Unfair dismissal and 457 visa holders

In a recent unfair dismissal case, a senior member of the Fair Work Commission has held that the treatment which he found an employer to have undertaken towards a 457 visa holder, described in the decision as “egregious”,  was a legitimate matter to take into account when determining whether the employee’s dismissal was relevantly unfair.

“There are other relevant matters which in my view contributed to the overall unfairness with which Mecca Bah dealt with Ms Boudna. Ms Boudna was a vulnerable worker who was dependent on her employment and sponsorship from Mr Simonian to remain in Australia and to achieve permanent residency. It is apparent from the evidence that Mr Simonian employs a number of such workers. The way in which Mr Simonian manages his employee relations leaves much to be desired and it appears that Mr Simonian’s approach is to threaten the job security and wages of already insecure employees to maintain control over them. In this regard Mr Simonian appears to hand out warnings indiscriminately. Mr Simonian’s email dated 14 July 2016 wherein he informs Mr Chilingaryan and Ms Kozmanyan that they are on their last warnings and that he has the right to terminate their employment and then goes on to ask: “Bobby advice (sic) me if I can terminate them ASAP please” is such an example. Mr Simonian’s own documents evidence that he is prone to exaggerated over-reactions to issues that he perceives with respect to the conduct or work performance of his employees, and that he engages in behaviour that is arguably bullying and threatening directed to employees.

A worker on a visa of the kind that applied in Ms Boudna’s case, if dismissed, has 60 days to find another sponsor to employ the worker in the same capacity, or must leave the country if some other form of bridging visa is not available. Ms Boudna was at Mr Simonian’s mercy and that is a matter to which I have had regard in considering whether she was unfairly dismissed. In my view Mr Simonian’s management of Ms Boudna (and other workers on visas) was appalling and would be so regardless of whether he was employing workers on visas or not. But the fact that the workers to whom Mr Simonian’s emails and other conduct were directed are particularly vulnerable because of their dependence on sponsorship makes Mr Simonian’s conduct all the more egregious.”

Boudna v Mecca Bah (Gold Coast) Trust (2018) FWC 6843 delivered 12 December 2018 per Asbury DP