$72,000 in penalties after employee underpaid, sacked by text message

by HCA27 Mar 2017
A restaurant owner and operator has been penalised for his “deliberate and calculated” conduct in dismissing an employee by text message because she refused to accept below-Award wages.

Jia Ning Wang, who owns the Fire and Stone Restaurant on Moreton Island, has been penalised $20,366 - and his company Golden Vision Food and Beverage Services has been penalised a further $51,830.

It is the second time the Fair Work Ombudsman has secured penalties against Wang and his company after they were last year penalised a total of $21,000 for paying a young Chinese backpacker just $10 an hour.

The most recent incident involves an American student who performed 69.75 hours of waitressing work at Wang’s restaurant over fortnight in December 2014.

The then 21-year-old refused to agree to Wang’s offers to be paid amounts that undercut her minimum entitlements and Wang threatened to terminate the student’s employment.  

Moreover, he told her the Award was “just a guideline” and that $20 per hour was the “standard minimum wage across the industry”.

Wang later sent the employee a text message telling her she would be sacked, stating that the employment “was not working out” and that “technically you don’t work for us”.

Subsequently, Wang failed to pay the student for any of the work she performed. The student complained and the FWO contacted Wang.

Wang denied the allegations and said his company never employed the student.

However, he later admitted to contravening workplace laws and his company finally back-paid $1963 in wages owed, almost a year after the wages were due.

Apart from the underpayment contraventions, the threat to terminate the student’s employment and the actual termination contravened the section of the Fair Work Act that makes it unlawful to take 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).

Furthermore, Wang and his company violated the section of the Fair Work Act that makes it unlawful for an employer to recklessly or deliberately make a false or misleading representation to a worker regarding their workplace rights.

Judge Michael Jarrett described the contraventions as “serious”, saying that “the conduct of the respondents that constitute the contraventions was plainly deliberate and calculated”.

Judge Jarrett noted that the conduct occurred despite Wang having been “put on notice” to pay employees’ minimum lawful entitlements in the context of Fair Work Ombudsman investigations of underpayment allegations dating back to 2011.

“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,” Judge Jarrett said.

“The respondents 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 praised the resilience of the student, who gave evidence that she found pursuing her wages “mentally exhausting” and that she had called her mother in tears after Wang threatened to dismiss her “because I didn’t want to lose my job for doing the right thing and standing up for myself and my rights”.

Judge Jarrett said: “laudably (the student) revealed herself to be very proactive and effective in looking out for her own interests. (Wang’s) attempts to take advantage of her youth and her status as a visitor to this country were ineffective”.

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COMMENTS

  • by HR Dude 27/03/2017 11:46:37 AM

    It would be interesting to see what an audit of his payments to his employees are. Surely no one believes that this woman was the only one to be affected? There would be many, many more that haven't complained. Does the FWO have a process to proactivly seek out further issues in cases like this?

  • by Fairgo 1/04/2017 4:20:10 AM

    Fair work and OSR should audit all of this restaurant's activities. Customers should shun the place and someone should inform the Tax Office who would bring down this person and his business. If he cheats on wages, he's cheating on tax,.

  • by Pat from Brisbane 7/04/2017 2:36:08 PM

    Maybe deliberated and repeated actions should attract a contempt of court penalty, with jail time and a prohibition on owning or operating a business for a set period, as might be the case in a bankruptcy or egregious behaviour as a company director. Otherwise you have the situation of fines or restitution orders they are probably not going to pay: they will likely fold the business and start up a new one.

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