The recent Fair Work Commission decision Sebastien Mezino v Baia the Italian Pty Ltd , where a French restaurant worker was awarded compensation after being unfairly dismissed for raising underpayment concerns, serves as a reminder of the importance of employers being aware and complying with industry awards.
The Case
In essence:
- Mr Mezino, a French national, was employed as a floor supervisor at an Italian restaurant in Darling Harbour from November 2015 until his dismissal in April 2017
- He was initially paid $20 per hour. However, after 3 weeks Mr Mezino raised concerns about his pay rate with the restaurant manager, Mr Stauder. He was informed that it was too early to discuss pay changes, and was assured there were opportunities for visa sponsorship
- By June 2016, his pay rate hadn’t changed, despite being rostered as a manager, and undertaking various managerial and recruitment responsibilities. However, he was offered the opportunity for sponsorship by the manger
- In November 2017, Mr Mezino again questioned his pay rate, yet was assured that his pay would increase once sponsorship was approved
- After suffering a work-related injury and inquiring about sick leave in March 2017, Mezino was told he couldn’t accumulate leave until his sponsorship was approved
- After an 11 day absence, Mr Mezino met with Mr Stauder to advise him he was ready for work and presented him with research he had undertaken on his award rate. Stauder stated that restaurant owner would likely respond to Mezino’s research by cancelling Mezino’s visa application and firing him. Stauder also claimed that the company wasn’t covered by Fair Work
- On the same day, Mezino sent correspondence to Stauder seeking a back payment of wages totally $25,124
- On 20 April, Mr Mezino was removed from the work Facebook group with a post appearing that announced he had resigned. His name then disappeared from the roster and he received a letter from Solicitors stating they were no longer acting in the matter of his 457 visa. He never received a termination notice.
The Decision
The Fair Work Commission:
- held the dismissal was harsh, unjust and unreasonable
- labelled the actions of the employer in utilising its 457 visa-related leverage to underpay an employee and dismissing an employee when they sought to assert their lawful entitlements as behaviour of the “shabbiest type”
- awarded Mr Mezino $15,000 in compensation
The decision is available for you to read through the following hyperlink:
Sebastien Mezino v Baia the Italian Pty Ltd T/A Baia THE ITALIAN [2017] FWC 3692 (14th July 2017)
Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- review this Fair Work Commission decision
- seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
- understand what employment laws apply at your workplace including Awards and enterprise agreements
- ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
- raise any employment law questions with an employment lawyer
- damages can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.
