A business and its director who withheld wages from a worker for four months before sacking him by SMS for taking a day of sick leave has been penalised $200,000.
Simon Peter Mackenzie and his business Siner Enterprises owned and operated The Curry Tree restaurant in Perth’s riverside suburb of Nedlands until it was destroyed by fire in 2014.
Despite the tragic end to the business, it and Mr Mackenzie were prosecuted by the Fair Work Ombudsman (FWO) after the worker filed a complaint.
Mr Mackenzie was found in court to have hired the Indian national in 2012, and paid him $200 in cash for the man’s initial days of employment, but then did not pay a cent more for a further four months.
The worker was dismissed by text message when he attempted to call in sick, despite stating he would provide a medical certificate the following day.
Additionally, the worker was threatened with a formal accusation of theft if he did not return his key to the business premises that same day. He claimed he did not protest his treatment at the time because he had hoped Siner Enterprises would sponsor him to remain in Australia.
Mr Mackenzie contested the hearing in the Federal Circuit Court, claiming he had done nothing wrong, but the court found him guilty of multiple breaches of workplace regulations.
“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 Antoni Lucev said.
“Mr 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.
“Mr Mackenzie’s attitude as evidenced at the penalty hearing is cause for serious concern in relation to any possible future employment by him or by any company with which he is associated.”
As a result, the judge slapped Mr Mackenzie with a personal fine of $34,815 and his business with a fine of $174,075. This was in addition to the order to repay the worker a total of $32,661 in withheld wages.
Fair Work Ombudsman Natalie James criticised the hospitality sector in particular for its over-representation in prosecutions for wage underpayment.
“We have commenced more than 25 legal actions against restaurant industry operators over the past two years, which means the restaurant sector has accounted for about a quarter of our legal actions over this period,” she said.
“We will continue to scrutinise the restaurant sector closely and employers should be aware that we treat cases involving underpayment of visa holders and young workers particularly seriously because we know they can be vulnerable due to a lack of awareness of their entitlements, language barriers and a reluctance to complain.”
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.
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