Out of sight, not out of mind - beware the 457 visa

The number of foreign workers being recruited on 457 visas has diminished significantly in recent years due mainly to the economic climate and legislative changes.  There still remain in the Australian workforce over 100,000 primary 457 visa holders and, in many cases, their families whose time in Australia is ongoing.

From time to time a 457 visa employee is dismissed from their employment.

Some employers have the perception that if a 457 visa holder is dismissed, the employee will automatically be required to leave Australia and therefore have difficulty pursuing any remedies against the employer for the dismissal.  Whilst that could be an outcome, a 457 visa holder is often eligible for a further visa or bridging visa if the employee seeks time to remain in Australia to conduct proceedings against an employer in the Fair Work Commission or a Court.

However, an employee being on a 457 visa, does not provide an employer any particular latitude about complying with workplace laws in the expectation that the employee might be unable to pursue their legitimate workplace entitlements or other claim.

In certain instances, the process of dismissing a 457 visa holder has in fact proved to be more onerous for an employer than dismissing an Australian citizen.  In such cases it has been found that even though a 457 visa holder’s employment might have been terminated for a valid reason, the fact that the employee was on a 457 visa at the time of the dismissal, caused the termination to be harsh.

The harshness has been assessed against a number of factors including that the employee:

  • loses their right to work in Australia;
  • has no or limited capacity to obtain new employment in Australia;
  • has limited capacity to mitigate the lost employment in Australia.

These circumstances have had a bearing on the amount an employer has been ordered to pay in such cases for compensation for the dismissal.

Even if a dismissed 457 visa holder is required to leave Australia, that is not necessarily the end of the matter.  In Webster v Mercury Colleges 1, a teacher who was dismissed for serious misconduct was permitted to conduct his unfair dismissal application in Fair Work Australia (as it then was known) against his former employer by video link from the United Kingdom for a hearing conducted in Sydney.

 Lavan comment

 If a 457 visa holder’s employment is terminated, it is important for the employer to implement all the statutory processes they would normally follow to lawfully terminate an Australian employee.

Employers in such circumstances should give consideration to perhaps providing early written warnings, and advising underperforming or surplus staff of the possible consequences of termination, such as the prospective cancellation of their 457 visa.

Because an employee has left or may be required to leave Australia, does not necessarily mean that is the end of the matter.  The old adage of “out of sight, out of mind” does not apply in this instance.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.