457-visa dismissals could be deemed harsh by FWA
Summary dismissal of a 457-visa holder could be deemed harsh by Fair Work Australia - even if the reason for dismissal is valid - if it forces the worker to leave the country under difficult circumstances, warns specialist corporate immigration lawyer Katie Malyon.
A number of recent FWA decisions confirm that even where there are valid reasons for termination, 457 visa holders may be able to access remedies under the Fair Work Act because having to leave the country within 28 days (in accordance with conditions contained in their visa) is considered harsh, says Malyon, principal of Katie Malyon and Associates.
In 2011, two rulings - Webster v Mercury Colleges and Paternella v Electroboard Solutions were of particular significance, she says.
Webster v Mercury Colleges involved the termination of a British foreign language teacher whose 457 visa was sponsored by his employer.
In explaining the Australian vernacular, the teacher used the f-word, Malyon says.
"His conduct was such that Mercury Colleges decided to terminate his employment summarily."
The worker lodged an unfair dismissal claim and was successful.
The problem arose because it was a summary dismissal, which left the worker with just 28 days to either find a sponsor or leave the country, she explains.
Senior Deputy President Lea Drake held that the termination was harsh because of the serious financial consequences and social dislocation which were inevitable on a summary termination.
Similarly, in Paternella v Electroboard Solutions, Commissioner Ingrid Asbury held that the worker's conduct warranted dismissal.
However, because the case involved a summary dismissal, he wasn't given warning that his employment was in jeopardy.
"[This] limited the opportunity to mitigate the loss of his job, and consequently then his right to remain in Australia," Malyon says.
"The clear message coming out of these cases is that courts are now more willing to make a finding of unfair dismissal against an employer triggered by an employee's forced departure from Australia despite the fact that the termination was valid."
Given that one about one in 10 workers in Australia are here on a temporary visa, the message is an important one.
"It means employers need to be conscious of the resident status of their employees," Malyon says, noting that even permanent residents can lose their resident status in certain circumstances.
FWA might also make allowances for unfair dismissal claims that fall outside the 14-day lodgement period, she adds.
In another case just before Christmas Usman Ali v Industries Services Training Pty Ltd, a 457-visa holder was one day late in lodging his unfair dismissal application.
FWA Vice President Michael Lawler noted that the worker's dismissal could have a significantly greater adverse impact than that of a citizen or a permanent resident (in this case the worker was so upset by the dismissal that he sought psychiatric treatment) and found the exceptional circumstances accounted for the delay, in granting him an extension.
Procedural fairness a mustAccording to Malyon, the first thing employers need to do when dismissing 457 workers is ensure procedural fairness.
"Give appropriate notice. If [you] don't want the 457-visa holder to be on [your] premises, consider garden leave. This at least allows them the opportunity to research other visa options to remain in Australia and explore employment opportunities," she says.
Facilitating a conference with an immigration specialist to help the expatriate review their visa options to remain in Australia, or if necessary leave with a view to returning, is also worth considering.
The majority of people in Australia on 457 visas do want to remain here, Malyon says, noting that Australia is the number one destination choice of migrants around the world, relative to its population.
"Companies also need to be aware of their obligations as a sponsor, because the business needs to notify the Department of Immigration the employment has been terminated. That notice needs to be given within 10 working days," she says.
"[And] there's a suite of clauses that employers should consider adding to their standard contracts of employment for expatriates, to assist them to manage their sponsorship obligations and give some certainty around the processes [relating to] having an expatriate on the payroll as distinct from an Australian citizen or permanent resident."
Contracts should also be subject to immigration approval of the visa. Employers might even want to include provisions to guard against things like the break up of a marriage, so they don't continue to be liable for obligations regarding a worker's partner if the partner goes home.
Questions such as who initiates requests for payment of airfares if the worker must return home, whether the airfare is first class or economy, and whether it covers goods and chattels, should also be addressed.
"The sponsor has an obligation to pay return airfares, but that obligation will only arise if the person hasn't otherwise regulated their visa status and taken permanent residence," Malyon says.