Restaurant owner said to have 'deliberately' exploited visa worker
The Federal Circuit and Family Court of Australia recently punished a former Perth-based restaurateur for exploiting a visa holder. The worker also reportedly suffered a back injury, but the business fired him after he filed a claim for workers’ compensation.
The worker reportedly experienced several Fair Work violations, including a cashback scheme, no payment for certain periods of work, and not receiving the contractual and other entitlements when they were due. These violations resulted in him being short-changed a total of $38,822.
In 2015, the employer’s Bricklane British Curry House illegally recruited a worker from Bangladesh and granted him a subclass 457 skilled worker visa.
The court found that the worker was “a vulnerable person who was recruited from overseas to fill the position of cook within the employer’s restaurant.”
According to records, he was required to return a portion of his wages in cashback. He also put in a six-day week, frequently working more than fifty hours between August 2015 and February 2016.
In one of his complaints, the worker said that when he received his two-week salary, the employer “forced him to take out cash” and “reimburse $434 of his earnings,” falsely claiming it was a “requirement of his visa.”
“Over a relatively short period of time, he was underpaid an amount of approximately $39,000,” the court said.
Later, the worker suffered injury at the workplace, and said the employer “prevented him from resuming his duties after they were hurt.”
In 2016, when the worker filed a workers’ compensation claim, the employer reacted by dismissing him the next day, and then notifying the Department of Immigration and Border Protection of the termination of his employment.
“He was left without any income in a foreign country in circumstances where [the employer] reported his unlawful termination to relevant migration authorities which caused further distress to worker in circumstances where he was unable to support himself his wife and his three-year old child,” the court said.
The worker, after being terminated, sought help from the Fair Work Ombudsman, who initiated an inquiry and later took the case to court.
The regulator argued that the employer is an experienced company director and had actual knowledge of the relevant provisions of the relevant award and the Fair Work Act.
It also found that he was “aware of the unlawfulness of failing to comply with the relevant obligations owed to employees.”
In its decision, the court said the worker’s dismissal violated the Fair Work Act by taking adverse action against him due to his legal right to file a workers’ compensation claim.
The court noted that the employer’s violations were “highly organised, planned and deliberate,” with the misconduct extending over a 10-month period and “involved deception.”
“Deliberateness is heightened in relation to the adverse action since the [employer] developed a false scheme to terminate the worker with erroneous termination letters. Similar attempts were made with the production of retrospective pay slips,” it said.
In imposing the penalties, the court noted that the employer had failed to show any indication of remorse or regret, and so, it imposed $58,950 against it, an amount that is the largest penalty ever imposed against an individual business operator in Western Australia.
“Workers in these circumstances require strong support by the courts in terms of the imposition of penalties so it becomes clear that those who seek to exploit vulnerable fine workers bought here on temporary work permits, will not be tolerated and that any financial advantage that might be gained will be more than offset by the imposition a pecuniary penalties,” the court said.
