A Perth restaurant is being pursued by the Fair Work Ombudsman for allegedly not paying a foreign chef for four months of work and then proceeding to sack him via text message when he called in sick.
Siner Enterprises, which operates the Curry Tree Indian restaurant in Nedlands, and its director Simon Mackenzie, are facing court for allegedly underpaying an Indian national, who was in Australia on a bridging visa, by $14,776.
The FWO claims the employee was paid $200 cash for his first few days of work, but following this he did not receive any payment for the next four months of work, despite working six evenings per week.
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Having commenced his employment in May 2012, the Indian chef was allegedly dismissed by his employer in September 2012 via text message.
The employee allegedly sent a text message informing his employer he was unwell and could not come into work, but would provide a medical certificate the following day. To this, he allegedly received a series of text messages from his boss which resulted in his termination.
The FWO claims Siner Enterprises and its director breached workplace laws which prohibit taking adverse action against an employee for accessing a workplace entitlement such as sick leave.
SmartCompany contacted Siner Enterprises, but received no response prior to publication.
M+K Lawyers partner Andrew Douglas told SmartCompany adverse action is normally known as a general protections claim, and involves a reverse in the “onus of truth”, wherein the employer must prove his or her innocence.
“In this case, it’s almost impossible to counter,” Douglas says.
Douglas says although the Indian chef was on a visa which permitted him to work, these cases are likely to become even more common as people come to Australia on visas where they are unable to work and people are forced to take jobs which pay cash-in-hand.
“These migrants are often treated appallingly by employers who hire them and then shed them as soon as they’re not needed.”
Douglas says it’s inevitable people in these circumstances who are not permitted to work end up being mistreated by “rogue employers”.
“We should never place people who immigrate in a position where they can’t work.”
The chef has so far been back-paid $2441, but the FWO is seeking full repayment and damages for the employee, as well as penalties.