Can Employer Waive Your Notice Period (457 Visa No Longer Valid)

Hello!
I am just bit perplexed regarding this situation and hoping to get some insights.

on june 30, I received a notice from DIBP that my 457 nomination for sponsorship is no longer valid and I have 28 days to take action.
My work contacted their immigration agency in regards to the situation.
Due to the fact our annual holiday leave was scheduled to commence on july 3rd I was bit worried as we would be closed for three weeks.
I was told that it will be taken care of before the end of holiday.
Two weeks after the letter from DIBP I am told that work is reapplying for the application to sponsor and asked me to sign new letter of offer, contract and such.
I sent it off to the immigration agency chosen by workplace and waited.
On the day of coming back, a day before I was to take action regarding fault 457 application my workplace notified me that they will no longer forego with my application.
I told my employer in light of new situation I must leave to find other means to stay in australia.
No notice was given at the time nor any talk of resignation.

After 6 business day I have handed in my written resignation with 4 weeks notice.
During those 6 days I was meeting with immigration agents and going through universities for possible student visa or alternative application that I can file to stay in Australia.
I was told that my service is no longer needed as they found alternative while I was gone for 6 days.
There were even communication regarding possibility of casual employment.
Not once was there a break in communication or employer's comment regarding my replacement.
I have given notice at my work of 4 weeks as per indicated in the contract.
As for 6 days of missing work I told them I considered it to be my personal leave as visa problem came up without warning and I had to set my affairs in order before coming back to work which he agreed that he understands.
My employer replied saying they have found other alternatives.
I asked that I will consider my 4 weeks to be in lieu of notice which employer agreed with yes.
I assumed that I will be paid for the 4 weeks of notice that employer waived but they have gotten back to me saying that they do not have any obligation to pay me.
is that correct?
Please help me out as I am very confused and in need of guidance.
Thank you

Comments

  • +9 votes

    It's very difficult to understand your story and timelines.

    After 6 business day I have handed in my written resignation with 4 weeks notice.

    Does this mean on the 6th day of your vacation or 6th day after returning from vacation?

    I assumed that I will be paid for the 4 weeks of notice that employer waived but they have gotten back to me saying that they do not have any obligation to pay me.

    They're probably using some technicality that since you're visa expired on ~28 July, there's no way you could serve your notice period … hence no pay.

    Is it legal? Probably not.

    What are you going to do about it, if you're getting deported soon anyway?

    •  

      Thank you so much for your comment.

      6th day after coming back from vacation.
      I have 35 days to leave the country so I can and able to serve my notice period.
      Not deported as I'm willingly withdrawing my application but will be leaving in few weeks.
      I'm just confused as I was expecting to be paid out of my notice.

      I'll be filing FWO, move forward to claim lost wages.
      Since is not a deportation and I am in here to work legally I can pursue any legal actions and will be able to hire a representative to fight the case.
      I just wanted to know that what they are doing is not right.

      • +5 votes

        6th day after coming back from vacation.

        In the original post, you said you were gone for 6 days? Where did you go? Seems like you abandoned your position.

        I have 35 days to leave the country so I can and able to serve my notice period.

        I don't think you can work in those 35 days. It's to get your affairs in order. Your visa expired on 28th July, so that's when you should've stopped working.

        I'll be filing FWO, move forward to claim lost wages.

        Your former employer will just drag out the case for 35 days … then you'll be gone and can't defend your claim.

        and will be able to hire a representative to fight the case.

        Just see how quickly your hired representative will chew up your claim for 4 weeks pay. I'd guess about 2 days and 3 emails.

        I just wanted to know that what they are doing is not right.

        Of course it's not right. I mean they jerked you around with filing your visa application, then they fired you when you resigned and now they wont pay you what you're probably entitled too … but there's probably not much you can do.

        You're much better off naming and shaming the employer, so other innocent people don't get suckered by them. The only way they'll learn is when they have to hire expensive local labor because they've alienated all the foreign workers.

        • +5 votes

          You're much better off naming and shaming the employer,

          Op, make sure you contact a solicitor before doing this. You may find yourself on the other side of a lawsuit.

        •  

          Hi,
          Thank you for detailed comment.
          I was in the city meeting with immigration agents trying to work out other visa application to let me stay in Australia for the said 6 days.
          I am told that I can work for that 35 days as the visa allows my working rights.
          It is one of the best restaurant in Australia and in the world I am just confused as to why they would do this.
          I have file fairwork inquiry.
          If I have to enter the country under tourist visa to see it through, I will.
          I just feel very upset they would jerk me aroun like this.

        • +2 votes

          @soapy00:

          I was in the city meeting with immigration agents trying to work out other visa application to let me stay in Australia for the said 6 days.

          Was it sanctioned leave or did you abandon your job? Why did it take 6 days? Surely it couldn't take 6 days to meet with immigration agents …

          I am told that I can work for that 35 days as the visa allows my working rights.

          I'm not an immigration agent, but it doesn't sound right that you can work for 35 days after your visa expired. I would expect the 35 days is if your employer terminates you before your visa expires … but even then you can only work for the said employer, so I'm not sure what 'working rights' gets you in the 35 days.

          It is one of the best restaurant in Australia and in the world I am just confused as to why they would do this.

          Ah - that's explains it. Best means they charge their customers a lot. Doesn't mean best employers.

          If I have to enter the country under tourist visa to see it through, I will.

          Good luck with that. One round-trip out of Australia to change your visa will chew up your 4 weeks pay. Just focus on getting another job, so you can stay.

        • +1 vote

          @whooah1979:

          Op, make sure you contact a solicitor before doing this. You may find yourself on the other side of a lawsuit.

          Lol, what do you think a solicitor is going to tell him?

          On the flip side, he's probably not the first victim of this employer, so it'l be difficult to identify him.

        •  

          @sp00ker:
          Meeting immigration agents weren't that difficult but since I had very few choices of othe rvisa application,
          I had to go to few universities and certified education facilities, meet with registration to find possibilities of me attaining letter of acceptance or offer in time.
          I may lodge a student visa since I have a partner here, we haven't been together long enough on passer so may transfer to student visa while we build stronger case for partnership to be aproved.
          Reason I wanted to know if they are legally liable to pay me is so that I file FWO and stay on it.
          Seeing it through, as far as time is concerned is not a problem.
          I just want what is mine but I understand that 6 days could make it or break it as they may consider it to be me abandoning the post.
          Thank you so much for clarification:
          It really means a lot to have 3rd person perspective who understand the system better than me.

        • +1 vote

          @sp00ker:
          Op has disclosed enough information on a public forum that would allow the company's hr to identify op in about two min.

        • +2 votes

          @whooah1979:

          Op has disclosed enough information that would allow the company's hr to identify op in about two min.

          Sure … so naming and shaming in this thread would be silly … but there's plenty of other forums and restaurant review sites around.

        • +3 votes

          @soapy00: Back in 2000, the company I was working for, decided to let me go. They owed me 1 month salary. I had to decide to wait for them to eventually give me the one month or settle for 1/2. I got 1/2.
          But I had another company having my back ( they contracted me to them ), and their lawyers arranged the deal.
          Not fair. But this is a case where "Sh** happens"

          if i were you, i would focus on ho to stay here, and then follow up on them on your missing salary.

  • +4 votes
    • Employers are also obliged to pay the reasonable repatriation costs of the employee and family members if requested to do so.
    • Employers are also liable for costs of detection and removal of 457 visa holders who overstay their visa.
    • Sponsors who are found not to not to have met these obligations can be subject to significant fines and sanctions, including cancellation of sponsorship approval and a bar from future sponsorship approval.

    Standard notice periods do apply to you, they are absolutely liable to pay you.
    https://www.fairwork.gov.au/how-we-will-help/templates-and-g...

    Your employer also has much bigger liabilities to the government and to pay to send ya back to where ya came from!
    An easy way to screw them over is to not go back and over stay. But, that will screw you from coming back and entering many other countries even for a holiday.

    •  

      An easy way to screw them over is to not go back and over stay.

      This is also one of the easiest ways to get banned from entering Australia again. Is it worth it?

    •  

      I wasn't approved for the visa as nomination was dropped while on bridging visa.
      So unfortunately I do not think I can really rely on the benefit however they did intentionally put down wrong hours on employment contract in return of them paying for my application which I understand is illegal.

  • +1 vote

    After 6 business day I have handed in my written resignation with 4 weeks notice.

    What did you do during these 6 days? Were you working? Did you take leave? Was this leave approved?

    This is important as your employer can argue you abandoned your job which may absolve them of your work contract. Here is a little info: http://www.fairworkcentre.com.au/newsblog/Employer-Tips/Aban...

    •  

      I took a leave and I have emails to prove that he understands that I was taking a personal leave to set my affairs in order.
      I also have proof that he avoided my emails regarding their intentions to continue my employment until later that week.

      • +1 vote

        Was it approved annual leave? Understanding you're taking leave and approving you taking leave are two very different situations.

        •  

          Neither party clarified which leave it would be under as they force employees to take annual leave at the same time with everyone by closing the restaurant. The 21 days that we were closed for used up all my annual leave and I assumed that 6 days I took off would be under 10 personal leave that I have under my contract.
          I emailed later to clarify that I understood it to be under 10 personal leave as I had no warning regarding visa being pulled.
          In which he replied he understood.
          So I suppose that could be of a grey area.
          But by no means I was awol without any line of communication.

        • +6 votes

          @soapy00: You assume? Personal leave is for medical sickness or caring for sick immediate family. Not for you to take 6 days and meet with migration agents.

        • +1 vote

          @soapy00: I assumed that 6 days I took off would be under 10 personal leave that I have under my contract

          Sorry to say but that's a very bad assumption. Personal leave is granted at the discretion of your employer. Your contract will stipulate the amount you can accrue, it won't stipulate that you can take it when you like without approval.

          But by no means I was awol without any line of communication.

          Unfortunately that doesn't matter. You don't have to be AWOL to abandon your position, you just need to be a 'no show' when you should be there.

          It sounds like a bit of a murky situation and I agree that the employer hasn't been great in this instance as you describe it, but I honestly don't think it's worth your time or money to pursue a payout because I don't think you'd have any chance of recouping your costs.

  • -3 votes

    Please help me out as I am very confused and in need of guidance.

    You sound like a reasonable person. So enjoy the time you have left here go home happy.

    • +3 votes

      What a shit response.

      What happens if they want to call Australia home. FFS

      • +2 votes

        The post wasn't meant as dig.

        Op has only few more weeks to left here. Would op rather spend the remaining time enjoying what australia has to give, or waste both time and resources on something that may not work out?

        •  

          it seems people overreact to everything on forums, I understood. Enjoy your time left. Go to town!

  • +5 votes

    OP, best to just see what Fair Work (or union if one is available) say, and to get your next visa in order, rather than wasting time on OzB since we're just everyday folks and not labour law specialists.

  • +5 votes

    You need to reformat your story. You are jumping back and forth and it is barely comprehensible.

    There are big pieces of missing information from your story.
    How long have you been working there for?
    What are the terms of your employment?
    Are you employed through an agency or directly?
    What industry are you in and what role were you employed for?

    All advice given without knowing the above is moot.

  • +1 vote

    OP https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-happ...

    If you got terminated, there are three options:

    find another employer to sponsor you
    apply for a different visa
    or
    depart Australia.

  • +4 votes

    I'd say just move on from this and find a better country instead… like Canada.

  •  

    Dutton is screwing our country!!
    Sorry to hear about this mess OP. I don't have any advice but I hope you sort it out soon.

  •  

    Were you terminated fairly? Employer just cannot terminate without cause as per the limited labor laws that I know about. You could take your case to Fairwork and get compensation

  • +1 vote

    If you have an employment query - seek an employment lawyer for advice or contact Fair Work Australia
    If you have an immigration query - seek an immigration lawyer/agent for advice or contact DIBP.

    I can barely understand what you have written and it is impossible to ascertain the exact situation. Like what visa were you on previously? What are your future plans? What is in your employment contract? What have you been advised? What was spoken? Don't rely on a forum to provide you with advice on a half story. Seek professional help.

  • +1 vote

    I am sorry to hear about your tough situation my friend, I do not have much knowledge about it but I would suggest you get an advice from a professional. Anyways, good luck and I hope things work out for you.

  • +1 vote

    There's always Canada mate, love it or leave it !

  •  

    I told my employer in light of new situation I must leave to find other means to stay in australia.
    No notice was given at the time nor any talk of resignation.

    So you told your employer you were leaving, but didn't give him any notice you were leaving. People do this all the time. Depending on how you worded it, and the fact that you didn't go to work for the next 6 days, suggests you had quit, and broken your contract.

    After 6 business day I have handed in my written resignation with 4 weeks notice.

    Strictly speaking, you could have given him 8 or 12 weeks notice. The employer isn't obliged to follow it. At most the employer may need to satisfy the minimum notice period as specified in your award or whatever. It may be 4 weeks, or it may not be. They can either let you work, or pay you for that time period. That's if it you have not been deemed to have abandoned your job.

    As for 6 days of missing work I told them I considered it to be my personal leave as visa problem came up without warning and I had to set my affairs in order before coming back to work which he agreed that he understands.

    Did you tell him this the day you left? or the day you tried to return? because telling the boss you had to stop working, and then returning and telling him you want the last x days considered vacation/leave/whatever isn't an acceptable argument, in my opinion.

  •  

    6 days personal leave to sort out your visa is a bit cheeky. This is for when your sick, is it not?

    This is either unpaid or annual leave

    Should always keep a couple weeks annual leave for a buffer

  • +1 vote

    457 visa the law favours the dodgy employer, you dont have much rights if they decide to cancel sponsorship, options would be to seek legal advice costing $$ and probably not worth the cost nor outcome or just find another sponsor. what type of work or skill you have?

  •  

    How long did you work there for? Are you covered by an award or enterprise agreement? Your ability to enforce a notice requirement may be dependant on the above as well as your contract… Btw does your contract say your employer has to give 4 weeks notice too?

  • +1 vote

    Sounds like you are going home to see your family!

    As said above, your best bet is to call up a union & join. I am with the amwu (boilermaker), but there will be a union for you.

    I have worked with a lot of philipinos & the amwu has had a philipino organiser come out before. They deal with this every day.

    IMO anyone who isnt in a union is an idiot.

  • +2 votes

    An alternative would be to leave now and take a couple of weeks to go and see places you haven't before leaving the country. Look at it as an opportunity.

  •  

    Were you on a 457 or you were waiting to be approved? It is a 3 step process to get the visa approved, maybe one of these failed to pass? Contracts don't usually start until the date your 457 visa is granted!

  •  

    remember, as a 457 visa holder, your sponsoring employer is responsible for any costs associated with your relocation outside of australia, if you choose to leave.

  • +1 vote

    I suggest if you want assistance from the people on this forum you will need to redraft your situation in a structured way than can be understood. There are too many unknowns and people aren't going to spend the time to go through each one. If you don't think you can improve on it you should seek the advice of a lawyer.

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