24 March 2023

A former Perth restaurant operator has been penalised $58,950 for exploiting a Bangladeshi visa holder and then dismissing him because he lodged a workers’ compensation claim after injuring his back at work.

The Fair Work Ombudsman has secured the penalty in the Federal Circuit and Family Court against Sushil Kumar, who formerly owned and operated the Bricklane British Curry House in Leederville.

It is the largest penalty ever imposed against an individual business operator in WA as the result of a Fair Work Ombudsman legal action.

In addition to the penalty, Judge Douglas Humphreys had ordered Mr Kumar to back-pay the worker $38,822.

The exploitation of the affected worker, which included unlawfully requiring him to pay cashback out of his wages, occurred after he was recruited from Bangladesh in 2015 and sponsored to work as a cook at the Bricklane British Curry House on a subclass 457 skilled worker visa.

Fair Work Ombudsman Sandra Parker said taking enforcement action to protect vulnerable visa holders in Australian workplaces remains a top priorities 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,” Ms Parker said.

“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 for exercising their rights, including to make a workers’ compensation claim.”

“Any workers with concerns about their pay or entitlements should contact us.”

The affected worker generally worked six days a week at Bricklane British Curry House, often performing more than 50 hours work per week between August 2015 and February 2016.

The cook was contracted on an annual salary of $54,000.

However, after the cook received his fortnightly wages, Mr Kumar required him to withdraw cash and pay back $434 of his wages, falsely telling the cook it was a ‘condition of his visa’.

The unlawful cashback arrangement, failure to pay at all for some periods of work, and the underpayment of contractual and other entitlements led to the cook being underpaid a total of $38,822.

The cook gave evidence that the underpayments made it difficult for him to support himself, his wife and three-year-old daughter.

Mr Kumar also prevented the cook from returning to work following an injury sustained in the workplace.

After the cook sent a workers’ compensation claim to Mr Kumar in 2016, Mr Kumar responded by dismissing him the following day and then contacted the then Department of Immigration and Border Protection to inform them that the cook’s employment had been terminated.

The dismissal contravened the Fair Work Act because it amounted to adverse action against the cook for exercising his workplace right to lodge a workers’ compensation claim.

After being dismissed, the cook lodged a request for assistance with the Fair Work Ombudsman, which commenced an investigation and then legal action in court.

Judge Humphreys found that “the conduct which led to the breaches was highly organised, planned and deliberate” and that Mr Kumar had subsequently 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,” Judge Humphreys said.

Judge Humphreys said that the worker was a vulnerable person recruited from overseas, and that the “exploitation of such persons is a matter of the utmost seriousness and deserving of not only public condemnation but the imposition of significant penalties”.

Judge Humphreys said there was a need to make it clear to those seeking to exploit migrant workers brought to Australia on temporary work permits that any financial advantage that might be gained will be more than offset by the imposition of penalties.

The Fair Work Ombudsman has filed 126 litigations involving visa holder workers, and secured more than $13.4 million in court-ordered penalties, in the past five full financial years.

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance. An interpreter service is available on 13 14 50.

Small businesses can find targeted resources at the Small Business Showcase and information is available for employees and employers at our visa holders webpage.

The Fair Work Ombudsman has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders with work rights can ask for help without fears for their visa. Details are at our visa protection webpage.