30 Mar I Need To Leave My Employer – What Is Going To Happen?
One very common question that I receive from Subclass 457 visa holders is: I need to leave my employer – what is going to happen?
You may want or need to leave your employer for a number of different reasons. The below are just some examples that I have encountered:
1. My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
2. My employer isn’t paying me the salary that was specified in my contract and/or visa application
3. The ownership of my employing company has changed – I do not get along with the new management / owner
4. I’ve been offered a role with another company and I want to take this
5. My employer no longer needs my services and they have terminated my employment
The events that may occur following the termination of your employment does depend on the visa that you hold. In this post, I will outline the various consequences that may result when you end your employment.
457 visa holders
If you want to change employers
Firstly, you need to ensure that your prospective employer is eligible to sponsor you for a 457 visa. This generally means that they need to hold Standard Business Sponsorship and that this sponsorship is valid (or that they are eligible and willing to apply for this). Your prospective employer will need to lodge a 457 nomination application and have this approved before you can start employment with them.
Changing employers and completing current employment obligations
As a 457 visa holder, you can only work for your sponsoring employer and in your approved role.
The exception to this is when you are changing your employer and 457 visa sponsor. Even after the 457 nomination application for your new employer has been approved and your sponsorship has changed to this new employer, you can continue to work for your former employer and sponsor to ‘fulfill a requirement to give notice of termination of employment’.
Basically, you are allowed to fulfill the terms of your employment contract and serve out any required notice period.
If you end your employment with your sponsor (or if your sponsor terminates your employment)
Your 457 visa is subject to condition 8107 – this condition requires you to remain employed in your nominated role with your sponsor. If your employment ceases, then your employer is obligated to notify the Department.
If more than 90 days has passed since your last date of employment, then you are considered to be in breach of condition 8107 and the Department may issue you with a Notice of Intention to Consider Cancellation. If you intend to lodge another visa application, then you can discuss this matter with the Department and see if they can give you a little extra time to prepare and finalise the application (evidence supporting your claim that you will be lodging a genuine application may help you case).
If your employer notifies the Department that you have ended your employment and you are outside of Australia, then the Department can cancel your 457 visa without notifying you.
Covering the cost of your flight to leave Australia
Once you have ceased employment, you can make a written request to your former employer and request that they cover the reasonable cost of your departure. Your former employer is obligated to cover this cost if it receives such a request.