TERMINATION OF EMPLOYMENT – contract for specified term – 457 visa – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a carpenter – contract of employment subject to 457 visa approval – 457 visa approved 13 September 2012 – during employment the applicant submitted he suffered some abuse as his supervisor tried to slap his face in 2015 and in November 2015 yelled at him after leaving work early and threatened to dismiss him – 457 visa set to expire 13 September 2016 – on 23 July 2016 applicant enquired as to whether his 457 visa would be extended – Commission satisfied neutral response was provided advising this was a decision for the respondent’s directors – respondent submitted directors did not intend to apply for an extension as no shortage of local carpenters – on 31 July 2016 respondent advised applicant via letter that it would not be making an application for extension of his visa and that they were terminating his employment that day with pay in lieu of notice to 1 August 2016 – applicant submitted he was dismissed for being more skilled than his supervisor and that he did not accept his poor treatment – Commission found no evidence applicant’s supervisor had any influence over or involvement in respondent’s decision to dismiss applicant – respondent submits that the reason for dismissal was that the respondent could not legally employ the applicant beyond 13 September 2016 when his visa expired – Commission found respondent had good reasons why this was neither necessary nor was it likely to be successful even if they had made such an application for an extension of his visa – found respondent was not required to apply for an extension of his visa – respondent had had no capacity to employ applicant after his visa expired – Commission found reason for dismissal was sound, defensible and well founded and thus was a valid reason for applicant’s dismissal – however Commission found no valid reason for early termination on 1 August 2016 – applicant could have remained employed until visa expiry on 13 September 2016 – respondent provided no explanation for reason for early termination – found premature ending of employment denied the applicant three weeks’ wages and only to that extent his dismissal was harsh – Commission satisfied applicant unfairly dismissed – reinstatement inappropriate – compensation appropriate – anticipated period of employment until expiration of visa on 13 September 2016 – order issued for payment three weeks wages. Austria v MCPBB P/L t/a Modern Joinery
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