Visa Work Rights & Unfair Dismissal: Lessons from Recent FWC Cases
To work in Australia, individuals must be Australian citizens, permanent residents, or hold a valid work visa.
Employers are legally required under the Migration Act 1958 (Cth) to ensure all employees have the right to work, or they risk facing substantial penalties.
Case 1: Visa Expired & Unfair Dismissal Claim Rejected
In Muza v Costco Wholesale Australia Pty Ltd (2025), an employee challenged his dismissal after his visa expired, claiming it was unfair. Costco, which employs many visa holders, regularly checks the visa status of its employees. When they noticed the employee’s visa was nearing expiry, they informed him, giving him time to provide an updated visa.
The employee assured the company that his new visa was on the way, but it later emerged that he only applied for it after Costco’s reminder, leading to a gap in his work rights. During this time, he continued working for two days without a valid visa, which put Costco at risk of breaching the Migration Act 1958 (Cth).
After repeatedly failing to provide proof of a renewed visa, Costco issued a show cause notice, notifying him that his employment would be terminated unless he could confirm his right to work in Australia. The employee eventually received his new visa, but Costco proceeded with the termination.
The Fair Work Commission (‘FWC’) supported Costco’s decision, highlighting that the employee’s actions led to the delay in his visa renewal. The FWC also noted that employers are obligated to comply with immigration laws and would face penalties if they employed someone without valid work rights.
In this case, the dismissal was deemed fair because the employee was unable to fulfil a fundamental requirement of his employment – having the legal right to work.
Case 2: Bridging Visa & Unfair Dismissal – Employee Wins
In Nguyen v Tech Solutions Pty Ltd (2024), the FWC found in favour of the employee. Nguyen was on a temporary work visa and applied for a new visa before his existing one expired, which automatically granted him a bridging visa with work rights until a decision was made.
However, his employer dismissed him, claiming they could not verify his visa status through the VEVO system. Despite Nguyen providing documentation from the Department of Home Affairs confirming his continued right to work, the employer did not investigate further and terminated his employment.
The FWC found that the employer acted prematurely and unfairly, as Nguyen had followed all necessary steps to maintain his work rights. The Commission stated that employers must take reasonable steps to verify an employee’s visa status, including considering evidence provided by the employee, particularly when a bridging visa is involved. The employer was ordered to compensate Nguyen for lost income.
What These Cases Mean for Employers & Employees
Employers
Employers must thoroughly check and monitor visa statuses and take appropriate action when work rights are unclear.
However, they should also fairly consider evidence provided by the employee before making termination decisions.
Employees
Employees on visas should proactively communicate with their employer about their visa status and provide relevant documentation to confirm their work rights.
The Fair Work Commission
The FWC recognises that employers have a legal obligation to ensure compliance with immigration laws but also expects them to act reasonably and fairly in verifying an employee’s visa status.
These cases highlight the importance of clear communication, diligent visa checks, and fair decision-making processes when dealing with visa work rights and unfair dismissal claims.
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Related Blog – Employment Rights for International Students & Temporary Visa Holders