Australia's traditional reliance on migrant workers is expanding dramatically, with the government touting migrant labour as the saving grace of the skills shortage.

In an effort to increase sponsored workers, the government has announced

  • Increased funding to send more workers to regional parts of Australia
  • New Enterprise Migration Agreements to speed up employers' access to temporary migrants
  • An additional $10m for the sponsored workers program.

The Visa

The 457 Visa, available under the Migration Act 1958 (Cth), is the instrument by which migrant workers are sponsored to work for Australian employers.

One requirement of these Visas is that employees who depart from sponsored employment, must leave the country within 28 days.

Unfortunately, a spate of recent decisions suggest that employers who dismiss these employees – for a valid reason – may be subject to unfair dismissal claims because the employees' consequential departure from the country is 'harsh'.

The decisions

In Webster v Mercury Colleges Pty Limited [2011] FWA 1807, Fair Work Australia held that the termination of a British teacher, sponsored under the 457 visa program, was unfair. The dismissal followed a lesson for adult international students, during which Mr Webster used the 'f word'.

Senior Deputy President Blake held that the termination was harsh 'because of the serious financial consequences to Mr Webster and the social dislocation which was clearly inevitable on summary termination of his employment.'

In Mr Richard Paternella v Electroboard Solutions Pty Limited [2011] FWA 3323 the tribunal held that '[i]n all of the circumstances outlined above, it was open to Electroboard to form the view that Mr Paternella's employment was not working out and that he should be dismissed.'

Nevertheless, Commissioner Asbury held that the 'dismissal was harsh because Mr Paternella was not given any warning that his employment was in jeopardy, limiting his opportunity to mitigate the loss of his job, and consequently his right to remain in Australia.'

The decisions in these cases suggest that, as a result of the employee's forced departure from Australia, a court may be more willing to make a finding of unfair dismissal against the employer. This is despite the fact that the reason for termination was held to be valid.

Implications for employers

These cases are illustrative of the caution employers must take when considering the termination of a worker employed by way of the 457 Visa.

Issues of language, literacy and training can affect how foreign employees work, follow instructions and interact with others. These issues, should they arise, present a clear problem for employers seeking to terminate the employment relationship.

Prospective employers under this regime should:

  • Be accurately aware of their responsibilities as sponsors
  • Familiarise themselves with the laws regarding employment of foreign workers
  • Take extensive care when making decisions regarding sponsorship
  • Be fastidious in ensuring procedural fairness and appropriate notice when terminating sponsored employees.

For further information, please contact: Scott Puxty, Partner
T: +61 2 4911 5410
E: spuxty@moray.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.