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Labour Officer v David Sunil Chandra Prasad (trading as Sunil's Savusavu Kava Supplies) [2019] FJET 21; ERT Criminal Case 22 of 2018 (4 June 2019)

KEYWORDS: Section 247(b) Employment Relations Act 2007, Failing to comply with written demand in respect of arrears of wages

CASES CONSIDERED

Background

[1] The Defendant has been charged with failing to comply with a written demand made by a Labour Inspector on 3 May 2018, in respect of arrears of wages for Sonam Sonali Singh, in the amount of $5,136.42. On 2 October 2018, the Defendant entered a plea of not guilty to the charge.

The Case of the Labour Officer

Evidence of Ms Sonam Singh

[2] Mr Sonam Singh was called to give evidence in relation to her entitlement for unpaid wages. Ms Singh stated that:-

• (i) She commenced employment with Sunil’s Savusavu Kava Supplies (“Sunil’s”) on 17 March 2017;
• (ii) Together with her husband Ravi Nand Sami, would each work a 12 hour split shift at the shop;
• (iii) That their wages were offset for the accommodation at the shop in the amount of $250.00 per week;
• (iv) The Employer Mr Prasad would not balance the shop takings in front of them, but thereafter make deduction to their wages, on the basis that he would claim a “shortfall”.
• (v) Was not receiving wages and the Employer was not maintaining any times records as required.
  

[3] In cross examination, it was put to the Witness that the shop only operated until midnight, that it was not a 24 hour store and that she had been accused of stealing monies. Ms Singh was shown a declaration signed by her husband and herself dated 1 July 2017, that agreed to repay the sum of $1282.35 for ‘shortages’ identified by Mr Prasad, pertaining to the employment period. The Witness claimed that they were forced to sign the repayment agreement, “because we were told (the Owner) was in the right”. According to Ms Singh, after the first shortfall claim by Mr Prasad, he made another one for $700.00.

[4] In re-examination, the Witness reiterated that she and her husband were not allowed to count stock or balance the monies.

Kishore Vishwar Goundar

[5] The next witness to give evidence on behalf of the Labour Officer, was Mr Kishore Goundar. Mr Goundar was a self-employed carpenter, that also was employed at the Link Road Kava Shop in Drasa Avenue. According to the Witness:-

• (i) He commenced working at the Link Road shop on 13 June 2017;
• (ii) That he and his family were to replace Ms Singh and her husband and the owner had told him to come to the shop a day earlier under the guise that he was measuring shelving for the store;
• (iii) The shops hours were 7 days a week, 24 hours a day, with the exception of early Monday morning, when it would close between 1.00am and 6.00am.
• (iv) He was paid $150.00 a week and had signed one contract but was not provided with a copy;
• (v) Believed that Mr Prasad was ‘cheating them’ by falsifying stock records, to later claim short falls;
• (vi) Would only receive $70 or $30 wages after shortfalls were deducted;
• (vii) Denied having entered his signature in the employer’s Wages Register and claimed that these were the employer’s own entries.
  

[6] During cross examination, Mr Goundar told the Tribunal that his accommodation was provided as part of his contract, although he was charged by the Employer $30 for each person staying at the premises. According to Mr Goundar, at some point Mr Prasad had been investigated for the non- payment of funds into the Fiji National Provided Fund (FNPF) and that he was made to counter sign some of the payment columns in the wages register to give the impression that all was in order.

[7] Ms Ravai challenged the Witness as to whether the shop was really operating 24 hours a day and Mr Goundar replied that he himself had purchased grog at the store at 2.00am, prior to commencing work there. In re-examination, Mr Goundar told the Tribunal that it was his daughter who was a Business/Accounting student at University, who uncovered that he was being cheated by his employer, through the falsifying of stock records.

Nitesh Kumar

[8] Mr Nitesh Kumar is the driver of a private taxi vehicle and claimed that he would park near the ‘corner shop^[1]’ from around 6pm until he would finish work. The witness said that he had been buying grog at the store since 2016 and often on Thursday, Friday and Saturday nights, sit outside the shop drinking grog until the morning. The witness told the Tribunal that the shop was a 24 hour store. In cross examination, Mr Kumar told the Tribunal that he previously worked with Mr Goundar and that the store was operating for 24 hours a day. Counsel, said to the witness, “I put to you it was only operating to 12 am”, to which he replied, “it can’t be, only on Sunday 1am to 6am”^[2].

Mr Arshad Ali

[9] Mr Ali is a Labour Office with the Ministry of Employment. According to Mr Ali, the Employer visited the Labour Office and inquired what he should be paying his workers who were working 12 hours a day. Mr Ali told the Tribunal that he explained to Mr Prasad the way in which normal hours and overtime worked and did an inspection of the records of the employer. According to the Labour Officer, Ms Singh and her husband made a complaint against the employer, two weeks after they left their employment. Mr Ali told the Tribunal, that his office deemed that the Employer was not keeping proper wages and times records. It was following a reconciliation of the wages and times records with the employee complaints, that Mr Ali served a demand notice on Mr Prasad^[3]. During cross examination, the Labour Officer was challenged by Counsel as to the discussions held with Mr Prasad during their meeting, but maintained that the employer had made clear that each worker was working for 12 hours a day as part of a split shift arrangement.

The Case of the Employer

Mr David Sunil Chandra Prasad

[10] Mr Prasad told the Tribunal that he was a businessperson who commenced his kava shop operations in February 2017. Mr Prasad stated that he had two shops, one at Namoli and the other in Lautoka Town. Mr Prasad stated that the town store only operated from 6am to 12 am Monday to Saturday and 8am to 11 pm on Sundays. The Witness said that the Namoli store was a 24 hour store. Mr Prasad stated that the ‘corner shop’ (town store) operated by 8 hour shifts and that he employed Ms Singh from March 2017 to 11 July 2017 at the rate of $20.00 per day, where she worked an 8 hour day.

[11] Mr Prasad identified a contract that the former employee signed on 7 May 2017^[4] and claimed that she was provided with a copy of that document. The Witness produced copies of a rental agreement and rental receipts, that he claimed supported the view that there was not accommodation provided at the shop during the period at challenge by Ms Singh. According to Mr Prasad, in relation to the shortfalls of cash, he had said that Ms Singh had been shown the books from the stocktake and together with her husband began crying, stating that “her parents came and slept here – maybe they did something”. Mr Prasad maintained that his time and wages records were being kept appropriately and that it made no sense otherwise, as he was using these books to make payment to his staff.

Ms Feroza Banu

[12] Ms Banu is a former employee of Mr Prasad who worked at the owner’s Namoli kava shop in 2018. According to Ms Banu, the shop operated on a system of 3 x 8 hour shifts and she claimed that the Link Road store closed at midnight. The former employee explained how store stocktaking was her responsibility and that shortage deductions if they were to occur, were of a small amount such as $5.00, $10.00, or $2.00.

Mr Kamlesh Chand

[13] The next witness called to give evidence on behalf of the Defendant, was Mr Kamlesh Chand. Mr Chand stated that he worked at Sunil’s Kava Shop at Namoli and said that the 24 hour shop operated with 3 x 8 hour shifts. According to the Witness, when working at the Namoli store, they would often get customers from Link Road, when that shop closed at midnight.

Mr Mohammed Aleem

[14] The final witness called by the Defendant was Mr Mohammed Aleem, who was a van driver, that claimed that he too would park his vehicle outside the corner shop. Mr Aleem claimed that the store would close at midnight each night.

Analysis of the Evidence

[15] This case is one where the respective witnesses are presenting polar opposite stories. The activities of employers working within this industry, were the subject of an earlier decision in this Tribunal^[5]. At the end of the day, the most important evidence is that of the Labour Inspector Mr Ali and that of Mr Prasad. Mr Ali claims that the Employer had come to the Ministry seeking clarification as to how to pay workers engaged in 12 hour split shifts. On the other hand, the Employer claimed that he was only interested in arrangements dealing with termination entitlements and also clarifying that he was wanting to deduct monies from these workers because of what he considered to be dishonest conduct.
[16] The Tribunal prefers the evidence of Mr Ali. It makes no sense whatsoever that he would fabricate such discussions. Ms Singh and her husband were clearly residing at the store and this was accepted by Mr Prasad, when he himself made reference to Ms Singh’s parents having stayed on the premises.

[17] The Tribunal accepts the evidence of Mr Ali, that the Employer had not been paying the workers based on the usual formula where additional hours were worked. The failure to maintain time and wages records as required for the purposes of Section 45 of the Employment Relations Act 2007, only served to compound the problem for Mr Prasad.

[18] Whether there were shortfalls at work or not, is a separate issue. If the Employer believed the workers had been misappropriating monies, there are clear remedies available for him to pursue. There was simply no evidence of wrong doing on the part of the complainant Ms Singh.

[19] Based on the split shift calculations as prepared by the Labour Officer^[6], Ms Singh should have been paid based on a calculated 84 hours per week, except in the case of every second week, where the working hours were 5 hours less, due to the shop closing between 1.00am and 6.00am on Mondays. What that means and this was the advice that the Employer had initially sought from the Labour Officer, is that a worker is paid normal rates for the eight hours each day that she or he works and thereafter overtime, based on 1 ½ times for the first two hours and double time thereafter. The Sunday shift would attract double time for the 12 hours duration, with the exception of the Monday morning shift, when the store was closed between the hours of 1.00am and 6.00pm.

[20] Due to an error contained within the calculation sheet for the Pay Week on 19 May 2017, the revised calculations have been made as follows:-

Public Holiday $97.28

Annual Leave $81.07

Total $5716.99

Less FNPF ($457.36)

Total Payable $5259.63

Conclusions

[21] The Tribunal finds that the Employer is guilty of the offence as charged and will hear the parties as to appropriate penalty to be imposed.

[22] Separate Orders will be issued to give effect to the payment decision. The matter is to be relisted for submissions in relation to penalty on a date to be fixed.

Decision

It is the decision of this Tribunal that:-

(i) The Defendant is guilty of the offence of failing to pay upon demand to a Labour Officer within 7 days, wages dues to Ms Sonam Sonali Singh, in contravention of Section 247(b) of the Employment Relations Act 2007.

(ii) The Defendant is required to pay the outstanding wages to the Labour Officer of $5259.63, within 28 days.

(iii) The parties will be heard on a date to be fixed, in relation to the submissions dealing with penalty and costs.

Mr Andrew J See
Resident Magistrate

^[1] The ‘corner shop’ is the name given by locals to the Link Roads Kava Shop at Drasa Avenue.
^[2] The Tribunal understood this evidence to mean, that Sunday morning was in fact a reference to Monday morning at that time.

^[3] See Exhibits L3 to L5.
^[4] See Exhibit E 2

[5] Labour Officer v Atil Kumar Enterprises Ltd [2018] FJET 13; ERT Criminal Cases 119 and 120 of 2017 (14 February 2018)

^[6] See Arrears of Wages Calculations Form dated 27 October 2017.