An Indian restaurant in Perth and its owner have been fined a combined $200,000 for not paying a worker for close to four months, and then firing him via text message when he took a day of sick leave.
The Fair Work Ombudsman took Siner Enterprises Pty Ltd, operator of former Indian restaurant The Curry Tree, to the Federal Circuit Court for breaching sections of the Fair Work Act related to underpaying employees, failing to pay annual leave entitlements and failing to keep accurate employment records.
The worker, an Indian national, started working at The Curry Tree after responding to an advertisement on Gumtree. He worked at The Curry Tree between May and September 2012.
According to the Fair Work Ombudsman, the worker was initially paid $200 in cash for the first few days of work, but then was not paid for the next four months, during which he worked six evenings a week.
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Additionally, when the worker took a day of sick leave and offered to provide a medical certificate the following day, the restaurant owner fired him via text message, saying “dont come back”. The employer then sent a follow-up text message saying: “Dont expect .any sympathy,pls don’t my lawyer sue you for defamation of/mycharacter. Pls return key today”.
Once the worker reported this behaviour, the Fair Work Ombudsman commenced an investigation into the circumstances, and subsequently took legal action against the employer.
The employer denied all allegations of breaching the Fair Work Act by not paying the worker. The Federal Circuit Court heard the owner of the restaurant claimed he couldn’t afford to pay the worker, despite the business recording an annual projected turnover of $733,000 and a projected profit of $120,600 in the 2011 financial year. The judge found the business had the funds to pay the worker, but refused to do so.
“In the employment contract, Siner Enterprises had promised to pay [the worker] $47,500 plus superannuation, and did not fulfil this contractual promise nor did it pay [the worker] his minimum entitlements at law,” Judge Antoni Lucev said in his judgment.
Given the employee was considered to be a full-time worker, the Federal Circuit Court found it necessary for the business to backpay the worker’s salary and entitlements.
The court also found the worker’s termination “occurred in circumstances where he was exercising a workplace right” by taking leave, and there was no basis for firing the worker via text message. Additionally, the business was found to have failed to keep accurate records of the worker’s remuneration rate, entitlements and whether he was permanent, temporary, full-time, part-time or casual.
The business was penalised $174,075 and the owner of the business was penalised $34,815. The court has also ordered the business to pay the worker $32,661 in outstanding wages and compensation for economic loss.
“The conduct in relation to the termination of employment of [the worker] is, in the Court’s view, more egregious because of the manner in which it was carried out,” Judge Lucev said in his judgment.
In a statement, Fair Work Ombudsman Natalie James said businesses will be penalised if they are found to be taking advantage of overseas workers in Australia.
“Migrant and overseas workers in Australia are lawfully entitled to the same minimum wages and conditions as any other worker,” she said.
“There is no place in Australia for this kind of highly exploitative and callous treatment of a young, overseas worker — and we will not hesitate to pursue any business operator who seeks to engage in this type of conduct.”
Text message dismissals are generally unlawful
The Federal Circuit Court heard there was no opportunity for the worker to discuss the dismissal with his employer given he was dismissed through “a series of atrabilious outbursts in text messages”, and employment conditions were breached when the business failed to give the worker at least one week’s notice of dismissal.
Andrew Jewell, principal at employment law firm McDonald Murholme, tells SmartCompany a text message dismissal is generally an unlawful act.
“While [a text message] is technically a written dismissal it is expected that employers will meet with employees to discuss the reasons for dismissal and allow a response before moving ahead with the dismissal,” Jewell tells SmartCompany.
Jewell says businesses should ensure they have legal grounds to dismiss an employee if they don’t show up to work, as unlawful dismissals are still common.
“While it is unlawful to fire an employee because they took leave, in our experience this does still occur with relative frequency,” he says.
The Fair Work Ombudsman’s office continues to focus on employee underpayments across a wide range of industries, however, Jewell says even with increased media attention, underpayment cases are “still relatively common” in Australia.
SmartCompany attempted to contact The Curry Tree but did not receive a response. SmartCompany was unable to contact the business owner for comment.