during that first fortnightly period he only missed one day’s work. The Claimant has made deductions for the Tuesdays not worked in that first fortnight but I observe that he was not required to work on those days.
51 It follows that for the first pay period, the Claimant should have been paid $1,900.31 ($2,073.07 - $172.76) and not $1,451.15 as claimed.
52 The error of using the wrong daily rate is repeated for the last pay period. The amount payable for that period was $691.04 ($172.76 x 4) and not $829.23.
53 I find that the Claimant should have been paid as follows:

Pay Period
Amount Payable
First pay period to 28/10/2013
$ 1,900.31
Pay period ending 11/11/2013 to 01/09/2014
$45,607.54
Last pay period (4 x $172.76)
$ 691.04
Total Payable
$48,198.89

54 The Claimant asserts that he was paid $16,584.56 (8 x $2,073.07). However for reasons previously stated I find that he was, on 10 September 2014, also paid a gross fortnightly entitlement of $2,073.07 ($1,693.07 net). Given that amount had not previously been accounted for, I find that amount actually received by the Claimant from the Respondent in satisfaction of his Award entitlements, is $18,657.63.
55 The amount owed to the Claimant is the difference between the wages payable and those received, being $29,541.26.
56 In addition, the Claimant is entitled to receive payment for untaken accrued annual leave which was payable to him upon the termination of his employment but which was not paid. That amount, being $3,067.08 is calculated as follows:

Employment period
324 days
Proportion of leave (324 ÷ 365 x 20 days)
17.753424
Daily rate ($2,073.07 ÷ 12 days)
$ 172.76
Total Payable ($172.76 x 17.753424)
$3,067.08

57 The Claimant is entitled to recover from the Respondent the total amount of $32, 608.34.





G. CICCHINI
INDUSTRIAL MAGISTRATE