Lessons for employers from a visa applicant’s unfair termination

By Heather Collins

9 March 2021

As immigration and visa specialists, we recently provided independent expert witness advice to the Employment Relations Authority on the case of Dilshaad Gill v Restaurant Brands Limited (RBL), where complex communications issues led to a finding of unjustified dismissal.

Applicant Mr Gill was employed by respondent RBL on a permanent basis in Johnsonville, Wellington from 2017 to 2019 as an Assistant Restaurant General Manager. RBL currently operates and owns the master franchising rights for the Carl’s Jr., KFC, Pizza Hut, and Taco Bell brands in New Zealand.

Given his work visa would expire in March 2019, Mr Gill emailed RBL in November 2018 to request documents in support of an essential skills work visa application. Mr Gill was under the belief that RBL would continue to support him in respect of his visa application and his employment: communications led Mr Gill to believe that RBL were following a process to assist him. In February, however, Mr Gill learned that he was unsuccessful in the recruitment round undertaken for his role. He was advised by RBL that his job was offered to a New Zealand citizen and therefore RBL could not support his application for a new work visa. Mr Gill took this as notice of his (unjust) dismissal on 14 February 2019.

It is clear from the wider details of this case that both parties had conflicting views about what they were discussing in regard to Mr Gill’s employment. Mr Gill saw himself as a permanent employee; applying for his visa with RBL’s support, and re-applying for his role, were a formality (as emails from RBL suggested). RBL, however, understood his need for a new visa but did not regard that as imposing any responsibility on them in terms of supporting his new work visa application. They believed they were obligated to appoint a New Zealand citizen if they could, hence the recruitment process.

The Authority determined the case in favour of Mr Gill and ordered RBL pay a sum of $18,000 for hurt and humiliation.

The lessons from the findings of this case are clear:

• A positive duty falls on the employer to be clear with their communications and to act in good faith (as per Section 4 of the Employment Act).

• Employers must let their staff know as early as possible that they are not intending to support visa applications (and why).

• In these circumstances, employing a replacement pre-emptively (and unfairly) dismisses a current employee from their role.
• Even if an employer believes an employee will be unsuccessful in a visa application, they are obligated to discuss the situation with the employee.

• Advertising for a position should only occur when it is certain the role will be vacated appropriately.

• It is not ethical to predetermine the outcome of a visa matter and guess the outcome. This only disadvantages employees.

• Seek visa and employment advice early to avoid financial and emotional impact.

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The laws surrounding employment and immigration move quickly, and are designed to protect both employees and employers.

Get in touch with us at Pitt & Moore Lawyers for professional advice that will give you peace of mind.

How Pitt & Moore can help

What sets us apart is that we are experts not only in employment law, but also in each step of the immigration process. This means that we can advise on all immigration/visa-related issues as well as employment issues.

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We can ensure that you receive comprehensive legal advice on all aspects applicable to your particular circumstances. Feel free to contact Elly Fleming or any other member of our Employment and Immigration team.

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.