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The FWO found the manager dismissed the Bangladeshi for lodging a workers’ compensation claim.
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Ex-restaurant owner penalised almost $60k for exploiting visa holder
27 March 2023
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10 minute read
A former Perth restaurant owner has been penalised a record $58,950 after a judge found he had “not exhibited one iota of remorse or contrition” for exploiting a Bangladeshi visa holder.
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The landmark penalty, the largest ever imposed against an individual business operator in WA, was secured in the federal court against Sushil Kumar who previously owned and operated the Bricklane British Curry House in Leederville.
On top of the almost $60,000 penalty, Mr Kumar was also ordered to back pay the worker $38,822.
The Fair Work Ombudsman (FWO) commenced an investigation after the visa holder – who was employed as a cook at the time – requested assistance after being dismissed when he lodged a workers’ compensation claim with Mr Kumar.
The investigator found the affected worker was recruited from Bangladesh in 2015 and was sponsored to work as a cook at the Bricklane Curry House on a subclass 457 skilled worker visa.
The cook was contracted to a $54,000 salary and normally worked six days a week at the restaurant between August 2015 and February 2016, often performing more than 50 hours of work a week, according to the FWO.
However, it was discovered that after the employee received his fortnightly wages Mr Kumar required him to withdraw cash and pay back $434 of his wages, telling him it was a condition of his visa.
This unlawful arrangement along with a failure to pay at all for some of the periods of work led to the cook being underpaid a total of $38,822.
The ombudsman also discovered Mr Kumar had unfairly terminated the cook the day after he was sent a workers’ compensation claim, which contravened the Fair Work Act 2009.
Judge Humphreys found the conduct was “highly organised, planned and deliberate,” and that subsequently Mr Kumar engaged in “a deliberate attempt to mislead both the Fair Work Ombudsman and the court through a false narrative supported by fabricated documents.”
“Mr Kumar has not exhibited one iota of remorse or contrition.”
“Exploitation of such persons is a matter of the utmost seriousness and deserving not only of public condemnation but the imposition of significant penalties.”
The judge said there was a need to make it clear to those seeking to exploit migrant workers in Australia on temporary work permits that any financial gain they might achieve would be more than offset by penalties imposed.
Fair Work Ombudsman Sandra Parker said enforcement action to protect vulnerable visa holders was a priority for the FWO.
“The substantial penalty sends a clear message that the exploitative conduct we have seen in this matter will not be tolerated in any Australian workplace,” said Ms Parker.
“Employers must pay the lawful minimum pay rates that apply to all employees, regardless of a worker’s nationality or visa status.”
“There is also no place for adverse action against any worker form exercising their rights, including to make a workers’ compensation claim.”
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