Iresha Rathnayaka v Young Men's Christian Association of Western Australia Incorporated

[2020] FWC 3076

[2020] FWC 3076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iresha Rathnayaka
v
Young Men’s Christian Association of Western Australia Incorporated
(U2020/1947)

COMMISSIONER WILLIAMS PERTH, 15 JUNE 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Iresha Rathnayaka (Mrs Rathnayaka or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 21 February 2020. The Respondent is the Young Men’s Christian Association of Western Australia Incorporated (the YMCA or the Respondent)

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.

[3] At the hearing of this matter Mrs Rathnayaka gave evidence on her own behalf and called Mr Mervin Neththikumara to give evidence. For the Respondent evidence was given by Ms Melinda Perry (Ms Perry), HR Manager at the YMCA.

Factual findings

[4] Mrs Rathnayaka says she started work with the YMCA on 31 March 2017. She first worked in the Newman centre and then transferred to the YMCA Port Hedland Early Learning Centre from 15 June 2017.

[5] Mrs Rathnayaka was employed as an Early Childhood Educator. Mrs Rathnayaka’s contract of employment with the YMCA includes the following clause. 1

“VISA

Your employment is conditional upon maintaining a valid visa or legal entitlement to work in Australia.”

[6] The Applicant was aware this was a term of her contract of employment.

[7] In fact, on 22 January 2020, Mrs Rathnayaka raised the issue of her visa soon expiring in a phone call with Ms Perry. Mrs Rathnayaka in her evidence agreed she was aware her visa was due to expire on 6 February 2020.

[8] In this phone conversation Mrs Rathnayaka asked the YMCA to sponsor her for a visa.

[9] By email later the same day Ms Perry confirmed to Mrs Rathnayaka that her current visa was due to expire on 6 February 2020. Ms Perry went on to explain that the request that the YMCA sponsor her under a subclass 491 visa was not possible because her understanding was that this visa class required Mrs Rathnayaka to be nominated by an Australian state or territory government agency.

[10] I am satisfied that Mrs Rathnayaka understood that a new visa was required for her to continue in her employment after 6 February 2020.

[11] On 23 January 2020, Mrs Rathnayaka replied to Ms Perry by email advising she had contacted her migration lawyer who had passed on details of a different visa, a subclass 482 visa. The same day Ms Perry replied by email advising Mrs Rathnayaka she would review her further request in relation to visa sponsorship.

[12] The next day 24 January 2020, Ms Perry wrote a letter formally to Mrs Rathnayaka that referred her to the Migration Act 1958 (Cth) (the Migration Act) and referring to the YMCA as having a legal obligation to ensure that all employees who were not Australian citizens hold a valid visa permitting them to work in Australia.

[13] The letter explained that it is the sole responsibility of the employee to ensure that they maintain a valid visa permitting work for the term of their employment.

[14] The letter advised that they had considered her request for sponsorship and decided that the YMCA will not be proceeding to sponsor her for a visa.

[15] The letter concluded by noting that Mrs Rathnayaka’s current visa expires on 6 February 2020 and strongly advised her to contact her migration agent for advice on her visa options going forward.

[16] On Wednesday, 5 February 2020 at 6:02 p.m. Mrs Rathnayaka sent an email to Ms Hodes, her Supervisor, which said her lawyer had advised her not to work on Thursday, 6 February 2020 until she got a bridging visa otherwise it would be illegal. She said she would not be at work on Thursday, 6 February 2020 but was sure she would hear from them by the end of Friday, 7 February 2020 and that she could start work again from Monday, 10 February 2020. The email said she would update Ms Hodes as soon as possible. 2

[17] Mrs Rathnayaka’s oral evidence at hearing was that she had applied for a new visa on Tuesday, 4 February 2020. There is no evidence that this was communicated to the YMCA at the time.

[18] Ms Perry’s evidence was that on the morning of Friday, 7 February 2020, she arranged for a Visa Entitlement Verification Online (VEVO) check to be conducted, she in fact conducted this twice to ensure the records were accurate. The check details stated that “VEVO has not identified a visa for this person…”.

[19] Ms Perry’s evidence was that Ms Hodes was in Perth attending training on Friday, 7 February 2020. Ms Perry and Ms Hodes rang and spoke to Mrs Rathnayaka to advise her that they had conducted a check of her visa status which had indicated that she no longer had a visa and so no longer had the right to work in Australia. She says they asked Mrs Rathnayaka if she could provide any documentation to support that she had lodged a new visa application. Ms Perry says Ms Rathnayaka’s response was that she could not provide such documentation and on that basis they had no evidence to indicate that Mrs Rathnayaka was likely to be granted a visa.

[20] Ms Perry says that consequently based on their understanding of the Migration Actthey advised Mrs Rathnayaka that her employment would be terminated. They advised her that they would provide a termination letter to her via email. 3

[21] Mrs Rathnayaka’s evidence confirms this phone conversation however, her evidence was that she had told them to give her time to provide some sort of document.

[22] An email was sent at 11:48 a.m. to Mrs Rathnayaka which refers to the recent phone call and attaches the termination of employment letter which reads as follows.

“This letter is confirmation of our discussion on 7 February 2020 where we advised you that your employment with YMCA WA has been terminated effective immediately.

On 24 January 2020 we wrote to you regarding your request for YMCA WA to support your application for Australian visa sponsorship.

In this letter we advised you that under the Migration Act 1958, YMCA WA has a legal obligation to ensure that all employees who are not Australian citizens hold a valid visa permitting them to work in Australia.

In accordance with the above legislation, we refer to the YMCA WA Visa and Sponsorship Policy, which provides that YMCA WA requires all employees to hold and maintain legal rights to be employed in Australia by being an Australian Citizen, Resident, or possessing an appropriate and current visa status as outlined by the Department of Home Affairs.

Your existing visa expired on 6 February 2020 and subsequently we have conducted a check of your visa status which has advised that there is no visa identified for you.

You contract of employment with YMCA WA dated 2 June 2017 states in clause 2 that your employment is conditional upon maintaining a valid visa or legal entitlement to work in Australia.

YMCA WA has no other option than to terminate your employment immediately as you no longer hold the right to work in Australia.”

[23] The Applicant some time later was paid in lieu of notice for the termination.

[24] After the termination of employment, on Monday, 15 February 2020 the Applicant emailed Ms Perry informing her that she had now obtained a bridging visa and sought reconsideration of her dismissal. A further VEVO check confirmed a visa grant date of 14 February 2020.  4

Submissions

The Applicant

[25] The Applicant submits that if the YMCA was really working according to the law and their policies, they should have notified her at least one week prior and specifically stated that on a particular day they will terminate her employment if she cannot provide a valid visa. But they had not done this.

[26] The Applicant submits that she had 28 lawful days from the visa expiry date which provided her all working rights as she had before. She says she had already applied for another visa and was waiting for the Department of Immigration to respond. She says the Respondent did not want to give her more time, suspend her or send her on leave without pay for some time, to allow time for her to provide the visa documents. Instead they terminated her straight away.

[27] The Applicant submits that because she had not received any kind of notice about possible termination she assumed the Respondent would not do anything to her job, because she worked as a full-time employee for a long time and they were aware of her family situation and that her job is important to her.

[28] The Applicant submits that for a long time the YMCA has been trying to get rid of her.

[29] She submits that she had to lodge complaints with the Human Rights Commission regarding flexible working hours.

The Respondent

[30] The Respondent submits that it had no discretion in this matter. Under the Migration Actit was unlawful for the Respondent to employ a person who did not have valid work rights. 5

[31] It is submitted the Respondent had a valid reason for terminating the Applicant’s employment because under the Migration Act the Respondent has a legal obligation to ensure that all employees, including the Applicant, hold a valid visa permitting them to work in Australia (and any breach of these obligations attract serious penalties for the Respondent).

[32] At all relevant times, the Applicant’s employment was conditional upon maintaining a valid visa to work in Australia and on 22 January 2020 Ms Perry verbally corresponded with the Applicant regarding the upcoming expiry of her existing visa, and on 24 January 2020, wrote to the Applicant regarding the same.

[33] The Respondent submits that at no time did the Applicant advise the Respondent that she had obtained a new or bridging visa.

[34] On 6 February 2020, the Applicant’s existing visa expired and on 7 February 2020 the VEVO check confirmed the Applicant did not hold a valid visa to work in Australia and because the Applicant no longer held a valid visa to work in Australia, the Respondent was left no other option than to immediately terminate the Applicant’s employment, and it did so on 7 February 2020.

[35] By reason of the letter sent to the Applicant on 24 January 2020, the telephone correspondence between the Applicant and Ms Perry on 7 February 2020, and the subsequent termination of employment letter dated 7 February 2020, the Applicant was notified of the reasons for the dismissal.

[36] The Applicant was provided an opportunity to respond to those reasons, by way of providing the Respondent with the details of any new visa the Applicant held (permitting her to work in Australia beyond 6 February 2020), and failed to do so prior to her dismissal.

[37] It was not until 15 February 2020, that the Applicant emailed the Respondent informing it she had since obtained a bridging visa and sought reconsideration of her dismissal and request to vacate her subsidised house. A VEVO check confirmed the visa was granted on 14 February 2020.

[38] Post the termination of the Applicant’s employment, there were three positions advertised at the Port Hedland Early Learning Centre; Qualified Childcare Educator and Early Childhood Teacher which were posted 10 February 2020 and Assistant Centre Director which was posted on 28 February 2020. The Applicant did not apply for any of these positions.

[39] For the reasons above the Respondent denies the Applicant’s dismissal was harsh, unjust or unreasonable. The Respondent asserts that as a matter of law, it had no option but to terminate the Applicant's employment at the time her visa expired.

The legislation

[40] Section 387 of the act prescribes matters that the commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable. This section is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Valid reason

[41] The reason the Respondent dismissed the Applicant was that at the time of the dismissal she did not hold a valid visa that permitted her to work in Australia.

[42] This in my view is a valid reason related to the Applicant’s legal capacity to work in Australia.

[43] If I am wrong in viewing the Applicant’s legal capacity to work as falling within the reference to “capacity” in section 387(a) of the Act, then the fact the Applicant at the time of her dismissal did not hold a valid visa that permitted her to work in Australia most definitely is a relevant matter for the Commission to take into account under section 387(h) of the Act.

[44] Regardless of whether the reason for dismissal properly falls within section 387(a) or 387(h) of the Act the Respondent had an entirely legitimate reason for the dismissal, which was not capricious, fanciful, spiteful or prejudiced.

Notification of reason for dismissal

[45] The Applicant herself clearly knew in January 2020, that she needed to have a valid visa to continue her employment beyond 6 February 2020, when hers was due to expire. The Applicant initiated a conversation with the Respondent about this issue herself.

[46] At hearing the Applicant says, and argues in her submission, that she was never notified prior to the day she was terminated that she would be terminated if she did not have a valid visa permitting her to work. Whilst I accept that is strictly the case that is not to say that the Applicant had not been notified of the consequence of her not having a valid visa. It is clear the Applicant understood that her continued employment relied on her having a valid visa that allowed her to work in Australia.

Opportunity to respond

[47] There was a discussion with the Applicant on the telephone before the Respondent made the decision to dismiss her on 7 February 2020. It was made plain to her in that discussion that without a valid visa to work in Australia her employment was going to be terminated.

Refusal to allow support person

[48] There was no refusal to allow the Applicant to have a support person present during any discussions regarding her dismissal.

Warnings in respect of unsatisfactory performance

[49] The dismissal was nothing to do with the Applicant’s performance.

The size of the Respondent’s enterprise and the existence of Human Resources Specialists

[50] The Respondent is a large employer and does have dedicated Human Resource managers and specialists and the process followed from the 20 January 2020 through to 7 February 2020 is consistent with this.

Other matters relevant

[51] The Applicant had from the commencement of her employment been aware that her continued employment was expressly conditional upon her maintaining a valid visa or legal entitlement to work in Australia. She had also been expressly advised by the Respondent in writing on 24 January 2020, that the obligation was solely hers to ensure that she had a new visa in place when her visa expired on 6 February 2020.

[52] Had the Respondent not terminated the employment the fact the Applicant did not have a valid visa after 6 February 2020, arguably would have brought the employment contract to an end automatically by virtue of frustration.

[53] This has been held to be the result in other such cases concerning employees requiring visas to lawfully work. For example, in the case of Subash Giree v Jewels Restaurants T/A Restaurant 6 Deputy President Bull concluded that:

“[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.”

[54] Another relevant matter in this case is the fact that to continue to employ the Applicant after her visa expired on 6 February 2020, would likely have been a breach of the Migration Actand potentially exposed the Respondent to legal sanction.

[55] The dismissal of the Applicant, as is commonly the case, has regrettably had significant negative consequences for her and her family.

Conclusion

[56] Considering all of the matters above this is an unfortunate case where the Applicant did not act sufficiently early to put in place a new visa that would have allowed her to lawfully work in Australia after the expiry of her original visa.

[57] The Applicant was aware that her continued employment was, expressly under her contract, conditional upon her having such a visa granting her working rights.

[58] The YMCA responded promptly to the Applicant’s enquiries about alternative types of visas and about employer sponsorship when she first raised this with them 14 days before her visa was to expire. On 24 January 2020 the Respondent also reminded the Applicant in writing of the expiry date of her visa and reinforced that it was her sole responsibility to ensure that she continued to hold a visa that permitted her to work in Australia.

[59] The Applicant however only applied for another visa on Tuesday, 4 February 2020, knowing her existing visa expired on Thursday, 6 February 2020.

[60] The proposition that the YMCA should have continued to employ the Applicant knowing she did not have a valid visa is entirely unreasonable.

[61] In all the circumstances the Applicant has not persuaded me that her dismissal was either harsh, unjust or unreasonable.

[62] The Applicant’s dismissal was not unfair. An order [PR720132] will now be issued dismissing this application.

Appearances:

Mr I Rathnayaka, the Applicant her own behalf.

Ms M Perry, from the Respondent.

Hearing details:

2020.
Perth (Telephone):
June 10.

Printed by authority of the Commonwealth Government Printer

<PR720131>

 1   Applicant’s Employment Contract, FWC Court Book at pages 50-52.

 2   Witness Statement of Ms Perry, Attachment 11, FWC Court Book at page 135.

 3   Ibid, Attachment 3, FWC Court Book at pages 112-113.

 4   Ibid., Attachments 5 and 6, FWC Court Book at pages 117-120

 5   Ibid., Attachment 7, FWC Court Book at pages 121-122.

 6   [2020] FWC 1055.