Pulteney St restaurant fined for “deceptive” pay slip ploys
A Pulteney Street Chinese restaurant, and its director, have been fined for deliberately failing to issue pay slips to “vulnerable” employees.
Industrial Magistrate Stephen Lieschke issued the Dragon Tea House Chinese restaurant with a $5100 penalty for breaching the Fair Work Act, plus a $1360 penalty against its director, Xiao Xu Zhou.
Lieschke also found that Zhou had engaged in “deceptive conduct” throughout the Industrial Relations Court hearing, and tried to deceive workplace inspectors after they requested she produce an employee’s pay slip.
In mid-2014, fair work ombudsman inspectors asked Zhou for the most recent pay slip of Lu Peng, who had been sponsored on a 457-working visa to work as the restaurant’s manager.
The inspectors said that, during their visit to the restaurant, Zhou told them that the restaurant provided pay slips to each of its employees, but that her accountant held them.
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However, rather than providing a copy of any payslip already given to Peng, Zhou acquired a blank pay slip template from her accountant, filled it out in Peng’s name covering the previous four weeks and gave that to inspectors within 24 hours, Leischke’s judgement says.
A few days later, the judgement says, an inspector interviewed another Dragon Tea House employee, Xiao Li, who said she was paid each week, but not given pay slips.
Zhou was given an $850 fine by the inspectors for failing to issue pay slips.
However, she did not pay the fine – even after the 28-day payment period was extended by more than a month.
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During the resulting court proceedings, Zhou claimed that, during the restaurant’s initial inspection, she had not understood what pay slips were.
She also denied having claimed during the inspection that the restaurant issued pay slips to its employees.
Leischke rejected the claim that Zhou misunderstood inspectors’ request for a pay slip, noting that she had “an extensive history of being centrally involved in a range of companies and businesses”.
“I find Ms Zhou did not misunderstand the simple request being made of her, was then aware of payslips, and that she answered deceptively in order to satisfy the inspectors’ request,” the judgement says.
“I find she also attempted to mislead the inspectors by falsely providing payslips that were never provided to Mr Peng.
“I further find that Ms Zhou has maintained this deceptive conduct throughout these proceedings.”
Leischke also rejected Zhou’s submission that she was disadvantaged in finding out her obligations as an employer, as she has only lived in Australia as an adult for 18 years.
The magistrate noted that there were no allegations that the restaurant had underpaid its employees, and that the respondents had shown remorse for their actions, but said that “the employees were vulnerable foreign workers, who were in a poor position to check they were not being cheated out of their lawful minimum wages”.
“Provision of accurate pay slips is fundamental to employees understanding and checking their wages.
“The regular provision of accurate pay slips hinders an employer’s ability to maintain false records and to engage in underpaying employees.”
Leischke said it was important to provide a general deterrence against failing to provide pay slips to employees, because “this type of contravention is difficult to detect, especially with vulnerable workers, and is a fundamental breach of the National Employment Standards”.
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