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Recruitment ads may result in legal action against employer

The Fair Work Commission (FWC) has referred an unfair dismissal case to other “relevant agencies” to investigate possible breaches of anti-discrimination laws, after it found the sacking was likely to be racially motivated.

Jianbin ‘Eddie’ Wang, the current owner of Foodworks Ashmont in Wagga Wagga, summarily dismissed a long-serving shop assistant by text message when she missed one shift.

The 66-year-old casual employee, who had worked at the same store for more than 20 years under various owners, had worked for Mr Wang on a regular basis for three years.

Mr Wang’s text message read:

“This is eddie, I decide [sic] to give job [sic] to someone else but I will let u [sic] know if I need you to [sic] work, sorry for that”

He did not return the employee’s call when she attempted to call him back.

The employee then lodged an unfair dismissal claim.

The employee stated “He [Mr Wang] has been trying to get rid of me (I’m not [Chinese]),” the employee submitted to the FWC.

Asian staff preferred

FWC found a number of job advertisements Mr Wang had previously posted on different Chinese Australian job forums.

These included:

“IGA supermarket in Wagga Wagga need new staff, must be reliable, speak English, work long term, daily jobs including deli meat, check out and organizing self. Asian Lady preferred...” [emphasis added]

“wagga supermarket looking for new staff, daily work including deli meat and check out, no experience required but must speak English well and reliable, please contact [Mr Wang’s mobile number provided], asian staff preferred. [emphasis added]

“wagga IGA supermarket need new staff to join:

Requirements:

good English speaking, reliable, no experience required, must have PR, please contact [Mr Wang’s mobile number provided] (eddie) if you are interested in, more prefer oversea [sic] people.” [emphasis added]

‘Complete disregard’ for natural justice

FWC found no evidence that Mr Wang had complied with the Small Business Fair Dismissal Code & stated “These are all fundamental and serious breaches of the Code. In my view … Mr Wang ‘waited’ for an opportunity which he believed would ‘justify’ terminating the employment of [the employee]. He was mistaken. [Mr Wang’s] complete disregard in affording [the employee] any natural justice when dismissing her, was astounding for its brazen and appallingly perfunctory unfairness. It was disgraceful and grossly unfair.

FWC found the employee’s dismissal harsh, unjust and unreasonable and directed both parties to make submissions about compensation.

FWC believed Mr Wang’s real motive for dismissing the employee was his preference to hire Asian-speaking staff. “I am bound to observe that, prima facie, Mr Wang’s conduct constituted a breach of anti-discrimination laws and/or [the employee’s] dismissal was for an unlawful reason, pursuant to s 772(f) of the Act,” he said.

 

 

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