EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD417/2014
WT64/2014
CLAIMS OF:
Cenira Fernandes Dasilva Morais -Claimant
against
Neylons Maintenance Services Limited T/A Neylons Facilities And Management Services -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. P. Pierson
Mr. N. Dowling
heard this claim at Mullingar on 7th April 2015
Representation:
Claimant: Mr. Gerard Gallagher, Gallagher & Co. Solicitors, 5 Custume Place, Athlone, Co Westmeath
Respondent: Mr. A. Purdy solicitor Purdy Fitzgerald, Solicitors, 14 Bachelors Walk, Dublin 1
Background:
The Claimant is a Brazilian and was employed as a general operative/ cleaning assistant in a school. The Respondent is a management company that employs staff for cleaning and maintenance jobs for various clients. The Claimant contends that she was unfairly dismissed because the employer did not apply for a work permit for her. The Claimant was initially employed by a different employer but became an employee of the Respondent on foot of a transfer of undertaking in 2008. The claimant continued to work in the same capacity has she had previously until the school she provided cleaning services to requested each employee to engage in the Garda vetting process which was necessary as she worked where minors attended school. MS gave evidence on behalf of the Respondent that the Claimant was given a Garda vetting form but never returned it. It transpired at that juncture that the Claimant had no work permit and therefore could not complete the form. The Respondent wrote to the Claimant in late 2013 seeking a meeting with her to discuss her ongoing employment with the company and contended that the respondent offered to help get her a permit. No permit was obtained by the Claimant. In the circumstances the witness stated that the Respondent could not maintain her employment and therefore dismissed her by letter dated 2nd December 2013. It was argued on behalf of the Respondent that the employer has no obligation to obtain a work permit on behalf of an employee pursuant to the provisions of the Employment Permits Act 2006. When queried by the Tribunal about whether or not the Respondent knew that the Claimant had been working for the company since 2008 without a work permit the witness maintained that the Respondent was not aware of that fact.
The Tribunal heard evidence from the Claimant. She clarified to the Tribunal that she had commenced working directly with the school in 2001 and then became employed by the Respondent on foot of a transfer of undertaking in 2008. The Claimant admitted that she has not had a work permit since commencing employment in the school in 2001 either with the previous employer or with the Respondent. Prior to 2001 she worked in a restaurant in Roscommon at which stage she did have a work permit. She accepted that she did not have a work permit in September 2013 when she was initially approached with the Garda vetting form.. She accepted that she met with the agents of the Respondent in December with her daughter in law who translated for her. She stated in evidence that she told the employer that she did not have a work permit prior to September 2013. She thought that the Respondent would apply for the work permit for her so she could continue working with them.
Determination:
The Tribunal considered the evidence of both parties carefully. Although not opened formally during the course of the hearing the Tribunal are bound by the decision of Mr Justice Hogan in Hussain v The Labour Court and Younis [2012] 2 IR 704 which states, inter alia, that a foreign national may not work in the jurisdiction without a valid work permit. Without a valid work permit a foreign national, who is subject to the Employment Permits Act 2006, does not have a legal enforceable contract of employment. In the circumstances without a valid work permit such foreign national cannot have the benefit of the provisions of the Unfair Dismissals Acts, 1977 to 2007 as such an employee is effectively ‘illegal’ in the absence of an appropriate permit.
Unfortunately this is the position the Claimant herein finds herself. At the time of dismissal, which is not in dispute, she did not have a valid work permit therefore cannot seek relief pursuant to the Unfair Dismissals Acts. The Tribunal prefers the evidence of the Claimant that she told someone in the Respondent company that she did not have a work permit. It is quite remarkable that the Claimant had been working with the Respondent since 2008 and at no stage was this issue addressed. Furthermore, it was not incumbent on the Claimant alone to seek a permit – the Respondent could, both pre and post dismissal, have made an attempt to assist the Claimant in seeking a permit. Section 4 of the Employment Permits Act 2006 allows an employer do this on behalf of a proposed employee.
In all of the circumstances however the Claimant is not an employee for the purposes of the Unfair Dismissals Act, 1997 to 2007 as she did not hold a valid work permit at the time of dismissal therefore the claim must fail for want of jurisdiction. Furthermore, the claim under the Organisation of Working Time Act, 1997 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)