The owner of a defunct Canberra restaurant has been ordered to pay a cook nearly $18,000 after a tribunal found she made her take part in a dodgy "cash back" scheme.
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Ninumol Abraham sued the owner of Binny's Kathitto at the ACT Civil and Administrative Tribunal (ACAT) earlier this year. The tribunal's recent ruling, primarily in her favour, comes some nine months after the cook's allegations of mistreatment first surfaced in The Canberra Times.
An ACAT judgment said Ms Abraham, who is originally from India, worked at the once popular Braddon restaurant from May 2018 until she was fired in January 2019.
During Ms Abraham's stint as a cook there, she claimed to have regularly worked up to 70 hours a week - well beyond her contracted 38 hours. She was also required to pay the restaurant's owner, Rose Mary Thomas, $511.40 a fortnight under the guise of it being "for tax".
Ms Abraham said Ms Thomas' husband Binny Babu, who helped run the Lonsdale Street restaurant, would often threaten to cancel her 457 visa and "send her back to India" along with her family.
Ms Thomas was the sponsor for Ms Abraham's visa.
The cook told the tribunal she was required to pay Mr Babu $100 for each day of leave she took, including sick leave, and was ultimately fired because of a disability.
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Ms Thomas disputed the cook's claims, telling the tribunal: "We felt exhausted in training a person who showed no interest in working and improving.
"On different occasions we wanted to terminate [the] applicant's employment but we considered allowing [her] more time to improve; moreover we had concerns that her visa would be cancelled if her employment was terminated and our decision would also affect [the] applicant's whole family."
Ms Thomas said Ms Abraham exaggerated her cooking skills when she applied for the job, and she fired her for legitimate reasons including her underperformance.
Senior ACAT member Dominic Mulligan said while there may have been some truth to the restaurant owner's claims, she still discriminated against Ms Abraham because of her immigration status.
He found Ms Abraham to be "honest, reliable and consistent" about being made to take part in a cash back scheme and work more hours than she was contracted to do.
Meantime, Mr Mulligan was "not favourably impressed" by Ms Thomas and Mr Babu's evidence on this.
Mr Mulligan found the restaurant owner's discrimination against Ms Abraham manifested in the extra work and cash back scheme, and ordered that she pay the cook $17,940.
The money accounted for an extra five hours' pay for each week Ms Abraham worked, because she didn't keep a log to prove she worked up to 70 hours, and for all of the $511 payments.
It also accounted for four weeks' pay, to make up for the fact Ms Abraham didn't get four weeks' notice before she was fired.
Mr Mulligan dismissed Ms Abraham's application she was discriminated against because of a disability, and ordered that Ms Thomas "not repeat the unfavourable treatment" in relation to any future employees.
Another former Binny's employee, Shojin Thomas, told The Canberra Times in September last year she was also made to take part in the cash back scheme and fork out money to take leave from the restaurant.
Those allegations were not the subject of the ACAT proceedings, but Ms Shojin Thomas did corroborate some of Ms Abraham's evidence.
Cassandra Morgan
It has never been more important for Canberrans to be able to access reliable and accurate information about health. As The Canberra Times’ health reporter, I am committed to ensuring our readers have access to this. I, like many in the territory, have family members who work in the sector. Although providing comprehensive coverage on the coronavirus pandemic is obviously my number one priority, I aim to frequently shed light on the fantastic work our frontline professionals do, as well as the challenges they face. Email me tips and story ideas at: c.morgan@canberratimes.com.au.
It has never been more important for Canberrans to be able to access reliable and accurate information about health. As The Canberra Times’ health reporter, I am committed to ensuring our readers have access to this. I, like many in the territory, have family members who work in the sector. Although providing comprehensive coverage on the coronavirus pandemic is obviously my number one priority, I aim to frequently shed light on the fantastic work our frontline professionals do, as well as the challenges they face. Email me tips and story ideas at: c.morgan@canberratimes.com.au.
