TAS Workers Compensation - Termination of 457 Visa?

[Cris Merina]

Hi,
I was a welder under 457 visa. In 2011 I have a workplace accident. On May 2012 the Neurosurgeon doctor said I need a C4-C7 (ACDF) which was denied by the insurer. June 2012 my lawyer put the case on the workers compensation tribunal and we won. I had my operation last May 23 2014. The doctor said due to my operation I cannot come back to my job as a welder. As of now I am still on my recovery period when I was terminated due to my visa expiration. I am on the process of applying for medical treatment visa to continue my rehabilitation until the independent doctor can evaluate my impairment.

Is it legal under Australian immigration law to terminate a 457 worker for being absent in the workplace while undergoing medical treatment due to a work related injury?

 

[Sarah J]

Hi Cris,

1. It is not illegal for the Immigration Department to terminate your visa on the ground that you are no longer sponsored by your nominated employer.

2. It may be illegal for your employer to terminate you or decide to stop sponsoring you during this time of recovery. I suggest contacting the Fair Work Ombudsman (different from the Fair Work Commission) and the Fair Work Commission and enquiring about your rights under worker's compensation and whether the employer is permitted to terminate you during this time. You may be looking at unfair dismissal.

3. Another alternative is that the Immigration Department cancelled your visa on grounds other than termination. Perhaps there is a requirement on your visa that you be "working" at the place of employment and cannot be absent for more than X period or that you cannot stop receiving paycheques from employer for X period of time, otherwise the visa automatically terminates. As I am not familiar with immigration law, I suggest speaking with the Immigration Department and enquiring as to the exact reason why your visa was terminated (it should also be on the letter they issue you informing you of the termination).

 

[Cris Merina]

Hi Cris,

1. It is not illegal for the Immigration Department to terminate your visa on the ground that you are no longer sponsored by your nominated employer.

2. It may be illegal for your employer to terminate you or decide to stop sponsoring you during this time of recovery. I suggest contacting the Fair Work Ombudsman (different from the Fair Work Commission) and the Fair Work Commission and enquiring about your rights under worker's compensation and whether the employer is permitted to terminate you during this time. You may be looking at unfair dismissal.

3. Another alternative is that the Immigration Department cancelled your visa on grounds other than termination. Perhaps there is a requirement on your visa that you be "working" at the place of employment and cannot be absent for more than X period or that you cannot stop receiving paycheques from employer for X period of time, otherwise the visa automatically terminates. As I am not familiar with immigration law, I suggest speaking with the Immigration Department and enquiring as to the exact reason why your visa was terminated (it should also be on the letter they issue you informing you of the termination).

 

[Cris Merina]

Hi Sarahj,

Thanks for your time in replying my question.

I have been to FWO they said my case is unique and there is no such case that was filed on FWC office. They have advice me to go to immigration and I did went but they can't give me an answer they told me to consult a migration lawyer.

I tried to seek advice from Work Assist and I heard the same thing my case is unique. He said talk to your workers compensation lawyer who handled your case. I have already won the case from workers compensation tribunal that's why i had my operation. The decision of the court is for implementation, so i need to reach the full maximum medical improvement before I can be assessment by independent doctor for my impairment.

I have also observed that the respond to my situation is unique because my case involves the expertise of migration lawyer and workers compensation lawyer and the cost impact must be consider.

 

[Sarah J]

Hi Cris,

Unfortunately, they are correct. Your case is not straight forward, so you may need to seek an immigration lawyer for advice. Sometimes, there are no easier/cheaper options but see a lawyer. As, again this is quite complicated and non-straight forward matter, they will most likely need to consult cases and law and build your case together.

 

[Cris Merina]

I asked my lawyer to do the consultation in my behalf with an immigration lawyer because they can easily understand each other. I have twice consulted an immigration lawyer and ask the legal procedure of terminating a 457 visa worker .I gave those information to my lawyer. He has already prepared an application for unfair dismissal ready for submission on Monday .I will just ask him the merit of my case and the cost before I sign it. Again thank for your time Sarahj.

I have done all the possible and I just leave the impossible unto him.

 

[Sarah J]

Best of luck with it all. Keep us updated on the progress/outcome!