Written by Ben Desir and Troy Wild, NRA Legal
Jia Ning Wang, owner and operator of the Fire and Stone Restaurant, has been received a $20,366 penalty, and his company Golden Vision Food and Beverage Services Pty Ltd has been penalised an additional $51,830 after it was found that he deliberately exploited young international students.
Wang had employed the 21 year old American student as a waitress over a two week period. After the student refused Wang’s offers to be paid below her entitlement under the Award, Wang threatened to terminate her employment. Wang told the student that the Award was “just a guideline” and that $20 per hour was the “standard minimum wage across the industry”.
A few days after speaking with the employee, Wang dismissed her via text message, explaining that her employment “was not working out” and that “technically [she did not] work for [them]”.
Wang then failed to pay the employee for the 69.75 hours of work she had performed for the restaurant over the two week period.
The student later lodged a complaint and the Fair Work Ombudsman contacted Wang, who at the time was also involved in proceedings with the Ombudsman regarding contraventions by another company he owned and operated.
Wang first denied the allegations and denied that his company had ever employed the employee, but later admitted to contravening workplace law and back paid the student $1,963 almost a year after the student had been terminated.
The Ombudsman later decided to commence proceedings against Wang and his company in the Federal Circuit Court.
The Ombudsman argued that Wang’s threat to terminate the student’s employment and the actual termination had also contravened the Fair Work Act (FW Act) provision against taking adverse action against an employee for exercising a workplace right, such as the right to receive minimum entitlements and the right to inquire about entitlements.
The Ombudsman also argued that Wang and his company had contravened the FW Act section that makes it unlawful to recklessly or deliberately make false or misleading representations to an employee about their workplace rights.
In handing down penalties for the contraventions, Federal Court Judge Michael Jarrett labelled the contraventions as “serious” and that “the conduct of the respondents that constitute the contraventions was plainly deliberate and calculated”.
Judge Jarrett noted that as a result of his earlier run-in with the Ombudsman, Wang had been put “on notice” to pay his employees’ minimum entitlements. His Honour stated:
“I think the background is also relevant because it demonstrates that Golden Vision or Mr Wang seems to have done little to change their business practices. The respondent should be left in no doubt that its conduct and treatment of (the student) was an extremely serious contravention of Australian workplace laws.”
Judge Jarrett said that the penalties should “serve as a warning to others that similar conduct can have serious consequences and ought not to be repeated”.
This scenario shows how a poor situation can be compounded and made worse by an employer’s misconduct. After underpaying the student, the employer contravened a far more serious provision of the FW Act by taking adverse action against the student for exercising a workplace right.
Employers must be mindful that employees have protections against unlawful action being taken against them and that the punishment for breaching these protections can be severe. If you have any concerns at all about an ongoing dispute with an employee or are considering taking disciplinary steps with an employee call today on 1800 RETAIL (1800 738 245) to speak with one of our workplace advisors.