Employer unfairly dismissed employee due to wrong view on student visa

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by Mark Cox, Director and Madeleine Brown, Lawyer

An employee who was suspended indefinitely without pay after her employer decided that she had breached the conditions of her visa was unfairly dismissed, according to the Fair Work Commission in Devi v Doutta Galla Aged Services Limited [2018] FWC 4142.

What happened in this case?

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 whist she was studying to become a nurse. Under her student visa, Ms Devi was prohibited from working more than 40 hours a fortnight, except during semester breaks.

Ms Devi’s employment contract provided 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”.

On 21 November 2017, 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 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 as her “ongoing right to work under your current visa is invalid until such time as we receive confirmation in writing from the Department of Immigration and Border Protection that you continue to have the right to work”. The employer adduced no evidence in support of that.

Ms Devi gave evidence that she had contacted the Department of Immigration and Border Protection (DIBP) and explained her circumstances. Ms Devi claimed that the DIBP told her that she had not breached her visa conditions and 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 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 denied that Ms Devi had been dismissed and maintained that she had breached her legal and contractual obligations to not work more than 40 hours each fortnight.

 What did the Commission decide?

The first question for Deputy President Gostencnik to decide was whether Ms Devi was dismissed. The Deputy President found that the employer had breached the contract of employment by suspending Ms Devi without pay. It had no lawful right to do so. In response to this breach, Ms Devi was entitled to conclude that her employer had been terminated at the initiative of the employer. Accordingly, Ms Devi was dismissed.

The Deputy President accepted Ms Devi’s explanation that she simply forgot to clock off at her registered finish time, commenting “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.”

Further, there was no valid reason for dismissal in this case. The employer’s conclusion that Ms Devi was “an illegal worker” was 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. It was also relevant that the Employer was not at risk of breaching the Migration Act 1958 (Cth), as it did not know or authorise Ms Devi to work the extra hours in breach of her visa conditions.

At all material times, Ms Devi had the right to work in Australia. The employer’s belief otherwise was not legally or factually correct and it was not objectively reasonable. It was likewise unreasonable of the Employer to require Ms Devi to obtain written confirmation of her right to work from the DIPB.

Considering all the circumstances of the case, the dismissal was harsh, unjust and unreasonable. The Commissioner reserved its decision on the appropriate remedies in this case.

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 employees. In this case, had the employer contacted the Department, they may have corrected their misunderstanding of the employee’s migration position, and thus have avoided an unfair dismissal claim.

This case also highlights that suspending an employee without pay is likely to amount to a repudiatory breach and constructive dismissal. Another take away is the need to get advice before terminations involving some complexities in the status of an employee, for example with respect migration visa status, or where the employee has exercised some workplace rights such as to take leave or raise health and safety issues or make complaints, or where they may have some attributes protected by anti-discrimination laws.

MDC Legal can provide advice regarding risk minimisation in disciplinary matters, performance management and terminations, both pre-emptively through appropriate workplace policies and procedures, and in response to employee claims.