Unfair dismissal finding for employee accused of breaching Visa

Doutta Galla Aged Services Ltd has recently lost a case in the Fair Work Commission over the dismissal of an employee on a student Visa. On Friday 2 November the Commission agreed to set a date for a hearing to determine compensation for the Applicant.

Background

The Applicant, Preeti Devi, was employed by the Respondent under a student Visa while studying at the Australian Catholic University. At the heart of this case was the question of whether or not the Applicant had worked for more than 40 hours per week and was therefore in breach of her Visa. The Respondent argued that being in breach of her Visa conditions would mean a serious breach of her employment contract, and therefore sufficient grounds for summary dismissal (dismissal without notice).

What the FWC found

The Commission flatly rejected this claim. saying that even if the evidence of her working more than 40 hours per week were accepted, it is doubtful that such conduct, even if technically in breach of Visa conditions, would actually be severe enough to warrant dismissal. Moreover, in several instances where alleged breaches were raised, the Commission found that because the university semester had not commenced at the time, the Applicant was not in fact in breach.

The Respondent argued that Ms Devi was actually still employed and submitted evidence to substantiate that claim. The Commission was nevertheless dissatisfied, claiming. “None of this assists the Respondent…” The Applicant had not been given work for a period of several months, and the fact that her contract of employment stipulated working hours was evidence enough, in the Commission’s opinion, to reject the assertion that the Respondent was still employing Ms Devi.

Deputy President Gostencnik summarised the facts by stating, “…there is nothing in material before me…which suggests the Respondent allowed her to work in breach of her Visa conditions.” The Commission was satisfied that she had in fact been dismissed by the Respondent.

The Commission did not believe there was a valid reason for Ms Devi’s dismissal. The Commission also found that the Applicant was given some, but not sufficient opportunity to respond to various allegations made against her. Consequently, the case was decided in favour of the Applicant.

Ms Preeti Devi v Doutta Galla Aged Services Limited [2018] FWC 4142