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Source: Employment New Zealand

The Employment Relations Authority has ordered Restaurant Brands Ltd to pay a migrant employee $18,000 in compensation.

A migrant employee was employed by Restaurant Brands Limited (RBL) on a permanent basis as an Assistant Restaurant General Manager. When the employee started his role, his open work visa was due to expire shortly. RBL at that time assisted him to obtain a two-year employer assisted work visa. The employee said he expected that his employer would continue to assist him with visa matters.

Some months before his work visa expired, the employee emailed the employer asking for documentation to support his work visa application. The employer responded some weeks later, saying that the employee would need a valid work visa to continue his employment. The email made it clear that his employment would end on the expiry date of his visa unless he provided evidence of a new visa. Shortly afterwards, the employer “opened” his position for applications. The employee applied for the position, thinking it was a formality.

Three weeks before the visa’s expiry date, the employer phoned the employee to tell him that his job application was unsuccessful, and as a result, they could not support his application for a new visa. They told him that a New Zealand citizen had been appointed to the position. The employee took the phone call as notice of dismissal.

The day before the employee’s visa was due to expire, the employer emailed him to inform him that if he did not provide a copy of a visa before the end of the next day, his employment would be terminated.

The employee raised a personal grievance to the Employment Relations Authority (the Authority), claiming that he was unjustifiably disadvantaged because the employer failed to assist with his visa application and appointed another person to his position. RBL said they did not assist with the visa because they thought the employee had no prospect of success.

The Authority found that the employer unjustifiably dismissed the employee by replacing him before the expiry of his visa. Also, the Authority found the employer unjustifiably disadvantaged the employee by:

  • failing to assist the employee with a visa while giving the impression that they were going to assist him
  • not being open and communicative with the employee about the fact they were actively seeking to replace the employee because they believed he would not be successful in getting a visa
  • second-guessing the outcome of the application of a visa application and predetermining that the employee would not want to waste money on it.

The Authority ordered the employer to pay the employee $18,000 including compensation for humiliation, loss of dignity, and injury to feelings. The Authority did not award lost wages as the employee did not have a visa that would have allowed him to work after his dismissal.