FULL RECOMMENDATION
r-068379-ir-08/JT INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEEPCLEAN HYGIENE SOLUTIONS LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED) - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendations r-068379-ir-08/JT & r-068381-ir-08/JT.
BACKGROUND:
2. The case concerns dismissal of the two Workers, who are referred to in this Decision as Mr Z and Ms A. Both Workers are citizens of Bulgaria. While the Workers claim that the real reason for their dismissal was their trade union membership, the Company claims that the Workers were dismissed because they were ineligible for the granting of a work permit. The matters were referred to a Rights Commissioner for investigation and recommendation. On the 20th July, 2009 the Rights Commissioner issued the following Recommendations in the same terms:-
- “I have considered the submissions made by both parties. I accept that the respondent did genuinely attempt to obtain work permits for the claimant. However this is a matter for the Department of Enterprise, Trade and Employment whether somebody can obtain a work permit or not. I know from my knowledge of other cases, there has been a tightening up on the issue of work permits since the increase in unemployment in this State.
I therefore believe that the respondent had acted in good faith at all times but it was a matter for the Department at the end of the day to determine whether a permit would be issued or not. I therefore do not find the claimants claim well founded and therefore it falls”.
- “I have considered the submissions made by both parties. I accept that the respondent did genuinely attempt to obtain work permits for the claimant. However this is a matter for the Department of Enterprise, Trade and Employment whether somebody can obtain a work permit or not. I know from my knowledge of other cases, there has been a tightening up on the issue of work permits since the increase in unemployment in this State.
3. 1. Despite repeated requests to do so, the Company failed to provide the Workers with contracts of employment or work permits.
2. The Workers asked their Union to write to the Company enquiring as to the status of their work permit applications.
3.The Union is convinced that the Company dismissed the Workers following receipt of this letter from the Union.
COMPANY'S ARGUMENTS:
4. 1. The Company regretted losing the Workers as they were both hard-working employees.
2. Once the Company became aware that it would not be able to obtain work permits for the Workers it had no option but to terminate their employment, albeit very reluctantly.
3. The Company strongly rejects that there was any other reason for terminating the Workers' employment.
DECISION:
This is a claim by SIPTU arising from the dismissal of two of its members who are referred to in this Decision as Mr Z and Ms A. Both workers are citizens of Bulgaria.
Mr Z was employed as a cleaner between 14th September 2007 and 3rd July 2008 when he was dismissed. Ms A was employed on 15th October 2007, in a similar capacity, and was dismissed on 25th July 2008. The Employer contends that the reason for both dismissals was that the Claimants were ineligible for the granting of a work permit. The Union contends that the real or dominant reason for the dismissals was the Claimants' trade union membership.
The Court was told that the Employer had maintained liaison with the Department of Enterprise, Trade and Employment in relation to obtaining work permits for a number of employees, including the Claimants, in respect of whom such permits were required. While no formal application had been made in respect of the Claimants, according to the Employer, the Department had indicated that there was little prospect of the Claimants meeting the criteria for the granting of a work permit.
By letter dated 22nd May 2008 SIPTU, on behalf of the Claimants, wrote to the Managing Director of the Employer asserting that he had informed the Claimants that the Employer would obtain work permits for them. The Union went on to enquire as to when the permits would be provided to its members. The Employer did not reply to that letter.
It is clear from the facts of the case that Mr Z was dismissed on 3rd July 2008 for alleged misconduct. Ms A was dismissed some three weeks later. At no stage prior to their dismissal were either of the Claimants or their Trade Union advised of any difficulty in obtaining work permits nor were they advised that they could make personal applications for work permits.
These cases were referred to a Rights Commissioner under the Industrial Relations Act 1969 and are before the Court by way of appeals from the Recommendations of the Rights Commissioner. Hence the Court is dealing with the matters by application of the principles of good industrial relations practice. In its approach to the appeals the Court considered if the Claimants were treated fairly by their Employer by the standard of reasonableness that could be expected of an employer applying the principles of good employment practice.
By application of that standard it appears to the Court that the Claimants were treated unfairly when the Employer failed to inform them or their Trade Union of the difficulties in obtaining work permits, which are now relied upon, and that the Claimants’ continued employment was in jeopardy in consequence. This is particularly so in the light of the Union’s letter of 22nd May 2008. Had the Union been so advised at that time it could have made representations on the Claimants’ behalf and they could have been advised of their entitlement to make applications personally. Moreover, it is clear that, in the case of Mr Z, his dismissal was for alleged misconduct without any form of procedural fairness and yet the Employer sought to defend the dismissal on the grounds that he did not have a work permit. It is also clear that the Employer employed the Claimants (Mr Z and Ms A) for periods of ten months and nine months, respectively, without difficulty.
Accordingly, the Court is satisfied that the Recommendations of the Rights Commissioner cannot stand. It is the decision of the Court that the Recommendations of the Rights Commissioner be set aside and that each of the Claimants be paid compensation of €4,500 in respect of this unfair treatment found to have occurred.
Signed on behalf of the Labour Court
Kevin Duffy
9th November, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.