A chef on a 457 visa sacked by his employer was entitled to $110,577.25 in compensation. That was slashed to $27,500 because of a cap on compensation in the Fair Work Act 2009.
The chef was sponsored by his employer on a subclass 457 visa and employed as a qualified chef under the skill shortage rules. He was told by his former employer:
“I sold my business to Ido and new business will not able to sponsor you guys, you finish from this business, you can go home.”
The dismissal wasn’t related to the chef’s conduct or capacity, it wasn’t a genuine redundancy, and it was harsh and unjust.
The employer didn’t turn up to the hearing or participate in any meaningful way.
Compensation for unfairly dismissed 457 visa holder
The compensation is the dramatic part.
The employee was entitled to a minimum income of $55,000 under his employment agreement.
The FWC said the chef could expect to continue to remain in his employment until the end of his visa sponsorship – a period of five years. Compensation was calculated over that entire period.
The employee chef said he’d found it difficult to get work after being dismissed because he needed a new sponsor. He’d since found work, but was waiting on approval from the Department of Immigration and Border Protection before he could start.
Those three factors added up (with some other maths) to compensation of $110,577.25.
The chef’s former employer benefits from a statutory cap (in this kind of case) of six month’s pay. That cut the compensation to $27,500.
Genuine redundancy and selling a business
The FWC recognised that an employee may be made redundant as part of the sale of hospitality business.
This wasn’t available here as the employee was dismissed well before settlement of the sale of the cafe and there was evidence that a chef was still required at least up until settlement.