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Visa Holder Accused Of Being An ‘illegal Worker’ Wins Unfair Dismissal

Visa holder accused of being an ‘illegal worker’ wins unfair dismissal

A visa holder accused of being an ‘illegal worker’ has won her unfair dismissal claim.

The employer suspended her indefinitely without pay, after it incorrectly decided she had breached the conditions of her visa.

The Fair Work Commission described the suspension as an effective dismissal, and subsequently found it harsh, unjust and unreasonable.

Visa holder wins unfair dismissal

Preeti Devi worked as a part-time food services assistant in the facility operated by Doutta Galla Aged Care Services in Melbourne.

She had been studying to become a nurse at the time.

The conditions of her visa only allowed her to work a maximum of 40 hours a fortnight, except during semester breaks.

In addition, her employment contract stipulated that she:

  • not work in excess of 20 hours a week;
  • not accept and/or request more than 20 hours a week; and
  • immediately inform the Employer if she is asked to work in excess of 20 hours a week.

1.91 hours of illegal overtime

In November last year, the employer issued Devi with a “show cause” letter, accusing her of working 1.91 hours in excess of her rostered shift two weeks earlier.

She therefore worked more than 40 hours in the fortnight.

Devi explained that she likely forgot to clock-off in time because she had been talking with a colleague, or waiting with a patient for an ambulance.

Doutta Galla Aged Care Services refused to accept the explanation, and subsequently suspended her without pay, arguing she had breached her visa conditions.

The employer did not provide any evidence to support this position.

Department of Immigration & Border Protection

Devi contacted the Department of Immigration and Border Protection (DIBP) which said she had not breached her visa conditions, and confirmed her visa still valid.

The DIBP told her it only cancels visas following an investigation to establish if there is a pattern of knowing and deceitful intent to breach its conditions.

However, the DIBP refused to issue a written confirmation.

Devi relayed this information to the nursing home management, however, they insisted that she was an “illegal worker”.

It therefore refused to roster her on any more shifts until she provided evidence to the contrary from the DIBP.

What the Commission found

Deputy president Val Gostencnik found the nursing home had no lawful right to suspend Devi without pay.

She also found the nursing home had effectively dismissed Devi.

The deputy president accepted Devi’s explanation that she had simply forgotten to clock off at the registered time, and criticised the conduct of the employer:

“This is hardly the stuff of a serious and deliberate breach of a visa condition or the contract of employment.  It is respectfully, a trifling matter.

“Just because Ms Devi had unintentionally breached the conditions of her visa on one occasion, did not mean that her visa was automatically cancelled.

“At all times, Ms Devi had the right to work in Australia. 

“The employer’s belief otherwise was not legally or factually correct and it was not objectively reasonable.”


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READ DEPUTY PRESIDENT GOSTENCNIK’S FULL DECISION  

 


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