FOODWORKS OWNER FINED $11,800 FOR SACKING NON-ASIAN WORKER

·         EWIN HANNAN

OCTOBER 15, 2019

 The Australian

A FOODWORKS SUPERMARKET OWNER HAS BEEN ORDERED TO PAY $11,800 COMPENSATION TO A 66-YEAR-OLD FEMALE WORKER HE SACKED BECAUSE HE PREFERRED TO HIRE EMPLOYEES FROM ASIAN-SPEAKING BACKGROUNDS.

AFTER BEING SLAMMED LAST MONTH BY FAIR WORK FOR HIS “DISGRACEFUL” SACKING BY TEXT OF GAIL AYTON, OWNER JIANBIN “EDDIE” WANG SAID HE WOULD BE FORCED TO CLOSE THE WAGGA WAGGA STORE IF ORDERED TO PAY MORE THAN $7000 COMPENSATION.

MR WANG ALSO CLAIMED HE HAD NOT INTENDED TO SACK MS AYTON, WHO HAD WORKED AT THE STORE FOR MORE THAN 20 YEARS, SAYING HIS ENGLISH CONTRIBUTED TO THE EVENTS THAT SAW HIM ADMONISHED BY COMMISSION DEPUTY PRESIDENT PETER SAMS.

BUT MR SAMS FOUND THE CLAIMS WERE LITTLE MORE THAN A “POST FABRICATED INVENTION” BY MR WANG WHEN HE REALISED HE FACED A SIGNIFICANT COMPENSATION ORDER.

MS AYTON HAD TOLD THE COMMISSION THAT MR WANG, WHO TOOK OVER THE STORE IN 2016, HAD BEEN “TRYING TO GET RID OF ME” BECAUSE SHE WAS NOT CHINESE.

DURING THE CASE, MR SAMS CONDUCTED AN INTERNET SEARCH AND FOUND “A NUMBER OF PAST JOB ADVERTISEMENTS BY MR WANG ON VARIOUS CHINESE AUSTRALIAN JOB FORUMS”. THESE POSTS LISTED THE JOB REQUIREMENTS, WITH ONE STATING “ASIAN LADY PREFERRED” WHILE ANOTHER SAID “ASIAN STAFF PREFERRED”. A THIRD POST SAID HE “MORE PREFER OVERSEA (SIC) PEOPLE”.

MR WANG SACKED MS AYTON VIA TEXT MESSAGE IN APRIL THIS YEAR, LATER CLAIMING IT WAS DUE TO HER ABSENCES FROM WORK AND ALLEGED MINOR CASH SHORTAGES RANGING FROM $5.10 TO $30 FROM THE CASH REGISTER.

BUT MR SAMS SAID MR WANG’S REASONS FOR SACKING MS AYTON WERE WEAK AND HE HAD WAITED FOR AN OPPORTUNITY TO JUSTIFY SACKING HER.

“IN MY VIEW, SUPPORTED BY THE JOB ADVERTISEMENTS POSTED BY MR WANG, THE RESPONDENT’S REAL MOTIVE FOR DISMISSING HER WAS MR WANG’S PREFERENCE TO HIRE STAFF OF ASIAN-SPEAKING BACKGROUNDS,’’ HE SAID.

FOLLOWING THE DECISION, LAWYERS FOR MR WANG TOLD THE COMMISSION THAT SHOULD HE BE ORDERED TO PAY MORE THAN $7,000, “THIS WOULD MOST CERTAINLY CAUSE THE RESPONDENT’S BUSINESS TO CLOSE DOWN AS A CONSEQUENCE OF FINANCIAL HARDSHIP”.

HE SAID THE MAXIMUM PAYOUT TO MS AYTON, WHO NOW WORKS AS A CASUAL CLEANER AT CHARLES STURT UNIVERSITY, SHOULD BE $2806.

BUT MR SAMS SAID NO FINANCIAL RECORDS WERE PRODUCED BY MR WANG TO SUBSTANTIATE HIS CLAIM THAT HE WOULD BE FORCED TO CLOSE IF THE COMPENSATION EXCEEDED $7000.

HE SAID MR WANG PLEADED IGNORANCE TO THE COMMISSION’S PROCESSES DUE TO HIS POOR COMMAND OF ENGLISH, AND CLAIMED THE TEXT MESSAGE TO MS AYTON WAS ONLY ABOUT HER NEXT SHIFT AND DID NOT MEAN DISMISSAL.

“THIS WAS A SIGNIFICANT ERROR OF FACT FOR WHICH AN APPEAL MAY BE LODGED,’’ HE SAID. “PUTTING ASIDE THAT ALL OF THIS COULD HAVE BEEN EXPLAINED EARLIER, I AM OF THE VIEW THAT THIS IS LITTLE MORE THAN A POST FABRICATED INVENTION WHEN (MR WANG) FINALLY REALISED HE WAS AT SIGNIFICANT RISK OF FORMAL ORDERS BEING MADE AGAINST HIM.”

FINDING MS AYTON HAD BEEN SUBJECT TO “APPALLING TREATMENT”. MR SAMS SAID SHE WAS TO BE CONGRATULATED ON SECURING A NEW JOB A MONTH AFTER HER DISMISSAL GIVEN HER AGE AND THE FACT SHE LIVED IN A REGIONAL AREA. BASED ON THE $20,155 SHE WOULD HAVE EARNED FOR WORKING ANOTHER SIX MONTHS AT THE FOODWORKS STORE, AND THE $8,352 EARNED FROM THE UNIVERSITY, MS WANG WAS AWARDED $11,803 IN COMPENSATION