Employer wrongfully terminates visa holder for breaching visa conditions

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The Fair Work Commission has found that an employee who was suspended indefinitely without pay after her employer decided that she had breached the conditions of her visa was unfairly dismissed.

What happened in this case?

The employee, Ms Devi was employed as a part-time food services assistant in an aged care facility run by her employer, Doutta Galla Aged Services Limited. Ms Devi was in Australia on a student visa and studying to become a nurse. According to the conditions of her student visa, Ms Devi was prohibited from working more than 40 hours a fortnight, except during semester breaks.

Her employer had policies and procedures in place to manage the work hours of employees who were subject to the 40 hour work restriction. Also, the company had a special employment contract with Ms Devi called “Visa Restricted-Student Contract of Employment for Part Time Employment”, which provides that she “shall not work in excess of 20 hours per week“, that she “will not accept and/or request more than 20 hours per week” and that she must “immediately inform the Employer if [she] had been asked to work in excess of 20 hours per week“.

The Employer’s Human Resources department issued Ms Devi a show cause letter, alleging that she had worked 1.91 hours in excess of her rostered shift on 2 November 2018, meaning she had worked more than 40 hours in that fortnight. Ms Devi was suspended from work without pay.

The employer did not accept Ms Devi’s explanation that she had likely forgotten to clock out on time because she was talking with colleagues or waiting with a patient for an ambulance. Instead, the Employer claimed that Ms Devi had breached her student visa and contract of employment and was not permitted to attend work. The employer claimed that Ms Devi’s breach of her visa conditions rendered her visa invalid. The employer also claimed that MS Devi had no right to work until such time as the Department of Immigration and Border Protection provided written confirmation of her right to work.

Ms Devi gave evidence that she had contacted the Department of Immigration and Border Protection (DIBP) and explained her circumstances. The DIBP advised her that her visa was still valid. She said that was told that in order for her visa to be cancelled, the DIBP would need to make a decision after conducting an investigation to establish that there was a pattern of knowing and deceitful intent to breach her visa. She said she was also told that the DIBP would not issue any written confirmation that she was not in breach of her visa as that was not its role. Ms Devi relayed all of this to her employer.

However, the employer insisted that it would not allow Ms Devi to return to work without written confirmation from the DIBP as, her employer claimed, she was an “illegal worker“. As the employer continued to refuse to allow her to return to work, Ms Devi concluded that her employment had been terminated and brought an unfair dismissal claim.

The employer maintained that she had breached her legal and contractual obligations to not work more than 40 hours each fortnight and that she had not been dismissed.

The issue was whether the employer’s actions in respect of suspending a worker for working in beach of her visa conditions went beyond what is lawful conduct under Australian immigration and workplace laws.

The Fair Work Commission’s Decision

In Devi v Doutta Galla Aged Services Limited [2018] FWC 4142 the Fair Work Commission considered whether Ms Devi was unlawfully dismissed. It was found that employer had breached the contract of employment by suspending Ms Devi without pay. It found the employer had no lawful right to do so.

The Commission accepted Ms Devi’s explanation that she simply forgot to clock off at her registered finish time. The Commissioner noted that “this is hardly the stuff of a serious and deliberate breach of a Visa condition or the contract of employment. It is respectfully, a trifling matter.

The employer’s conclusion that Ms Devi was “an illegal worker” was also plainly wrong. Just because Ms Devi unintentionally breached the conditions of her visa on one occasion, did not mean that her visa was automatically cancelled. Under the Migration Act, the Minister for Immigration may, but is not obliged, to cancel the visa of a person who has breached their visa conditions. Prior to cancellation of a visa, a visa holder is afforded natural justice to respond to allegations of a breach and provide reasons why the visa should not be cancelled. It is not the case that a visa is automatically cancelled for a breach.

It was also relevant that the Employer was not at risk of breaching the Migration Act 1958 (Cth) for allowing Ms Devi to work the additional hours, as it did not know or authorise Ms Devi to work the extra hours in breach of her visa conditions. The employer had taken reasonable steps to ensure that it did not allow student visa holders to work excessive hours in breach of their visa conditions, including having terms in its employment contract, policies and procedures, and a rostering system which identified excess hours worked.

Ms Devi was at all times at lawful non-citizen and held a valid visa with permission to work. The employer’s belief otherwise was not legally or factually correct and was not objectively reasonable. The Commission also found it unreasonable of the employer to require Ms Devi to obtain written confirmation of her right to work from the DIBP as a condition for re-instating her work.

Considering all the circumstances of the case, the Commissioner found the dismissal was harsh, unjust and unreasonable. The Commissioner reserved its decision in relation to remedies available.

Lessons from this case

Employers must ensure they have a proper legal and factual basis for their position before taking a stance prejudicial towards  their foreign employees.

In this case, it would have been appropriate for the employer to contact the DIBP to clarify their understanding of the employee’s immigration status or sought independent legal advice before standing down the employee.

This case also highlights that employers have a positive obligation to validate an employee’s work rights on a regular basis but that an employer who takes reasonable steps to ensure its employees do not work in breach of their visa would not be held liable under the Migration Act. Employers who find an employee has been working in breach of visa conditions should seek advice before terminating the employment contract to avoid a legal claim for repudiation and unfair dismissal.

If you need advice regarding the immigration status of your employees, please contact us on info@themigrationagency.com.au or 8896 6056.

Further reading

https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc4142.htm

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