Bhupinder Narwal -V- Madilink Australia Pty. Ltd

2016 WAIRC 00781

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

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BETWEEN : Claimant

Respondent

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Result : Representation: Applicant : In person Respondent : M F Niaz Reasons for Decision

(Given extemporaneously at the conclusion of the proceedings taken from the transcript as edited by the Commission)

1 Mr Bhupinder Narwal seeks payment of one month of pay in lieu of being given notice when his employment with the respondent came to an end. Mr Narwal says that Mr Niaz, on behalf of the respondent company, promised to pay him once months’ notice if he were terminated as part of his contract of employment, both verbally in a meeting that took place between Christmas and New Year 2015 and also by incorporating that term into a written contract of employment between the parties.

2 Mr Niaz for the respondent denies that the issue of notice was discussed with Mr Narwal. In relation to the written contract of employment (Exhibit 1 in these proceedings) Mr Niaz points out that the document is not signed by him, nor anyone on behalf of the respondent company, and he says that he never verbally agreed that that document was the contract of employment between Mr Narwal and the respondent. Exhibit 1 provides that each party is to give the other four weeks' notice. The document has been signed by Mr Narwal, but not by the respondent or anyone on behalf of the respondent. There was controversy in these proceedings about the document and how it came to be produced.

3 I do not need to resolve that dispute for the reason that it was not signed and there is no compelling evidence that there was an oral agreement that the document was to comprise the contract of employment between Mr Narwal and the respondent. Exhibit 1 can be put to one side.

4 I do not accept that there was a detailed discussion about all of the terms and conditions of Mr Narwal's employment on a date between Christmas and New Year's 2015, as Mr Narwal said there was, in which annual leave, sick leave and notice were all discussed. My reasons for this are that this was a new business, having opened on 22 December 2015 according to the evidence of Mr Niaz. And I accept that the circumstances of Mr Narwal having contact with Mr Niaz are largely as Mr Niaz described them; that is Mr Niaz had asked a friend and fellow restauranteur to recommend employees to him. The friend had recommended Mr Narwal and Mr Niaz discussed with Mr Narwal the possibility of Mr Narwal joining him on a probationary or provisional basis to see how things worked out. I find it extremely unlikely that as part of that discussion there would have been detailed discussion about terms and conditions of employment, such as annual leave, sick leave and notice. And I find it even more unlikely, indeed highly improbable, that had there been such discussions that Mr Niaz would have agreed to give Mr Narwal one month's notice if things didn't work out. The details of that discussion as Mr Narwal gave them, in my respectful view, seemed to have occurred to Mr Narwal “on the fly” in the course of these proceedings.

5 I accept however that Mr Narwal did in fact come to be employed by Mr Niaz as a full time employee. I do not accept that he was never employed and was only ever with the respondent company on a trial basis and then as a casual employee. Even if an employee is on a trial period, or working on a probationary or provisional basis, they are still employed and Mr Narwal was employed by the respondent. Things such as Mr Niaz giving Mr Narwal the keys to the business on occasions reinforce my belief that he came to be an employee of the respondent company and that an employment relationship arose.

6 I find that Mr Narwal was initially employed on a full time basis, even though it was on a trial basis, and my reasons for that emerge from the evidence given, which reveals that Mr Niaz did 2016 WAIRC 00781 need a full time employee. He said that he needed some help with the business, he needed someone to do an all rounder's job, but primarily to make the naan bread, and I accept that, but there was also other work involved in the position in terms of the cutting and preparation of food and delivery of food, and that when he talked with his friend he discussed that he was looking for a permanent employee.

7 I also find that when Mr Niaz talked with Mr Narwal, as he accepts that he did somewhere between Christmas and New Years, probably 28 December 2015, he told him he was looking for a permanent employee and I find that Mr Narwal became that permanent employee even though he did so on a trial or probationary basis.

8 I also find that Mr Narwal gave up his employment at Dome Cafe to take up the job with the respondent. Mr Niaz suggested in questioning to Mr Narwal that Mr Narwal had been sacked from his employment at Dome Cafe, but he did not produce any evidence in support of that and Mr Narwal denied that that had been the circumstance of the ending of his employment with Dome Cafe. I accept the trial period was not a success and that Mr Niaz told Mr Narwal this and that thereafter Mr Narwal worked for Mr Niaz in a different way and probably on a casual basis for a short period of time.

9 The question is whether Mr Narwal should have been given any notice, or payment in lieu of notice, when the trial period as a full time employee ended and he moved across to casual employment. As a matter of contract all employment contracts have terms implied into them and one of the terms that is implied into employment contracts is that reasonable notice be given, or payment made in lieu of that notice. It is open to me to find that implied into the contract of employment that clearly arose between Mr Narwal and the respondent was a reasonable notice period.

10 The only question in this matter is what was reasonable. This is to be determined, when it is not expressly provided, and I find it was not expressly provided here, by what is reasonable at the time the employment came to an end. In this case Mr Narwal had given up his job at Dome Cafe to work for the respondent. When the trial was brought to an end and his full time employment was also brought to an end he was offered some casual work, but not a great deal of casual work. I consider that, and mainly because Mr Narwal had given up other work to take up the job with Mr Niaz's company, even if on a trial basis, that the reasonable period of notice was one week.

11 Accordingly I find that Mr Narwal was entitled to one week's notice and as he was not given that notice, nor was any payment made in lieu of him being given that notice, I order that Mr Narwal be paid by the respondent one week of salary in lieu of notice and that is an amount of $880, it having been established in these proceedings that Mr Narwal was paid $22 an hour for the hours that he in fact did work for the respondent.

12 I will make an order that the amount of $880 be paid by the respondent to the applicant within 30 days and paperwork will be provided to you both setting that out in due course.

1 That is my decision. These proceedings are now adjourned.