Darling Harbour restaurant hit with $15,000 unfair dismissal payment
The Fair Work Commission has ordered Darling Harbour restaurant Baia The Italian to pay $15,000 in compensation for the unfair dismissal of an employee.
The employee had been underpaid.
Fair Work Commissioner Donna McKenna said the dismissal was harsh, unjust and unreasonable and said its conduct was "of the shabbiest type”.
She said the restaurant had used 457 visas to “leverage concerning potential work-related sponsorship in the course of underpaying an employee".
According to evidence presented to the Fair Work Commission, French national Sebastien Mezino had been told the restaurant in Cockle Bay was willing to offer visa sponsorship to dedicated employees.
Mr Mezino worked at Baia from November 2015 until April 2017.
He told the Commission there were times he worked more than 50 hours a week.
But, he said, he was happy to put in the extra hours because he wanted to prove to the company he was "worth their investment".
He said he had been told by the restaurant manager he could expect a promotion to a manager's position with an offer of visa sponsorship if his performance was up scratch.
He said he was put in charge of recruitment in January 2016 and he felt he was on track to becoming a manager. And by the end of April, he said he was working as a manager even though his promotion did not come with a pay rise. He was being paid $20 per hour without allowances including overtime and penalty rates.
He said he was carrying out a wide range of management and recruitment-related duties. Management had mentioned a "sponsorship opportunity".
He said he signed an "offer letter" for sponsorship under a 457 visa in November.
However, he was told his pay would not increase until the sponsorship was approved.
At the time, he was starting to feel underpaid and, in March this year, looked up the industry award.
That was when he started to see he had been allegedly underpaid since the beginning of his employment.
He said he raised his concerns when he met his manager in April and was told the information would be passed on to the restaurant owner who would "cancel my visa application and fire me".
He told the Commission that when he told the manager he had contacted the Fair Work Ombudsman, his manager had told him to "go ahead" because "this company has never been caught by Fair Work".
Mr Mezino made a claim to the restaurant for the alleged underpayment of $25,124.40 in wages on April 19 and said his name "disappeared from the roster" five days later after Sunday April 24.
Commissioner McKenna said she was satisfied Mr Mezino, who has left Australia, was unfairly dismissed.
She ordered the restaurant to pay him $15,000 in compensation.
"I am satisfied the dismissal was harsh, and unjust, and unreasonable," Commissioner McKenna said.
"I would add it was also behaviour of the shabbiest type for this employer to use its s.457 visa-related leverage concerning potential work-related sponsorship in the course of underpaying an employee – and then to peremptorily dismiss the employee when he sought to assert entitlement to proper pay and conditions under the relevant award and the National Employment Standards, and/or in accordance with the salary recorded in the signed documentation concerning the visa "offer letter".
by Leon Gettler, July 20th 2017
