The owner posted job ads saying, ‘Asian lady preferred.’
The owner posted job ads saying, ‘Asian lady preferred.’

‘Asian lady preferred’: Store slammed for ‘disgraceful’ act

A 66-year-old supermarket employee was sacked by text message because the owner preferred "Asian" staff in a "disgraceful and grossly unfair" case the Fair Work Commission says likely breached anti-discrimination laws.

Jianbin "Eddie" Wang abruptly dismissed shop assistant Gail Maree Ayton from Foodworks Ashmont in Wagga Wagga, where she had worked for more than 20 years under previous owners.

"Hi Gail. This is Eddie, I decide (sic) to give job (sic) to someone else but I will let u know if I need to to (sic) work, sorry for that," he wrote in a text message on the evening of April 3.

Ms Ayton lodged an unfair dismissal claim with the Fair Work Commission later that month. In his response, Mr Wang alleged Ms Ayton was sacked for misconduct by way of "money shortages" and "absences" from work.

He provided seven cash register receipts dated between December 2018 and April 2019 alleging amounts missing between $5.10 and $30.70, saying the shortages "happened very often" while she was working.

Mr Wang also alleged that on the morning she was sacked, Ms Ayton told store manager Ivy Zhong that she had had "enough of the shop" and stated "enough, enough, enough". Later that afternoon she sent an SMS saying, "I do apologise for letting you down today am I working tomorrow xx"

In his response, Mr Wang told the Commission, "Gail's no reason absent (sic) made me make a decision to give her position to someone else at once, which can make sure the shop can be (sic) running."

Ms Ayton told the Commission there had never been any disciplinary action taken against her and she was never warned of any misconduct. "I am still not aware as to why I was terminated and why someone else was hired in my position which is unjust," she said.

She also provided a letter of reference sent to her by Ms Zhong after her dismissal that described her as "extremely organised, reliable and working hard", saying she would "be an asset to your company and has my highest recommendation".

Foodworks in Wagga Wagga. Picture: Google Maps
Foodworks in Wagga Wagga. Picture: Google Maps


Ms Ayton alleged that Mr Wang "has been trying to get rid of me (I'm not Chinese)". Fair Work deputy president Peter Sams said that due to the "general lack of evidence from either party" about the reasons for the dismissal, he conducted his own inquiry.

Mr Sams located a number of past job ads by Mr Wang on various Chinese Australian job forums with phrases including "Asian lady preferred", "Asian staff preferred" and "more prefer (sic) oversea (sic) people".

"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.

"I am bound to observe that, prima facie, Mr Wang's conduct constituted a breach of anti-discrimination laws and/or the applicant's dismissal was for an unlawful reason. In either case, Mr Wang may find himself subject to other civil proceedings, for which civil penalties might apply."

He added, "It must be bluntly said that no employer with any sense of common decency would have effected a dismissal in the hopelessly unfair and perfunctory manner admitted to in this case. It was disgraceful and grossly unfair."

Mr Sams rejected each of Mr Wang's assertions, including the "absurd" claim that Ms Ayton's comments that she had had "enough" indicated an intention to resign.

He said there was "no evidence" Mr Wang had complied with the Small Business Fair Dismissal Code and "even if I accept" he was concerned about one day of non-attendance and a number of minor cash shortages, "in no way could such behaviour be reasonably considered to have constituted serious misconduct".

He added, "Further, there is not a jot of evidence that he had ever raised these concerns with the applicant before April 3, 2019 … of any investigation having been conducted into the alleged misconduct of the applicant … or that he had told her that her job was at risk for these, or any other reasons."

Mr Sams said he was satisfied Ms Ayton's dismissal was harsh, unjust and unreasonable. He invited both parties to make submissions by next month about appropriate compensation.

"As the evidence has disclosed potential breaches of anti-discrimination and industrial relations legislation, I am referring this decision and the file to the General Manager of the Commission for consideration as to whether this matter should be referred to relevant agencies to investigate potential breaches of State or Commonwealth law," he said.

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