Employer Unjustifiably Dismisses and Disadvantages Migrant Worker Over Visa Status – Must Pay $18,000 in Compensation

 

The migrant worker’s 2 year visa was due to expire on 7 March 2019. Leading up to this expiry date, which the employer was aware of, the employee sought assistance from his employer to apply for a new visa. The employer advised it would assist however his employment would terminate on 7 March 2019 should he fail to provide the employer with evidence that he obtained a new visa. The employer subsequently advertised his role, thinking it was required to do so to satisfy the essential skills visa requirements, and informed the employee this was simply a formality, giving the impression he would retain his employment. The employer subsequently appointed a New Zealand citizen to the role and informed the employee on 8 February 2019 he had been unsuccessful in applying for his own role.

The employer was found to have acted unjustifiably by not informing its employee that it had decided not to support his visa application and was actively seeking a New Zealand citizen to fill the role. Although it was unclear whether or not the employer’s support of the employee’s visa application would have meant it would be successful, and his employment therefore continued, it was apparent his pathway to obtaining the visa was removed by the employer. The Authority heard evidence from an immigration specialist.

The employer was also found to have dismissed the employee when on 8 February 2019 it informed him he had been unsuccessful in his application, notwithstanding that his last day of actual employment was 7 March 2019. Notably the employee was employed on a permanent basis. The Authority found the dismissal to have been unjustified because:

  • The employee’s visa was not due to expire until 7 March 2019 yet the employee replaced him prior to that date, despite the fact he had been given until then to obtain his visa.
  • The employer failed to assist the employee with his visa application while giving the impression it was.
  • The employer failed to be open and communicative with the employee. It did not advise its employee it believed he would not be successful in his visa application and therefore had made a decision to both replace him and remove its support.
  • The employer ignored the fact the employee was employed on a permanent basis and therefore should not have advertised his position or replaced him until it was certain he had failed to obtain a new visa.
  • By replacing him on 14 February 2019 the employer had acted pre-emptively as it was some three weeks before the employee was required to have a new visa or some form or temporary visa.
  • By taking away the employee’s opportunity to progress his application the employer had predetermined the matter and second guessed the (then unknown) outcome of the immigration process.

Interestingly the employee was not awarded any lost wages because the Authority considered his employment would not have continued after 7 March 2019, as he did not have the requisite visa, and therefore he suffered loss of wages as a result of his inability to work rather than dismissal.

Immigration considerations often intersect and overlap with employment law. It is important that every employer fully understands how to act fairly and reasonably when it comes to staff renewing their visas, when it appropriate to advertise and how long the employer must leave the role open for. In this case the employer’s default could possibly have been avoided if it had originally employed the employee on a two-year fixed term employment agreement, as opposed to employing him on a permanent basis.