The claimant, a former kitchenhand at King Kong Bar & Restaurant (King Kong) that is operated by Bai Wei Xiang Pty Ltd (respondent), brought a claim to the Industrial Magistrates Court using the small claims procedure under section 548 of the Fair Work Act 2009 (Cth) (FWA).

The claimant contended that he was employed as a casual employee washing dishes and doing other general duties at King Kong and that, by failing to pay him all monies owed for time worked at King Kong, the respondent contravened the FWA. The claimant also claimed that the Restaurant Industry Award 2020 (Award) applied to his employment and the respondent had failed to pay the correct hourly rate. The claimant sought an order under the FWA for the payment of all monies owed for time worked, amounting to $4,360.

The respondent disputed the claim, arguing that the claimant was not an employee but rather an independent contractor who worked at King Kong for a short period during Chinese New Year. The respondent contended that it had paid the claimant for all work done except $2,200 for work done for a 3-week period, which the respondent contended had been withheld as agreed compensation for a broken pot. 

The primary issue to be determined by the Court was the nature of the legal relationship between the claimant and the respondent. If the Court found the claimant was an employee, the further issues to be determined were: did the Award cover the claimant’s employment and was the claimant paid in full for all hours worked. 

The evidence presented to the Court from the claimant included a witness statement, copies of text messages between the claimant and respondent on various occasions, bank statements showing payments made by the respondent, and a handwritten timesheet recording the hours he worked. The claimant denied any conversation about being engaged by the respondent as a contractor and maintained that he was always an employee.

The respondent’s director and manager provided witness statements and oral evidence at trial as well as timesheets showing the claimant’s clock-in and clock-out times, bank statements and text messages. The respondent claimed in the proceedings that the claimant worked flexible hours and was paid per task performed. In considering the terms of the contract between the parties, the Industrial Magistrate identified that “there was no real explanation of how or what [the claimant] is paid per task – that is – is the claimant paid per dish washed, per bench wiped, per square meter of floor swept and how much is [the claimant] paid for these tasks – that is – is he paid $10 to wash 10 plates, $5 per bench wiped?”.

The Court found the claimant’s evidence to be more consistent and credible and found that the claimant’s role, work hours and payment terms were consistent with that of a casual employee of the respondent, not an independent contractor. In finding the employment relationship was that of an employer-employee, the Court determined the respondent is a national system employer and had an obligation under section 323(1)(a) of the FWA to pay the claimant in full for amounts payable for the performance of work. The Court also found that the Award applied to the claimant’s employment as a casual kitchenhand at King Kong and that the respondent had failed to pay the claimant the correct wages as per the applicable award rates under the Award.

The Industrial Magistrate found that “notwithstanding the claimant did not directly express the minimum hourly rate under the Award he says he should have been paid, it is sufficient that he identified the relevant provisions of the Award (as he did in his witness statement) and identified that he had been underpaid by the respondent. The fact that he mistakenly thought he was owed an amount based on $20 per hour, does not change what he was, in fact, owed.”

The Court also addressed the respondent's withholding of $2,200 from the claimant's wages for allegedly breaking a pot. The Court found that the respondent was not lawfully entitled to withhold any wages payable to the claimant unless they did so in compliance with sections 324 or 325 of the FWA, which was not the case here.

Ultimately, the Court ordered the respondent to pay the claimant $10,167.97 in unpaid wages, as required under section 323 of the FWA. The full decision can be read here.