Employee unfairly dismissed on working visa receives maximum compensation

The Case

Dilsher Singh v Dairy Kosher Catering Pty Ltd T/A Milk n Honey (2016)

Dairy Kosher Catering Pty Ltd T/A Milk n Honey (DKC) employed Mr Singh as a chef in a café under a section 457 visa. On 2 March 2016, Mr Ohana, DKC’s owner, said to Mr Singh and another employee: “I sold my business to Ido and new business will not able to sponsor you guys, you finish from this business, you can go home.” The termination of Mr Singh’s employment was not due to redundancy as the dismissal had occurred well before the sale of the café. Mr Singh commenced an unfair dismissal claim in the Fair Work Commission (FWC).

The Verdict

The FWC held that Mr Singh, despite being employed on a working visa, was entitled to make an unfair dismissal claim.

The FWC found that the termination of Mr Singh’s employment was unfair because:

the termination was not caused by redundancy and was not related to Mr Singh’s capacity or conduct;
Mr Singh was not provided with a valid reason for his dismissal;
Mr Singh could have worked up until the settlement of the sale of the business; and
Mr Singh was not given an opportunity to respond to the decision to terminate his employment.

The FWC found the termination of Mr Singh’s employment was particularly harsh, as he could have been deported if he could not find another sponsor.

The FWC found that Mr Singh could have expected to remain in his position until the expiry of the s 457 visa on 26 August 2019. This meant even discounting for contingencies and the fact Mr Singh had found work pending approval from the Department of Immigration, Mr Singh’s damages were $110,577.25. However, this was reduced to $27,500, being the maximum the FWC could award given the legislative cap on unfair dismissal compensation awards.

Lessons

Employers should be aware that employees employed under working visas have access to employment law claims under Australian laws. These employees need to be afforded procedural fairness when their contracts of employment are terminated. Even greater care needs to be given when terminating employees on working visas given the potentially harsh consequence of the termination: deportation.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.