Darling Harbour restaurant ordered to pay $15,000 for unfair dismissal

Jul 19th, 2017

The Fair Work Commission heard the French national Sebastien Mezino was told the restaurant in Cockle Bay was willing to offer visa sponsorship to dedicated employees.

Mr Mezino, who was employed with Baia from November 2015 until April 2017, told the Commission he sometimes worked more than 50 hours a week but was happy to do so because he wanted to prove to the company he was "worth their investment". He said the restaurant manager told him that depending on his performance he could expect a promotion to a manager's position with an offer of visa sponsorship.

In January 2016, Mr Mezino said he was put in charge of recruitment and felt he was on track to becoming a manager.

By the end of April he said he was working as a manager but was surprised his promotion did not come with a pay rise. He said he was paid $20 per hour without allowances including overtime and penalty rates.

By June, he said he was performing a wide range of management and recruitment-related duties and the "sponsorship opportunity" was mentioned.

While his pay rate had not changed, "it was a dream come true to be offered the opportunity to stay four years in Australia".

In November, Mr Mezino said he signed an "offer letter" for sponsorship under a 457 visa, but was told his pay would not increase until the sponsorship was approved.

The Commission heard he started to "feel underpaid" because of his previous efforts and new responsibilities.

When he looked up the industry award in March this year it appeared to him he had been allegedly underpaid since the beginning of his employment.

Mr Mezino said he met with his manager in April and mentioned his "feeling of being underpaid".

'I am satisfied the dismissal was harsh, and unjust, and unreasonable'. Commissioner Donna McKenna

Mr Mezino said his manager said he would pass on the information to the restaurant owner who would "cancel my visa application and fire me".
The Commission heard when Mr Mezino mentioned he had contacted the Fair Work Ombudsman, his manager told him to "go ahead" because "this company has never been caught by Fair Work".

On April 19, Mr Mezino made a claim to the restaurant for the alleged underpayment of $25,124.40 in wages.

He said his name "disappeared from the roster" after Sunday April 24.

The Fair Work Commission said Mr Mezino's manager refused to engage with it saying he was not involved with the company and had no authority over it.

Commissioner McKenna said she was satisfied Mr Mezino, who has left Australia, was unfairly dismissed and ordered he be paid $15,000 in compensation.

"I am satisfied the dismissal was harsh, and unjust, and unreasonable," Commissioner McKenna said.

"I would add it was also behaviour of the shabbiest type for this employer to use its s.457 visa-related leverage concerning potential work-related sponsorship in the course of underpaying an employee – and then to peremptorily dismiss the employee when he sought to assert entitlement to proper pay and conditions under the relevant award and the National Employment Standards, and/or in accordance with the salary recorded in the signed documentation concerning the visa "offer letter"."

SMH Anna Patty July 19,2017

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