Was Costco right to dismiss worker over visa status?

An NSW Costco employee who was sacked for working while on an invalid visa has had his unfair dismissal thrown out by the Fair Work Commission. The employee continued working for two days after his visa expired, despite company policy prohibiting employment without a valid visa.

This case – Misheck Muza v Costco Wholesale Australia Pty Ltd [2025] – is a stark reminder to employees on visas: failing to comply with visa conditions or allowing a visa to lapse can put your job at serious risk.

But what happens when an employer misinterprets visa conditions and dismisses a worker unfairly? In this article, we will also look at the case of a Melbourne worker who experienced this.

Costco worker fired for allowing visa to lapse

Foreign national Misheck Muza began working for Costco in August 2021 as a fresh supervisor in the company’s warehouse in Lake Macquarie, New South Wals. At the time of his dismissal, he was employed as an inventory control specialist.

Over the course of his time at Costco, Mr. Muza had been on several bridging visas. His employment contract outlined that he needed to provide evidence of his right to work in Australia. And if he could not, his employment “may be terminated…with immediate effect.”

Continued to work after visa expired

Mr Muza’s troubles began on 6 August 2024. This was when Costco’s human resources department discovered that his bridging visa was due to expire in eight days’ time. Costco’s policy did not allow any of its employees to work without a visa. In the previous few years, the company had dismissed three workers whose visas had expired.

A Costco manager emailed Mr. Muza, asking him to provide details of his renewed visa. He replied saying that he would forward it when he received it that week. The next day, Mr. Muza applied to renew his visa. When his current visa expired on 14 August 2024, he continued to work for the next few days. Costa claimed to the Fair Work Commission that Mr. Muza was aware that he was working on an expired visa.

Took sick leave and asked to supply visa

The situation escalated when, on 19 August 2024, Mr. Muza called in sick to work, citing a “nasty cold.” A few hours later, a Costco manager emailed him requesting his updated visa. Mr. Muza replied that he was “not sure why” his visa had not automatically updated. He said it was the first time he had to “chase” an update to a visa and would notify Costco of his progress in that regard.

The next day, a Costo manager emailed Mr. Muza asking if he was well enough to return to work. He replied saying that he should not work given his visa had expired. The manager then asked Mr. Muza if he had informed anyone about his visa expiration on 14 August 2024. Mr. Muza claimed that his managers were aware of the expiration at the time.

Asked for job back when visa was updated

Costco was not sure how long Mr. Muza’s visa application would take, so it decided to stand him down without pay. The company sent him a show cause letter on 20 August 2024. This letter outlined Costco’s intention to dismiss him because he no longer had the legal right to work in Australia.

Nine days later, Mr. Muza responded to the letter. He requested additional time to resolve his visa issues. He also asked Costco if it could transfer him to a role in Canada or the United States, rather than sacking him. However, on 30 August 2024, Costco dismissed Mr. Muza without notice or payment in lieu of notice.

On September 3, Mr. Muza emailed Costco saying that he had “engaged” the Fair Work Commission to determine if his termination was unfair. He said that not being paid in lieu for notice “may be a bit harsh.” In the same email, Mr. Muza asked Costco for his job back. This was because his “visa rights were emailed back to [him] yesterday.”

Mr. Muza said that he felt it was “heavy handed” for Costco not to wait for the government department to update his visa.

Argued Costco rushed to ‘callously’ fire him

In his unfair dismissal claim, Mr. Muza argued to the Fair Work Commission that there was no valid reason for his sacking. This was because he had done all he could to get his visa updated. He also said that Costco knew his visa would be approved the day after his termination. Mr. Muza also argued that the company should have told him he was fired “face to face” and that doing so via email was “callous.” He claimed Costco rushed to fire him; despite the fact he had never previously received a written warning.

Costco, on the other hand, argued to the Fair Work Commission that it had a valid reason to fire Mr. Muza as he did not have the legal right to work in Australia. It highlighted that the company’s enterprise agreement required employees to maintain a valid visa.

Costco also pointed to the fact that Mr. Muza had attended work for two days while his visa was invalid. It said that this violated his employment contract and constituted “willful and deliberate” serious misconduct.

Fair Work found worker violated contract

At Mr. Muza’s unfair dismissal hearing, the Fair Work Commission concluded that Mr. Muza’s lack of a valid work visa gave Costco a valid reason to fire him. His decision to work for two days without a valid visa also gave the company a valid reason. The Commission noted the contractual obligation on Mr. Muza to provide evidence of his right to work in Australia. He was also required to do so under the Migration Act 1958 (Cth).  

Secondly, the Commission examined the procedural fairness of the dismissal. It determined that Mr. Muza had been given ample opportunity to respond to the reasons for his sacking, both in writing and in person. The Commission rejected Mr. Muza’s argument that his termination should have been communicated face-to-face. It said that firing him over email did not render it unfair.

Dismissal deemed fair

The Fair Work Commission also addressed the issue of notice. It found that Costco was not required to provide notice or payment in lieu of notice. This was because Mr. Muza was unable to legally work at the time of his dismissal. The Commission also considered Mr. Muza’s argument that the company rushed to fire him before the visa could be updated. It concluded that it was Mr. Muza’s fault for the delay in his application being processed, which was caused by his own “inaction.”

The Fair Work Commission ultimately rejected Mr. Muza’s unfair dismissal application, concluding that the dismissal was not unfair. It emphasized the importance of employees adhering to their contractual obligations and legal requirements regarding work visas. The Commission noted that if Costco continued to employ Mr. Muza after his visa expired, it could have been in breach of the Migration Act (Cth).

Aged care worker unfairly dismissed for breaching visa conditions

Another Fair Work Commission case that involved a worker fired for visa issues is Ms Preeti Devi v Doutta Galla Aged Services Limited [2018]. Preeti Devi began working for Doutta Galla Aged Services in July 2025 as a part-time food services assistant. She was in Australia on a student visa while studying nursing. She worked at an aged care facility in Footscray, Melbourne.

Under the conditions of her visa, Ms. Devi could not work more than 40 hours per fortnight, except during designated semester breaks. Her employment contract specifically stated that she could not work more than 20 hours per week.

The contract also said that Ms. Devi could not accept nor request more than 20 hours per week. She was also required to tell Doutta Galla Aged Services if she had been asked to work more than 20 hours.

Alleged to have breached visa conditions on six occasions

In August 2017, Doutta Galla Aged Services’ HR manager emailed Ms. Devi, alleging that she had worked more than 40 hours per fortnight on six occasions. She was allowed to continue working, but was asked to attend a meeting where she could respond to the allegations. She was warned that she should make sure not to work more than 40 hours per fortnight.

These allegations, however, were later dismissed by Doutta Galla Aged Services. This was because it found that Ms. Devi had not violated her student visa as her university classes were not in session at the time of these six instances.

Suspended after additional allegation

However, on 21 November 2017, the HR manager contacted Ms. Devi again alleging that she had breached her student visa. The manager alleged that she had exceeded her permitted hours by working an additional 1.91 hours on 2 November 2017. This meant that she worked more than 40 hours in that fortnight. As a result, the employer suspended her indefinitely without pay.

Ms. Devi was later issued a show cause letter from the HR department. She responded to the letter saying that she had worked excess hours because she likely forgot to clock out on time. Ms. Devi claimed that she may have been chatting with residents or assisting a patient who was waiting for an ambulance.

Worker had not breached visa

However, Doutta Galla Aged Services did not accept Ms. Devi’s explanations and maintained that she had violated her visa conditions and employment contract. The company told her that she could not work until the Department of Immigration and Border Protection confirmed her right to work in writing.

Ms. Devi contacted the Department to clarify her visa status. She was told she had not breached her visa conditions and that her visa was valid. The Department explained that a visa would only be cancelled due to a consistent pattern of deliberate and intentional breaches. It also told Ms. Devi that it would not provide written confirmation of her visa status as it was not its role to do so.

Dismissed despite not violating visa

Ms Devi relayed this information to her Doutta Galla Aged Services. However, the employer maintained its position. It refused her to return to work without written confirmation from the Department, asserting that she was an “illegal worker.”

As a result, Ms Devi concluded that she had been effectively sacked and subsequently lodged an unfair dismissal claim with the Fair Work Commission. The employer, however, denied that a dismissal had occurred. It argued that Ms Devi had violated her legal and contractual obligations.

Employer breached employment contract

At Ms. Devi’s unfair dismissal hearing, the Fair Work Commission accepted Ms. Devi’s explanations for exceeding the 40-hour limit. It said that her violation of her visa conditions and employment contract was a “trifling matter.”

The Commission took a harder line with Doutta Galla Aged Services, however. It found that the organization had unlawfully suspended Ms. Devi without pay. The Commission emphasized that employers do not have a common law right to suspend employees without pay.

Suspending Ms. Devi without pay was a violation of her employment contract. Therefore, Ms. Devi was entitled to conclude that she had been dismissed at the initiative of the employer. This conclusion was backed up by the Commission.

Procedural deficiencies found

The Fair Work Commission also noted that Doutta Galla Aged Services had not proven the allegations it made against Ms. Devi. She was not given a full and fair opportunity to address all allegations. The organization’s insistence that she “self-report” a potential visa breach to the government was deemed unreasonable.

The Commission found that there was no valid reason for dismissal. It determined that the employer had incorrectly concluded that Ms Devi was an “illegal worker.” A single, unintended instance of exceeding visa work hours did not automatically result in the cancellation of a visa.

Ms. Devi had retained the legal right to work in Australia. Doutta Galla Aged Services’ belief to the contrary was deemed to be legally and factually incorrect. The Commission also found that the employer’s insistence on obtaining written confirmation from the Department of Immigration and Border Protection was unreasonable.

The Fair Work Commission therefore ruled that Ms. Devi had been unfairly dismissed. It set a further hearing to determine the remedy.

Conclusion to: Unfair dismissal or justified? When visa issues lead to job loss

If you’ve been sacked due to visa issues, you may still have options. At A Whole New Approach, we specialize in helping employees fight unfair dismissals and understand their workplace rights. Our expert team has helped thousands of workers challenge wrongful terminations and secure fair outcomes. Note: We are not migration lawyers, we are leading workplace advisors, commentators and influencers. AWNA are fiercely independent and the publishers of some 600 articles. We have been helping / advising the working public for the last 25 years.

We offer a no win, no fee service and operate in all Australian states and territories. Act fast, as you only have 21 days from the day of your sacking to make an unfair dismissal or general protections claim.

Call us today on 1300 333 666 for a free, confidential discussion about your case.

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