Nowhere to go: Worker claims employer 'exploited' his visa status

Says 'persistent' bullying led to forced resignation

Nowhere to go: Worker claims employer 'exploited' his visa status

The Fair Work Commission (FWC) recently dealt with a worker’s claim that his workplace conditions led to his forced resignation. The worker said that the employer was aware that he had nowhere to go due to his visa restrictions, and so, he had no choice but to stay with them until he was able to secure employment elsewhere.

On the other hand, the employer said it fulfilled its duties to investigate his workplace complaints, and despite that, he still chose to resign on his own. It argued that he even made arrangements with a new employer before he left, which debunked his claim of “forced resignation.”

The worker, Justin Kritzinger, filed a general protections dispute involving dismissal against his employer, WEG Australia Pty Ltd. Despite his resignation on October 27, 2023, Kritzinger contends that the employer's actions, such as exploiting his visa status, persistent bullying, discrimination, and victimisation, forced him to resign.

The employer disputes the application, asserting that the worker voluntarily resigned. Kritzinger was hired as an electrical engineering technical officer in Melbourne on October 17, 2022.

According to records, Kritzinger's employment started with discrepancies. Despite seeking a position in Queensland, he was offered a role in Western Australia, compelling him to relocate.

Initial tasks, including research and interactions with colleagues, reportedly led to conflicts with Spiro Fkiaras, the automation business unit manager.

‘No choice’ but to stay

The worker recalled an alleged incident where Fkiaras "reprimanded him for asking questions about the clients and trying to identify new strategies to approach [them]."

He also said that he received a subsequent call from Fkiaras "advising him that the WA business development manager was now upset that he was poking his nose into her customers."

According to the worker, he “approached the WA development manager at a later point, who clarified that Fkiaras’ representation was a lie."

Relocation to Western Australia

The worker noted that these events unfolded "within his first fortnight of being employed, which made him doubt his decision regarding his employer."

"However, due to his visa conditions and needing to be employed by his sponsor to legally stay in Australia, he said that he had no choice but to proceed with employment and relocate from Queensland to Western Australia," the worker said.

Tensions escalated, with Kritzinger raising grievances, particularly regarding a sales conference in February 2023. He reported

The employer then issued a letter confirming the discriminatory comments and a lack of support from Fkiaras, culminating in a strained work environment.

Efforts to address issues, including a trip to Melbourne and emails to HR, proved unproductive for the worker. Kritzinger argued that his concerns about his job security and treatment were left unaddressed. He then wrote his resignation notice and sent it to his employer.

acceptance of resignation but included a deduction from the final pay for expenses.

Was there forced resignation?

The FWC found that the employer was “responsive” to the worker’s workplace complaints, especially about Fkiaras. It said it corresponded with the worker multiple times to discuss the complaints and “querying why he felt unsafe.” It said that it was the worker’s choice to leave the workplace.

“It is uncontroversial that the resignation of the [worker] was clear and unambiguous–having been provided to the employer in writing,” the FWC said.

Moreover, the FWC said that “it is [also] uncontroversial that prior to resigning the [worker] had secured employment with an alternative employer and that as of 31 October 2023, his working visa would be ‘decoupled’ from [WEG Australia] and ‘coupled’ to his new employer.”

“[The worker] had held discussions with his prospective employer (current employer) prior to resigning from [WEG Australia],” it added.

Ultimately, the worker could have chosen not to resign and engage with the employer to seek outcomes in relation to his complaints, said the FWC.

“He did not do so. Instead, he chose to approach an alternative employer and secured employment and visa sponsorship with them, prior to resigning. This was his decision,” the FWC said.

Thus, the Commission found that the worker was not forced to resign. Consequently, it dismissed his dismissal claim against the employer.

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