FWC upholds dismissal of employee with expired visa

The Fair Work Commission (Commission) recently decided in favour of an employer who dismissed an employee who continued to work on an expired visa, despite the renewed visa arriving within days of the employee’s dismissal.

Key facts

Mr Muza had been employed with Costco since 2021 and was engaged as an Inventory Control Specialist at the time of his dismissal. Mr Muza was on a bridging visa that expired on 14 August 2024. Mr Muza was engaged pursuant to an employment contract that expressly required him to provide evidence of his right to work in Australia.

Costco’s Director of Human Resources first made Mr Muza aware of the upcoming expiration of his visa on 6 August 2024. In his response, Mr Muza assured the Director of Human Resources that he was expecting to receive a new visa that same week. Despite knowing that his entitlement to work in Australia ceased on 14 August 2024, Mr Muza continued to attend work on 15 and 16 August 2024 while ineligible to work.

It wasn’t until 19 August 2024, when pressed by his employer, that Mr Muza advised of his visa status.

Dismissal process

On 20 August 2024, Mr Muza was placed on unpaid stand down and provided a show cause letter to notify him that Costco had made a preliminary decision to terminate his employment because he lacked a right to work in Australia. In his response during a meeting held on 29 August 2024, Mr Muza requested additional time to renew his visa.

On 30 August 2024, Costco issued a letter to Mr Muza confirming termination effective immediately, citing that his request for additional time was rejected because it could not be certain how long it would take him to obtain a new visa.

However, just days later, on 3 September 2024 Mr Muza’s visa was approved. Despite this, Costco elected to uphold his dismissal. Mr Muza proceed to lodge an unfair dismissal claim against Costco with the Commission.

Unfair dismissal claim

In his claim, Mr Muza alleged that his dismissal was unfair on the basis that Costco moved to terminate his employment with undue haste, as his visa was approved only days after his dismissal, and that the decision to inform him of his termination via email was unnecessarily harsh. Mr Muza also claimed that he was denied a support person, although this was found by the Commission to be untrue.

However, the Commission found Mr Muza’s failure to disclose his visa status and then working unlawfully constituted a breach of his employment contract.

In upholding Costco’s decision to terminate Mr Muza, Deputy President Bryce Cross considered that continuing to employ Mr Muza past his visa expiry would likely have been in breach of the Migration Act 1958 (Cth), stating that “whatever delay Mr Muza suffered was caused by his own inaction”.

The Commission ultimately found that it would have been incorrect to conclude that Costco had acted ‘hastily’ in terminating Mr Muza, considering they had waited 16 days (from the visa expiry date), and had continued to request information from Mr Muza, before making the decision to terminate his employment.

Key takeaways for employers

This decision highlights the importance of carrying out a dismissal in a procedurally fair manner, even when the reason for the dismissal is valid and justified.

For businesses that regularly hire employees on visas, it is recommended that employment contracts include explicit conditions about maintaining valid working rights in Australia.

Should a business seek to dismiss an employee for failing to maintain valid working rights, employers must ensure affected employees are clearly notified, given a reasonable opportunity to respond, and treated fairly throughout the termination process.

If you’re considering dismissing an employee with an expired visa and require guidance and support to remain compliant, contact our Workplace Relations Hotline on 1800 RETAIL (738 245) for a confidential conversation.

Misheck Muza v Costco Wholesale Australia Pty Ltd [2025] FWC 252