A sushi business that was placed into administration last year has been ordered to pay a former employee $25,000 after the Fair Work Commission heard the employee was told they would need to become an independent contractor or resign.
John Foster began working for sushi wholesaler Sushi Tribe in March 2007 and according to the Fair Work Commission, reported to Nicola Mills, the chief executive of Sushi Tribe’s owner Pacific Retail Management.
Foster lodged an application with the Fair Work Commission last year alleging he was unfairly dismissed.
Foster told the commission he was asked to either take a voluntary redundancy package or become an independent contractor in June 2015.
However, the former employee claimed the redundancy offer was retracted the next month.
Foster handed in what he called a “forced resignation” in August.
Sushi Tribe entered voluntary administration in November 2015 and, later, liquidation.
Liquidator Mitchell Ball, from BPS Recovery, resolved to wind-up the company in February this year.
Foster asked the Fair Work Commission to order he be compensated for lost income, arguing he was subjected to a “deliberate campaign to manage him out” which had a significant impact on his wellbeing.
Pacific Retail Management, the company that owned Sushi Tribe before it was liquidated, did not appear at a January hearing and did not lodge any witness statements.
Sushi Tribe’s administrators also did not appear at the January hearing.
On April 8 the Fair Work Commission ordered Sushi Tribe to pay Foster $25,000.
“I am satisfied that the applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate,” Fair Work Commission deputy president Jeff Lawrence said in his judgment.
“I am further satisfied that each party has been accorded a ‘fair go all round’.”
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In a statement provided to SmartCompany, Foster said he and his family are pleased with the Fair Work Commission’s decision.
“This is a moral victory against bullying in the workplace,” Foster says.
“All I ever wanted was to accept my redundancy and get on with life.”
Foster says his redundancy was denied by his direct managers, as well as long service leave entitlements, and he encourages other employees who believe they are in a similar position to take action.
“Having represented myself throughout this claim, I’ve committed many hours to researching and building my case over the last six months,” he says.
“I encourage anyone who is offered a sham contract or treated harshly, unjustly or unreasonably to contact the Fair Work Commission immediately, for a fair go.”
Employment lawyer Peter Vitale told SmartCompany employers need to be mindful of the sham contracting provisions in the Fair Work Act.
“The sham contracting provisions essentially say that you can’t terminate someone’s employment because you want to turn them into a contractor,” Vitale says.
SmartCompany contacted Pacific Retail Management, the company that operated Sushi Tribe before it was placed into administration, but the company declined to comment.
*This article was updated on April 19 to include more information from the Fair Work Commission’s judgment and again on April 20 to include a response from John Foster.