Employers of 457 Visa holders must comply with both
Australian workplace and immigration laws, and any workers who are unfairly
dismissed or treated improperly have the right to enforce their rights.
A case brought to the Fair Work Commission by Mrs Maricar Virata, a citizen of the Philippines who had been working in Australia on a 457 Visa, is a clear reminder to all employers of their obligations when considering terminating employees on these visas.
Mrs Virata was employed to be the manager of the Halls Gap Motel. Her salary was $55,000 per annum plus superannuation. Her evidence was that she was expected to work from 7 AM until 1 AM, and she was expected to be on call outside those hours if needed, although this was disputed by the respondent.
She was accompanied in Australia by her de facto partner, and it transpired that he was expected to also work just as hard at the motel, and that her remuneration was to be split between the two of them. The Fair Work Commission found that 'on any view’ this arrangement was exploitative.
Ms Virata claimed that at some point she started to ask questions of her employer about her work conditions and that then, when she was on leave in the Philippines, she was sacked by email.
The respondent denied that she was terminated for the reasons claimed by her but because of two complaints by fellow employees, a complaint from a customer, and because of relationship issues between Ms Virata and her partner.
The commission found that none of the reasons put by the respondent by way of justification for its actions were valid. It also found that the respondent did not give plain and clear reasons to Ms Virata prior to making the decision to terminate her; nor was she given an opportunity to address any of the complaints which been made about her.
Ms Virata had not been given any proper warnings about how her performance was perceived by the respondent and because she was terminated by email once the complaints were put, she did not have an opportunity to respond to them with a support person present.
The commission described the respondent’s processes as being “inappropriate and unfair” and found Ms Virata was entitled to compensation for unfair dismissal.
Another factor taken into account by the commission was that because Ms Virata was on a 457 visa, it would be expected that the consequences of her being terminated were even more serious than might usually otherwise be the situation.
457 Visa holders need to be aware that there are employers who will try and take advantage of their vulnerable situation and terminate their employment without regard to their legal rights. Any worker who believes they have had their rights infringed should seek immediate legal assistance.
A case brought to the Fair Work Commission by Mrs Maricar Virata, a citizen of the Philippines who had been working in Australia on a 457 Visa, is a clear reminder to all employers of their obligations when considering terminating employees on these visas.
Mrs Virata was employed to be the manager of the Halls Gap Motel. Her salary was $55,000 per annum plus superannuation. Her evidence was that she was expected to work from 7 AM until 1 AM, and she was expected to be on call outside those hours if needed, although this was disputed by the respondent.
She was accompanied in Australia by her de facto partner, and it transpired that he was expected to also work just as hard at the motel, and that her remuneration was to be split between the two of them. The Fair Work Commission found that 'on any view’ this arrangement was exploitative.
Ms Virata claimed that at some point she started to ask questions of her employer about her work conditions and that then, when she was on leave in the Philippines, she was sacked by email.
The respondent denied that she was terminated for the reasons claimed by her but because of two complaints by fellow employees, a complaint from a customer, and because of relationship issues between Ms Virata and her partner.
The commission found that none of the reasons put by the respondent by way of justification for its actions were valid. It also found that the respondent did not give plain and clear reasons to Ms Virata prior to making the decision to terminate her; nor was she given an opportunity to address any of the complaints which been made about her.
Ms Virata had not been given any proper warnings about how her performance was perceived by the respondent and because she was terminated by email once the complaints were put, she did not have an opportunity to respond to them with a support person present.
The commission described the respondent’s processes as being “inappropriate and unfair” and found Ms Virata was entitled to compensation for unfair dismissal.
Another factor taken into account by the commission was that because Ms Virata was on a 457 visa, it would be expected that the consequences of her being terminated were even more serious than might usually otherwise be the situation.
457 Visa holders need to be aware that there are employers who will try and take advantage of their vulnerable situation and terminate their employment without regard to their legal rights. Any worker who believes they have had their rights infringed should seek immediate legal assistance.
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