Author: Athena Koelmeyer, Workplace Law
FWC finds visa worker not dismissed for prohibited reason
Tiwari v Seljo (NT) Pty Ltd t/a Saffron Indian Restaurant  FWC 1833
An employer successfully rebutted a claim by a former employee on a temporary work (skilled) visa (457 visa) that he was dismissed following the denial of his permanent residency application and his request that he only work his contracted hours and duties.
The employee had been employed as a Bar Supervisor from March 2015 to June 2018 when his employment was terminated. The employee had been employed subject to a 457 visa and was seeking permanent residency.
In or about March 2018, the employee was advised that he had not been successful in his application for permanent residency. Shortly thereafter, the employee sent a text message to his employer requesting that he not be required to perform work that was beyond his job description and that he not be required to work beyond his contracted hours.
The employer claimed that following the denial of his application for permanent residency, the employee’s attitude and performance at work significantly deteriorated. The employee was issued warnings in March and May 2018 before his employment was terminated in June 2018.
The employee commenced adverse action proceedings in the Fair Work Commission (FWC). He claimed that the employer had made false representations to him that it could sponsor his application even though it knew that it could not do so, and that the reason for his dismissal was that he had exercised a workplace right to make complaints about his employment.
In the proceedings, the employer adduced evidence that it had initially thought it would be able to provide a pathway to permanent residency through a Governmental agreement. However, it was subsequently advised that the pathway was not likely to be provided.
The FWC was satisfied that the employee’s text message amounted to a complaint in relation to his employment. In assessing the evidence, the FWC noted that the first warning had been issued three days after the employee had made the complaint. It therefore was of the view that the performance issues raised by the employer were at least in part in response to the complaint.
The FWC went on to note that there were no further performance issues raised until some eight weeks later. In the meantime, the employee’s application for permanent residency had been rejected. The FWC therefore accepted that the employee’s performance had deteriorated from this point onwards. It commented that this was not surprising in circumstances where the employee would have been shocked at the rejection after having spent three years in this employment (and a total of $9000) on the understanding that he would be granted permanent residency.
The FWC was satisfied that the decline in the employee’s performance occurred because of the employee’s disappointment and anger at the failure of the sponsorship of his permanent residency. It further concluded that the employer had made it decision to terminate the employee’s employment based on this decline in performance and that the employee’s complaint was not the reason (or part of the reason) for the employee’s dismissal.
The employee’s general protections application was therefore dismissed.
What can your business learn from this decision?
In coming to this decision, the FWC acknowledged the complexities of this particular matter. It sought to clarify at the outset that permanent residency was not a workplace right protected by the general protections jurisdiction in the Fair Work Act 2009.
This decision nonetheless serves as a reminder to employers to ensure that they are aware of their rights and obligations in relation to visas and sponsorship matters, and that these are properly communicated to employees.
It is also a good reminder to employers that proper communication and record-keeping of the reasons for disciplinary action, including reasons for the termination of employment will reduce the risk of miscommunication between employers and employees, and will serve to assist the FWC and the courts if required to determine any disputes or claims of adverse action.
Thanks to Athena Koelmeyer, Managing Partner at Workplace Law for permission to reproduce this article