A court has declared that the Consulate General of India in Sydney breached the Fair Work law after it failed to pay a former driver his dues despite a court order last year.
The barrister representing CGI Sydney conceded in the Federal Circuit Court in February last year that 53-year-old Hitender Kumar, a former Chauffeur-cum-messenger who won a $10,000 payout for unfair dismissal in 2016, should receive over $12,000 in unpaid overtime, employment bonus and national minimum wage order.
However, Mr Kumar was not paid and he came back before the court in April last year. The Court then ordered on 20th April 2018 that the Indian Consulate pay Mr Kumar the previously agreed amount of $12,177 with 4% interest and $393 in super.
Mr Kumar’s lawyer says he sent communications to the Consulate but the CGI did not pay and neither did it send any legal representation for the court hearings.
The Court said the CGI had chosen to ignore its orders.
“The Consulate General has had more than 12 months to deal with the settled part of the proceedings. It is painfully apparent that it has repudiated that settlement, which had been negotiated on its behalf by its legal representatives,” Judge Rolf Driver said.
Mr Kumar worked at the Consulate General of India in Sydney from 2010 to 2015 when he was dismissed from service. He was working from 9 am to 6:30 pm on a monthly salary of $3,150.
"Unreasonable acts or omissions of the Consulate General"
Though it was decided that the Fair Work award did not apply to him, the wages he received were below the national minimum wage.
The court said “there can be no real doubt” that the Consulate breached the Fair Work law with regard to the national minimum wage and overtime.
Though the court did not order penalties against CGI Sydney sought by Mr Kumar, it ordered the Indian Consulate to pay Mr Kumar’s legal cost that he was forced to incur because of “unreasonable acts or omissions of the Consulate General”.
“[Mr Kumar] has been forced to bring that application and to seek variation of the orders made by the Court in the principal judgment, because of the intransigence of the Consulate General, for which there is no evident justification,” Judge Driver said.
Mr Kumar’s lawyer Mukund Sharma claims the legal cost exceeds the actual amount that the court ordered the CGI Sydney to pay his client.
“If they had paid the agreed amount settled in the court in February last year, the matter wouldn’t have come to this. But just because the CGI Sydney chose to ignore the court orders and our repeated communications to comply with the order, that they have been ordered to pay the legal cost which is well over $18,000 on top of Mr Kumar’s dues,” Mr Sharma told SBS Punjabi.
Mr Sharma says he would apply for execution of the court orders if CGI Sydney doesn’t pay up.
Foreign State Immunity
Though Mr Kumar was also seeking penalties against the Consulate, the court did not make an order on penalties as CGI Sydney had foreshadowed it would claim foreign state immunity. The court said it wouldn't deal with the "important issue of foreign state immunity" without first hearing from the representatives of the Consulate General.
In 2016, Mr Kumar won an unfair dismissal claim with the Fair Work Commission ordering a $10,600 compensation.
SBS Punjabi has contacted Consul General of India and the Indian High Commission for comment.
