Employers are obligated to comply with the Fair Work Act 2009 (Cth) (FW Act) when employing employees in Australia – including providing the minimum terms and conditions of employment as prescribed by the FW Act and an applicable modern award (if any) or enterprise agreement.
Employees who are employed on working visas (for example subclass 457 or 417 visas) are able to make applications for unfair dismissal and have their case heard by the Fair Work Commission (FWC). An employer who fails to afford procedural fairness to a working visa employee can still find themselves in trouble in the FWC as demonstrated in GS v Dairy Kosher Catering Pty Ltd T/A Milk n Honey [2016] FWC 5284.
The Employee was sponsored by the Employer on a subclass 457 visa and worked as a cook from 11 March 2014. In March 2016, the Employee was advised by the Employer that the business had been sold and that the new owners would not be able to sponsor him. The Employee was told that he had to finish up from the business and to contact the Employer’s accountant regarding his unpaid entitlements and wages. The Employee lodged an unfair dismissal application the day after the termination of his employment.
Commissioner Cirkovic firstly held that the Employee had access to the unfair dismissal jurisdiction and went on to determine whether the termination of employment was “harsh, unjust or unreasonable”. Commissioner Cirkovic held that there was not a valid reason for the termination of employment and further the Employee was not notified of the reason for the termination nor was he given an opportunity to respond.
Importantly, she had regard to the Employee’s visa status noting that this made the termination of employment and the visa sponsorship withdrawal “particularly harsh”. Commissioner Cirkovic noted that the Employee was one week away from eligibility to apply for permanent residency, did not have access to social security payments (such as Centrelink) and could be deported if he didn’t find another employer to sponsor him.
For these reasons, Commissioner Cirkovic was satisfied that the termination of the Employee’s employment was unfair and that an order for monetary compensation should be made. In this regard, Commissioner Cirkovic held that given that the Employee’s sponsorship ended on 11 March 2018, he would have been employed until then. It was considered that it was unlikely that the sale of the business would have affected his employment as the business would have required the Employee’s skills.
Given that the Employee would have received total of $111,480.77 for his employment until 11 March 2018, Commissioner Cirkovic made orders for the Employer to pay the Employee the statutory maximum compensation (26 weeks pay) of $27,500.00.
This case demonstrates the potential risks to employers who may assume that the visa status of employees does not mean that compliance with Australian’s industrial legislation is necessary. Employers are reminded that as a matter of best practice, procedural fairness should be afforded to all employees when consideration is being given to termination of employment – regardless of their residency status.
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