This is a story of mixed emotions. A story of two young ladies Kajal Limbachaya and Vaishnavi Lella – from India who came to Australia on student visas and got caught in extreme financial squeeze while Melbourne was going through its longest of lockdowns.
Both found employment with OzeeOze Pty Ltd a private company owned by Shoukath Ali Mohammed and trading as Paradice Biryani at 254 Chapel Street Prahran.
Kajal Limbachaya says sometimes she would sleep on the couch at the restaurant – finishing 4.00am to start 10.30am the next day.
Although she and Vaishnavi faced real hard times working there, and were not paid what was their due, they not only survived, they both have managed to complete their degrees as well.
Both Kajal and Vaishnavi were promised $10 per hour, which is well below the minimum wage. Both agreed because with COVID lockdowns and restrictions, work was very hard to find.
The work at times would include day and night shifts, doing cooking, waitressing, and other odd jobs.
When she finished at 4am and had to work again at 10:30am, she said she slept at the restaurant in Melbourne because it wasn’t worth going home.
Kajal had answered a Gumtree job advertisement to get employment while Vaishnavi had learnt about the vacancy from her fiancé Vineeth Kudigana who was also employed there and was underpaid.
Kajal was employed for about two months between 3 January and 1 March 2020. Vaishnavi only worked for about five weeks from 24 January to 29 February 2020.
Vineeth kudigana worked at Paradice from 14 December 2019 to 11 March 2020.
Both Kajal and Vaishnavi struggled to get paid and received only small amounts well after having stopped working at Paradice Biryani.
According to court documents, between 4 March 2020 and 1 April 2020, Kajal was paid $3150.00 while Vaishnavi received $940 15 between February 2020 to 7 September 2020. Vineeth was paid $1785.00.
While studying to complete their degrees and struggling to get paid they got referred to JobWatch – a legal rights centre specializing in employment matters for the vulnerable.
Represented by the Principal lawyer Gabrielle Marchetti at JobWatch, all three of them – Kajal, Vaishnavi and Vineeth made claims in the Federal Circuit and Family Court of Australia for the unpaid wages and dues.
The court ordered as below:
Kajal to be paid $14,468.74
Vaishnavi to be paid $3,158.17 and
Vineeth Kudigana to be paid – $10,425.90.
But despite the Court orders of 11 February 2022, almost two years after they worked at the restaurant, they still have not been paid.
As the three found out at the court, their legal employer as found by the court happened to be the company OzzOze Pty Ltd and not Shoukath Ali Mohammed. And the company, has not assets to pay its debts.
Shoukath Ali Mohammed acted as agent of the company and thus could not be found liable to pay Kajal and Vaishnavi’s wages.
“Strange” it would seem to anyone reading. Because they all acted on the instruction of and worked for Shoukath Ali Mohammed. He also made (partial) payments to all three of them yet he could not be ordered to pay.
It was because of the path they (Kajal, Vaishnavi and Vineeth) took to get justice. Gabrielle Marchetti explains.
“Because these students accessed the court’s Small Claims jurisdiction. The court basically has two mechanisms for chasing up underpayments. Both of them rely on the employee proving that they were in fact an employee and proving that they’re covered by the Fair Work Act. But if your claim is not worth more than $20,000, you can use what is called ‘the Small Claims jurisdiction’. And that simply means that it’s a less legalistic less formal, and therefore faster access to justice. It’s a faster mechanism because it doesn’t require all the same sort of technicalities that the other system requires. But one of the disadvantages of using the small claims system is that the court can only make an order against the employer”, Gabrielle Marchetti told Bharat Times.
In this case, the company OzeeOze Pty Ltd is the legal owner of the business Paradice Biryani.
In a layman’s language, the court found that although Shoukath Ali did the talking, the three were working for OzeeOze Pty Ltd. Although the three received monies from Shoukath Ali, they were paid with monies coming out of the company’s bank accounts and thus by the company, their actual (legal) employer.
Could they get an order against Shoukath Ali Mohammed?
Yes, if they had not chosen Small Claims jurisdiction, explains Ms Marchetti:
“If you don’t go through the Small Claims jurisdiction, if you go through the other way, you can actually ask the court to make orders not only against the employer, but also against any third party who was knowingly involved in breaching the legislation.”
In this case the arrangement of $10 per hour could bind Shoukath Ali Mohammed as the third party knowingly involved in breaching the Fair Work legislation.
If they had not chosen the small claims path, could they ask the court to order Shoukath Ali to Mohammed to pay?
According to Gabrielle Marchetti, the answer is YES. The court could also order penalties, she explained:
“If it hadn’t been a small claim, we could have asked the court to make an order against the director of the company as well. And the court could have, apart from ordering compensation, the court could have also ordered extra penalties on top of the compensation, those penalties would be like a punishment, you know, it’s like it’s fine.”
Well for Kajal and Vaishnavi the past two years have been bitter sweet. They have succeeded in achieving their academic goals and have graduated since although they do expect to get paid, now that they are armed with the court orders.
Speak up, if you have an issue at work
Ms Marchetti cannot emphasize enough that students (or anyone else) – if suffering at work – should speak up. They will be helped and there is no cost.
“I would love to encourage other students to speak up when things are not right at work, whether they’re not being paid properly or whether they’re being treated unfairly in any way. It’s really important for students to know that that they can exactly they’ve got rights and they’ve got people that are here to help them free of charge”, Ms Marchetti says.
If you or someone you know is having issue, you can contact JobWatch here.
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