Australia: What do employers need to consider when terminating someone on a visa?

Last Updated: 7 August 2019
Article by Lisa Qiu

Assisted by Maja Podinic

There's no surprise why companies want to sponsor migrants; their global skills enhance the business' competitiveness by offering something unique and the company's culture is enriched with diversity. What happens though when it's time to call quits on your employment relationship with a visa holder?

Terminating an employee on a visa is done in the same manner as any other employee. However, if you are a standard business sponsor, you are required to comply with the Department of Home Affairs' (DoHA) standard business sponsorship obligations. One such obligation is the requirement to notify the DoHA within 28 days, of when certain events occur, such as when the employment relationship ends.

Are Visa Holders Able to Make Unfair Dismissal Claims?

Yes! Visa holders are protected by the unfair dismissal and general protections provisions of the Fair Work Act, which means that they can make an unfair dismissal or general protections claim, as well as various discrimination claims.

For most working visa holders (such as workers on a 457/482 visa), there is a condition attached to their visa (condition 8107) which requires them not to cease employment for their sponsoring employer, and if the employment is ceased, it cannot be ceased for more than 60 consecutive days.

This means that if you terminate the employment of a visa holder with condition 8107 attached to their visa, unless they can find a new employer to sponsor them, or lodge another visa application, within 60 days from termination, they may be in breach of their visa conditions, and at risk of having their visa cancelled and/or face deportation. If they cannot make alternative arrangements within 60 days, as many visa holders are unable to, most visa holders will return to their home country.

The fact that terminating the employment of a 457/482 visa holder could result in them having to leave Australia (together with any family members who may have migrated with them), or otherwise face visa cancellation and potential deportation, means that the effect of termination on a visa holder is potentially harsher in effect than if the employee is an Australian citizen or permanent resident.

This is something the Fair Work Commission (FWC) can take into account in determining whether a termination was unfair (in other words whether it was harsh, unjust or unreasonable).

In Webster v Mercury College (2011), Mr Webster, an English teacher on a 457 visa, was dismissed after he used the colourful word "f..k" repeatedly in a class worksheet. Mercury College dismissed him without notice, for gross misconduct. Mr Webster was forced to relocate to the United Kingdom within 28 days after living in Australia for over four years.

The FWC found that in addition to a lack of procedural fairness (Mr Webster was not given an opportunity to respond to the allegations of gross misconduct), the termination was harsh because the relocation back to the UK had caused serious financial consequences and social dislocation.

Procedural fairness

When terminating the employment of any employee, employers should always carefully consider whether there is a legitimate reason for the termination and if so, how the termination should be appropriately implemented. Even in situations of gross misconduct, employers should ensure they follow a procedure which is fair. When terminating the employment of a visa holder, whether it be for poor performance, gross misconduct or redundancy, special consideration needs to be given to the likely impact of the termination on that particular visa holder, and whether given the circumstances, there is additional scope for the termination to be considered harsh, unjust, or unreasonable so that can all be factored into the decision making process.

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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