While sick with COVID-19 and heavily medicated, international student and IT worker Bernard (not his real name) was dismissed from his job over the phone.
"I was on sick leave and I couldn't process it then. I didn't know what was happening. I wasn't given a reason."
He was sent a letter of termination that night and asked him to return the office equipment he was using.
At that time, Bernard had only been with the company for less than a year; but the company had initially offered him a work visa sponsorship.
He believes that he had been unfairly dismissed.
Listen to Bernard's story
What are your options if you are unfairly dismissed?
SBS Filipino
03/11/202209:07
What is an unfair dismissal?
According to the Fair Work Commission, an employee is unfairly dismissed if:
1. It is done in a harsh, unjust or unreasonable way.
2 If an employee is made redundant but it is not a genuine redundancy
3. If the employer is a small business and the dismissal does not follow the .
If an unfair dismissal occurs, the following options may available for the employee:
Conciliation
A conciliation is a voluntary and informal way of resolving the unfair dismissal between the employee and employer.
Generally conducted over the phone, a conciliation is done to avoid a legal hearing.
A trained and experienced Commission staff or member will generally conduct and mediate a conciliation.
A settlement is possible, but not required.
When the parties reach an agreement, a written settlement will be signed by both. If any of the parties are unrepresented, they may be offered a 3-day cooling off period to decide to opt out of the settlement.
When no settlement is reached, the issue automatically proceeds to a formal hearing if the employee chooses to continue their claim.
Bernard's conciliation with his former employer proved unfruitful, with him disputing claims that he wasn't performing his duties well.
Pursuing a claim
When an unfair dismissal case goes to a hearing, the Commission Member decides on the outcome based on the law.
If the dismissal was deemed unfair, the employer may either pay the employee compensation set by the law or give them their job back.
Either parties may opt to appeal the decision.
General protections dispute
In Bernard's case, the Fair Work Commission encouraged him to apply for a general protections dispute in federal court instead because he had only been employed in the company for less than a year.
Under the Fair Work Act 2009, principal work protections are divided into:
Visa cancellations
Florence Dato, a community organiser at the Migrant Workers Centre, emphasises that all employees in Australia, regardless of visa status, have equal workplace rights.
She says that while temporary visa holders like Bernard are particularly vulnerable to workplace exploitation and unfair dismissals, they should be aware that only Home Affairs can take away their visas.
"Home Affairs has a partnership with the Fair Work Ombudsman to support visa holders who ask for help and support regarding work issues. This arrangement is called the.
"It's important to that you know your work entitlements and rights, so you can better protect yourself."
Disclaimer: This article is for general information only. For specific visa advice, people are urged to check with the or contact a trustworthy solicitor or registered migration agent in Australia.
