25 Mar Dismissing Visa Holders and Reinstatement
Introduction
The circumstances around dismissing visa holder employees is an issue often discussed by employees and employers. Many migrant workers in Australia hold visas that require them to be employed by an employer nominator. If a worker is terminated, there can be a risk their visa may be cancelled.
In some circumstances, a court has the power to order that an employee be reinstated. This may allow the migrant worker to continue satisfying the conditions of their visa.
The recent decision in Toppo v P & J Harris & Sons (A Partnership) [2024] FCA 257 (Toppo) demonstrates when a court can order an employer to re-instate the employment of a visa holder on an interlocutory basis.
Facts
The applicant was, at the time of the decision, the holder of a Temporary Skills Shortage (subclass 482) visa. A dispute arose between the applicant and the respondent concerning the applicant’s bonus. In the same conversation, the respondent dismissed the applicant from his employment.
The applicant claimed that his employment was terminated because he had exercised his workplace right to make a complaint or inquiry. The applicant’s visa conditions required him to find new employment within 60 days of becoming unemployed. The applicant applied to the Federal Court of Australia for an urgent interim order that he be re-instated because he had not found new employment.
The Law
Section 545 of the Fair Work Act 2009 (Cth) allows a court to make any order that it considers appropriate, including that an employer re-instate the employee.
A court may make an interlocutory re-instatement order if there is a serious question to be tried and the balance of convenience favours making such an order (Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [65]-[72]).
Decision
In Toppo, the Court found that there were few serious questions to be tried, including:
1. whether the parties agreed as a term of the applicant’s employment agreement the applicant’s bonus would be calculated in a particular manner; and
2. whether the respondent dismissed the applicant because he inquired into or complained about non-payment of his bonus.
The Court also found that, in the circumstances, the balance of convenience favoured the granting of the interim relief sought by the applicant. In doing so, the Court considered the following factors:
1. The applicant was on a temporary visa. His visa conditions included that the applicant would need to find new employment within 60 days, however the applicant had not found new employment.
2. The applicant had a wife and two children who were also not citizens of Australia.
3. There was a significant risk that the family might have to relocate overseas because of the dismissal.
Accordingly, the Court ordered that the applicant be reinstated. The Court also restrained the respondent from withdrawing its sponsorship of the applicant’s visa.
Conclusion
This case provides an example of a court exercising its power to make interlocutory orders, including interlocutory injunctions. It also demonstrates a prevalent issue in Australia concerning the intersection between employment and migration.
If you are a visa holder and have questions about your employment, please feel free to contact one of our staff. If you believe that you are being underpaid, please see our article on Underpayment of Wages.
Written by Caelan Shaw
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