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A cook worked for more than two years at an Adelaide Indian restaurant without pay after the two owners threatened her with deportation if she reported the issue, a tribunal has heard.
Key points:
- Pawanjeet Heir started working at Darshana's Curry and Tea House in May 2013
- She was unpaid apart from four weeks of working there
- She was not allowed sick leave when her appendix burst and then her visa was cancelled
Pawanjeet Heir received no wages, no overtime, no annual leave and no superannuation apart from the first four weeks of her time working at the restaurant in Mawson Lakes between 2013 and 2015.
In total, her lawyer estimated she was underpaid by almost $200,000.
Ms Heir immigrated to Australia in 2008 as a student and studied cooking and hospitality management.
Once she had finished, she and her husband searched for a sponsored cook's position so she could stay in Australia on a 457 temporary skilled working visa.
Kiranbahai Patel offered her a position as a cook at the Darshana's Curry and Tea House restaurant in May 2013, and she agreed, moving her family from Melbourne to Adelaide.
She worked for a month without pay while training but then was paid for four weeks in June and July 2013.
Worry about visa being cancelled
The South Australian Employment Tribunal heard that Ms Heir's pay stopped afterwards, and when she and her husband asked about the missing money, Mr Patel told her she had to pay him $30,000 for fees needed by the Department of Immigration and the Australian Taxation Office or he would get her visa cancelled.
Tribunal deputy president Stephen Lieschke said there was not enough evidence to prove the payment, but he agreed that Ms Heir had been threatened with deportation if she did not agree to not argue about her pay.
As well as not paying her wages, Mr Patel also refused Ms Heir's requests for sick leave and carers' leave, and she was even told to come to work when her appendix burst in August 2015.
She refused and instead had surgery, but found out while recovering that her visa had been cancelled after the Department of Immigration audited the business that owned the restaurant — Fusion India Pty Ltd.
It later barred Fusion India from sponsoring any more visa holders.
Ms Heir did not receive any payment for eight weeks of annual leave she had not taken.
She later found out none of her superannuation had been paid.
Issues around documents
Mr Patel did not give any evidence or call any witnesses, instead saying Ms Heir was not credible or reliable and that she could not prove any of the allegations.
He claimed Ms Heir was paid in cash, but Mr Lieschke dismissed documents presented to prove this due to several reasons, including that they said Ms Heir was paid $828.62 one week despite two-cent coins not having been used for a long time.
The tribunal also heard that Mr Patel would pay wages into Ms Heir's bank account, her husband would withdraw it from an ATM, and she would then hand the money back to Mr Patel to create a paper trail showing he was paying her the correct amount.
Mr Patel's nephew, Radhaben "Ravi" Patel was also found by the tribunal to have breached the Fair Work Act by not allowing Ms Heir the correct breaks.
Ms Heir's lawyer, Simon Bourne, said the case was unusual in that the directors of the company were able to be pursued despite Fusion India Pty Ltd going into liquidation in 2016.
"It shows that it's not always a get-out-of-jail-free card, if I can put it that way, for directors or secretaries or business owners to wind up the company that employed their employee in order to get out of paying or meeting their obligations to their employees," he said.
Another hearing will be held to work out the penalties the Patels will have to pay.
Ms Heir will have to take separate civil court action to reclaim her unpaid wages and superannuation.
Darshana's Curry and Tea House closed in 2018 while under separate management.
A lawyer for the Patels declined to comment.