The former owner-operator of an Indian restaurant in Perth has been penalised more than $200,000 after paying an overseas cook nothing for almost four months’ work then sacking him by text message for taking a day of sick leave.
Simon Peter Mackenzie, who owned and ran The Curry Tree restaurant in Nedlands before it burnt down in 2014, has been penalised $34,815.
His company, Siner Enterprises Pty Ltd has been penalised an additional $174,075.
The penalties, imposed in the Federal Circuit Court, are the result of legal action by the Fair Work Ombudsman.
In addition to the penalties, the court has ordered Mackenzie and his company to pay the exploited worker a total of $32,661 in outstanding wages and compensation for the economic loss the worker suffered as a result of being sacked.
The worker is an Indian national, who was on a bridging visa when he started work as a cook at The Curry Tree in 2012.
He was paid $200 cash for his first few days of work but then worked six evenings per week for the next four months without receiving any pay.
When the worker sent Mackenzie a text message saying he would not attend work because he was unwell and would provide a medical certificate the following day, Mackenzie responded with a series of text messages terminating his employment.
Mackenzie initially texted the worker saying “dont [sic] come back”.
The worker lodged a complaint after being dismissed and the Fair Work Ombudsman commenced an investigation and then legal action.
At a contested hearing in the Federal Circuit Court, Mackenzie denied committing any contraventions of workplace laws but the court found Mackenzie and his company had committed all contraventions alleged by the Fair Work Ombudsman.
In addition to underpayments of basic entitlements and providing false records to Fair Work inspectors, the court found Mackenzie and his company had contravened workplace laws that prohibit taking adverse action against an employee, such as dismissing them for accessing a workplace entitlement such as sick leave.
Judge Antoni Lucev described the contraventions as “egregious” and found that the “deliberateness of the contraventions is plainly proven”.
“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,” says Lucev.
“Mackenzie went so far as to suggest that (the worker) might have somehow had an involvement in events, or events which led to, the burning down of the restaurant, an assertion which was simply not the subject of any evidence whatsoever.”
Judge Lucev also found Mackenzie had displayed no remorse, noting that Mackenzie told the court that “there will be no apology at all”.
Fair Work Ombudsman Natalie James says employers should be aware the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 has now come into effect, significantly increasing maximum penalties for conduct including deliberate exploitation of workers.
Image credit: The West
