A cook in Perth was sacked by text message for taking a sick day

Carl De Souza/AFP/Getty Images
  • An Indian restaurant owner was fined more than $200,000 after paying an overseas cook nothing for months then sacking him by text message for being sick.
  • In the Federal Court, Simon Peter Mackenzie, who owned and ran the Curry Tree restaurant in Perth, was fined $34,815 and his company another $174,075.
  • The Fair Work Ombudsman said: “There is no place in Australia for this kind of highly exploitative and callous treatment of a young, overseas worker.”

A cook who told his boss he was sick and couldn’t come to work received a text message: “Don’t come back.”

The Perth restaurant owner, Simon Peter Mackenzie, then threatened the cook, whom he hadn’t paid for several months, saying he would sue for defamation and then get the police to arrest him.

In the Federal Court, facing legal action by the Fair Work Ombudsman, Mackenzie showed no remose, saying: “There will be no apology at all”.

Judge Antoni Lucev told the court he had “cause for serious concern” for anyone employed by Mackenzie or by any company with which he is associated.

The former owner-operator of the Curry Tree restaurant in Nedlands, Perth, was fined more than $200,000 after paying the cook nothing for almost four months then sacking him by text message.

Mackenzie, who owned and ran the restaurant before it burnt down in 2014, was fined $34,815 and his company, Siner Enterprises Pty Ltd, another $174,075.

The court also ordered Mackenzie and his company to pay the worker, an Indian national, who was aged 24 and in Australia on a bridging visa, a total of $32,661 in outstanding wages and compensation.

The worker, responding to a job ad on Gumtree, was paid $200 cash for his first few days of work but then worked six evenings per week for the next four months without getting any pay.

The man was reluctant to complain because he had hoped Mackenzie’s company would sponsor him on a work visa, which would allow him to remain in Australia.

When the worker sent Mackenzie a text message saying he would not attend work because he was unwell and would provide a medical certificate the following day, Mackenzie responded with a series of text messages terminating his employment.

Mackenzie also texted: “Dont expect .any sympathy,pls don’t my lawyer sue you for defamation of/mycharacter. Pls return key today”.

Mackenzie then sent a follow-up text: “If you dont answer i will ring the police and say you possession of my keys to my business and I want them bak. they will come to your house and arrest you for theft”.

The court found that Mackenzie and his company contravened laws prohibiting action against an employee for accessing a workplace entitlement such as sick leave.

Judge Lucev described the contraventions as “egregious” and found that the “deliberateness of the contraventions is plainly proven”.

The judge was also critical of Mackenzie’s conduct in court, saying he had displayed “sheer belligerence” and directed “hostility” towards the worker and the Fair Work Ombudsman’s legal representatives.

“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,” Judge Lucev said.

Judge Lucev also found that Mackenzie had displayed no remorse, noting that Mackenzie told the court that “there will be no apology at all”.

“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,” Judge Lucev said.

The judge said the penalty should deter employers in the restaurant and hospitality from similar conduct.

“The maintenance of the safety net is particularly pertinent in an industry such as the restaurant and hospitality industry where it is now almost notorious that there are significant pockets of non-compliance in relation to the payment of wages and entitlements,” Judge Lucev said.

Fair Work Ombudsman Natalie James says the court’s decision sends a message that there are serious consequences for deliberately exploiting overseas workers.

“This case involved shameful exploitation of a vulnerable worker and the employer’s conduct in this matter thoroughly deserved the strong criticisms it received from the Court,” says James.

“Migrant and overseas workers in Australia are lawfully entitled to the same minimum wages and conditions as any other worker.

“There is no place in Australia for this kind of highly exploitative and callous treatment of a young, overseas worker — and we will not hesitate to pursue any business operator who seeks to engage in this type of conduct.”

The Fair Work Ombudsman has started more than 25 legal actions against restaurant industry operators over the past two years.

“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,” she says.