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457-visa holder unfairly dismissed despite deceiving employer

The restaurant claimed to have issued three warnings to him before dismissal.
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457-visa holder unfairly dismissed despite deceiving employer

457-visa holder unfairly dismissed despite deceiving employer

14 October 2020

By Mike Toten

A cook on a 457 visa and fixed-term contract was unfairly dismissed despite having someone else complete his English language test and despite recording conversations with his employer without its permission or knowledge.


Facts of case

The cook was 18 months into a 4-year fixed-term contract prepared by the Department of Home Affairs, employed by a Chinese restaurant in Adelaide. The restaurant dismissed him, claiming performance issues mainly related to cooking errors and customer complaints, and for fabricating his English-speaking qualifications. It claimed to have issued three warnings to him before dismissal.

However, the Fair Work Commission (FWC) found that those “warnings” were manufactured after dismissal, and what he in fact received while working was no more than occasional informal verbal feedback. It also found that the employer had exaggerated the gravity of the complaints it received, concluding that a history of occasional shortcomings could have put the employer’s job at risk, but the actual problems identified were insufficient to provide a valid reason for dismissal.
 
Fabricating his qualifications could, however, have provided a valid reason for dismissal. Another person sat his English language skills test, but did not notify the authorities of that, and did not tell the employer until about one year into his employment. The employer merely commented that it was a serious matter, but did not follow up on it. It continued his employment for a further six months, then dismissed him with pay in lieu of notice. The delay indicated that the employer did not regard the fraud as serious misconduct justifying summary dismissal. In the circumstances, this was not a valid reason for dismissal either, although it may have been one if the employer had acted immediately (because it was serious misconduct).
 
After dismissing him, the employer discovered that he had secretly recorded some conversations at work, intending to use them to assist his cases before the FWC and Border Force. It claimed this was a further valid reason for dismissal, as it breached the South Australian Surveillance Devices Act 2016, but the FWC said that the employee had acted to protect his lawful interests, and this also did not amount to a valid reason for dismissal.
 
In his defence, the employee alleged the following:
  • His contract approved by the Department of Home Affairs specified his wages, but the employer required him to return between two-thirds and three quarters of it to them. Therefore he was a victim of ongoing wages exploitation, and unable to complain because he was a vulnerable employee on a 457 visa at risk of deportation.
  • The employer had demanded he pay it $35,000 in order to progress a permanent sponsorship visa. When he refused, he was not paid any wages for three months, although he continued to work. Three weeks later he was dismissed.
  • The employer had few if any problems with his work until he complained to the Fair Work Ombudsman and Border Force about the above after the employer increased the percentage of wages to be returned to it. After that, it set out to dismiss him.
  • He was a victim of the English language fraud, not a perpetrator of it.

The FWC described the evidence presented by witnesses on behalf of the restaurant as “unsatisfactory”. It also found that an imposter “almost certainly” did the employee’s language test.


Decision

The FWC said that it could only deal with the issue of whether unfair dismissal had occurred. Other issues such as legal compliance were up to other authorities, eg Department of Home Affairs to investigate and determine. Some of the employee’s allegations were more of the nature of a general protections claim. The FWC found that there was some evidence that the employer had made unlawful demands on the employee, but it was insufficient to conclude that dismissal was unfair for that reason.

The FWC concluded that the dismissal was unfair and not in compliance with the Small Business Fair Dismissal Code. It awarded eight weeks’ pay as compensation, but then deducted four weeks for contributory misconduct and a further two weeks for his pay in lieu of notice, leaving a total payout of two weeks’ wages.
 
The bottom line: This was a complicated case in which the FWC found fault with the evidence of both parties. Although various other issues were raised (eg relating to immigration and underpayment), the only issue the FWC could resolve was whether the employee was unfairly dismissed.
 
The employer’s claim that fraud by the employee provided a valid reason to dismiss was undermined by the fact that it initially took no action after becoming aware of it and continued to employ him, only dismissing him six months later after becoming aware of his complaints made against it.
 
If an employer becomes aware of proven serious misconduct (such as fraud), it needs to investigate and act immediately – not continue to employ someone and sometime later try to use it as part of a reason for dismissal.
 
The case is also an example of the FWC making significant deduction from a payout amount due to contributory misconduct by the employee.


Read the judgment

Hu v Rong Wei Pty Ltd ATF the Bian Family Trust t/a Shanghai Garden Chinese Restaurant [2020] FWC 5210, 30 September 2020 

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