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
Increased funding to send more workers to regional parts of
New Enterprise Migration Agreements to speed up employers'
access to temporary migrants
An additional $10m for the sponsored workers program.
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
In Webster v Mercury Colleges Pty Limited  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  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
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
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
Take extensive care when making decisions regarding
Be fastidious in ensuring procedural fairness and appropriate
notice when terminating sponsored employees.
For further information, please contact: Scott Puxty,
T: +61 2 4911 5410
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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