Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy. No dismissal at employer's initiative matter dismissed

[1] In this matter, which was heard before me on 19 February 2020, I advised the parties that I would hand my decision down orally later that day and provide the parties with a written copy in due course, reserving the right to make any necessary minor changes to make the decision read more fluidly. This is the published version of the decision handed down in transcript, edited for style and clarity. [1]

[2] Mr Giree has filed an application alleging he was unfairly dismissed by his employer whom he has named in his application as "Jewels Restaurants - trading as Restaurant". He states he was employed since 13 October 2013 and that he was dismissed on 11 October 2019.

[3] Mr Giree represented himself with the assistance of his wife.

[4] Ms Indrani, the director and sole owner of Jewel Restaurants Pty Ltd, appeared on behalf of the named respondent, although it was submitted, they were not correctly named in the application as the employer.

[5] It is self-evident on a reading of the Fair Work Act 2009 (the Act) that an unfair dismissal unless otherwise amended, can only proceed on the basis that the named respondent was the employer, Secondly, that there was a dismissal as per s.385(a) of the Act. Further, a dismissal is taken to be at s.386(1)(a) of the Act - a termination on the employer's initiative.

[6] This matter requires a brief historical understanding of Mr Giree's employment history. Mr Giree is of Nepalese background. As I have noted already, he alleges he has been employed since 2013. In 2013, it is not disputed that Mr Giree commenced employment with a company - not necessarily the named one in his application - based on a student visa issued to him as a partner of his wife who was the student who was the primary visa holder. However, Mr Giree himself although holding a student visa - was not a student.

[7] His visa at the time allowed him to work limited hours as per the conditions of the visa. Pay slips tendered by Mr Giree indicate that in 2014 he was employed by a company known as Jewel of India Admin Pty Ltd in the position of a factory packer. That evidence was marked as Exhibit A1 in a bundle of documents. Mr Giree states that he incurred, in 2014 at work, a foot injury that has limited his ability to find work elsewhere.

[8] He was sent to - in his words - a takeaway shop at the University of Sydney in 2016 and worked 20 hours a week, which is the maximum allowed under his student visa. In 2017, Mr Giree obtained a temporary 457 skilled visa under the category of cook, which was offered to him by his employer as the employer sponsor. He states that he did this on the basis that he was led to believe by his employer that it would assist him in obtaining permanent residency in Australia.

[9] Mr Giree has produced a copy of his 457 visa approval from the Department of Immigration and Border Protection at the time and this indicated that the visa issued to him on 11 October 2017 operated for a two-year period, being the maximum period allowed under the Act for the classification of cook, therefore expiring on 11 October 2019.

[10] The visa contains work limitation 8107, which is a standard limitation for a 457 visa holder, being that the holder must only work with the sponsoring employer in the nominated role. There appears to be no limit on the number of hours that can be worked, although the position must be full-time for which a minimum salary must be paid.

[11] The sponsoring employer under the 457 visa is listed as Jewel of India Enterprises Pty Ltd and Mr Giree stated that he was told by his supervisor in September 2019 that his employer would not be able to renew his temporary 457 visa or seek a replacement visa on the expiration of the existing visa which was to expire, as mentioned, on 11 October 2019. On this basis he was told he needed to look for another sponsor.

[12] On 11 September 2019, he forwarded a text message to his supervisor, which has been provided in evidence, which stated among other things:

"I will not be able to come work regarding my visa issue."

[13] On 16 September 2019, he sent a further text message to his supervisor and, again among other comments, stated:

'Boss, I am really in trouble and only have 22 days for a visa. I don't know what to do. I am confused and depressed, as well.'

[14] Unfortunately, Mr Giree was not able to secure another sponsor under a 457 temporary skilled arrangement, therefore his right to continue to work in Australia under this visa ended on 11 October 2019, in accordance with the visa conditions; On 10 October 2019, he states he attended work and was told by his manager that he could no longer continue to work. Mr Giree states that he has worked for seven years and wasn't consulted about his dismissal, and that it was unfair.

[15] Ms Indrani, who appeared on behalf of Jewel Restaurants Pty Ltd, submitted that Mr Giree was not her employee and had not been dismissed by her business. It was her understanding that Mr Giree was unable to work past 11 October 2019, as his temporary skilled visa expired on this date and had not been renewed, nor was it able to be renewed by the current sponsor. It was acknowledged that Mr Giree was working in a restaurant run by her company and the pay slips indicated that Mr Giree was paid by Jewel Restaurants Pty Ltd. How this situation arose or was permissible under Mr Giree's visa was not satisfactorily explained.

[16] In any event, it is not in dispute that Mr Giree was - prior to his alleged dismissal - engaged on a 457 skilled visa with the company Jewel of India Enterprises Pty Ltd as his sponsor. It does not appear that he had any rights under his visa to work elsewhere other than possibly an associated entity. Ms Indrani, the sole shareholder of Jewel Restaurants Pty Ltd states that it is not an associated company or related with the nominated sponsor.

[17] The reason that Mr Giree's 457 sponsorship has not been renewed is that the sponsor has not been permitted to do so by the now Department of Home Affairs.

[18] It was explained by Ms Indrani that Jewel of India Enterprises Pty Ltd is currently in voluntary administration and has been so since April 2019, along with a number of related entities.[2]

[19] On 30 August 2019, it was advised by the Department of Home Affairs that it did not meet the relevant criteria for approval as a sponsor. Ms Indrani stated that her ex-husband was associated with Mr Giree's employer and related companies, and that the inability to nominate as a 457 visa sponsor was due to the employer being subject to what is known as adverse information as per regulation 1.13A of the Migration Regulations 1994, in particular (2)(d) which states "has become insolvent".

[20] In view of the above observations, I find as follows:

• Mr Giree was not an employee of Jewel Restaurants Pty Ltd as named in his application or Jewel Restaurants Pty Ltd - whom it is understood he meant to name.

• Mr Giree at the relevant time had no legal right to work for Jewel Restaurants Pty Ltd under the terms of his visa.

• Jewel Restaurants Pty Ltd had no legal right under Australian law to continue to engage his services on a full-time basis.

[21] On this basis he does not meet the requirements of having been dismissed by his employer as per ss.385 and 386 if he insists that his employer was Jewel Restaurants Pty Ltd.

[22] If it is taken that the real employer is that as stated on his working visa, Jewel of India Enterprises Pty Ltd or an associated company - namely Jewel of India Admin Pty Ltd which provides employee services and which a copy of an employment contract dated 20 June 2017 between Jewel of India Admin Pty Ltd and Mr Giree was provided by Ms Indrani - then a number of issues arise.

[23] Mr Giree's right to work full-time in his role as a 457 visa holder for the nominated sponsor terminated on 11 October 2019. His employer or nominated sponsor could not continue his employment past this date without Mr Giree's 457 visa being renewed or Mr Giree obtaining another visa that allowed him to continue working on a full-time basis. Neither of these possibilities has eventuated. The employer is now in voluntary administration and can no longer be a 457 visa sponsor, and Mr Giree has not been able to find another sponsor or obtain an alternate visa.

[24] Mr Giree was advised of this in September 2019 by his immediate supervisor and urged to find another sponsor, which he has been unable to do.

[25] Mr Giree at the hearing advised he has obtained a student subclass 500 visa as of 28 November 2019, relying on his wife as the primary visa holder. This only allows Mr Giree to work for a maximum of 20 hours per week, although Mr Giree states that he has not obtained any work as yet under this visa.

[26] For the purposes of his unfair dismissal application, Mr Giree was unable to fulfil his obligation to lawfully continue employment with his 457 sponsor. He had advance notice in September 2019 of the expiration of the two-year period of the visa and advised that it could not be renewed. He took time off to seek migration advice and, unfortunately, was not able to provide his employer with any evidence of his legal right to continue to work as a full-time cook in Australia on the expiration of his skilled visa. This is through no fault of Mr Giree, but unfortunately results in the frustration of his employment contract. An employer is not able to employ persons unless they have the relevant working rights.

[27] As his work visa rights ended as at 11 October 2019, he is unable to fulfil a fundamental employment obligation being the right to work full-time as a cook in Australia. There has been no dismissal either by Jewel Restaurants Pty Ltd or Jewel of India Enterprises Pty Ltd or Jewel of India Admin Pty Ltd of his employment and on this basis the Commission lacks jurisdiction to deal with the matter, and the application for an unfair dismissal remedy must be dismissed.

Mr S Giree, the applicant appeared on his own behalf with support person Mrs G Baral.

Ms D Indrani, Director - Jewels Restaurant Pty Ltd

[1] See extra curial publication (1997) 9 Judicial Officers' Bulletin Gleeson CJ at 25

[2] This decision does not deal with the power of the Commission to deal with applications where the employer is in voluntary administration as per the Corporations Act 2001

Printed by authority of the Commonwealth Government Printer