PRELIMINARY DETERMINATION
EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sergiu Percuin UD771/2013
- claimant MN390/2013
Against
Hitianland Limited T/A Foodland Stores
- respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney BL
Members: Mr T. Gill
Mr T. J. Gill
heard this claim at Galway on 13th November 2014 and 4th March 2015.
Representation:
Claimant: Ms Dawn Carney, Sheehan & Co, Augustine Court, St.
Augustine St, Galway
Respondent: Mr. Michael Kinsley BL instructed by Ms Louisa McKeon, Rhatigan & Co Solicitors, Liosbaun House, Tuam Road, Galway
Preliminary Determination:
The Tribunal in this matter was required to consider as a preliminary point whether the claimant had twelve months continuous service preceding the date of dismissal as required by Section 2 of the Unfair Dismissal Acts as amended, which is a condition precedent of the Tribunal assuming jurisdiction to hear the claim.
The claimant is a Moldovian national, and is required pursuant to section 2(1) of the Employment Permits Act 2003 as amended to be in possession of a valid work permit.
“A foreign national shall not (A) enter the services of an employer in the state or (B) be in employment in the State except in accordance with an employment permit …. that is in force”.
The Claimant has provided his passport and with various stamps thereon, and same evidenced by letter dated 19th February 2015 from An Garda Siochana covering the periods;
4th November 2011 to 12th April 2012
13th April 2012 to 30th April 2012
11th May 2012 to 26th July 2012
27th July 2012 to 30th August 2012
21st August 2012 to date ( being 19th February 2015)
The Tribunal is satisfied that these stamps are “Stamp 4” permission to remain stamps, which entitles the claimant to take up employment within the State.
On the face of these dates it would seem that the claimant does not have the relevant Stamp 4 covering 30th of April - 11th May 2012.
The Employment Permits Act 2003 has been amended by the Employment Permits Act 2014, and inserts a new paragraph at 3(a) as follows;
“It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1)”.
The defence referred to in section 3 (a) of the 2014 Act only applies to a contravention in the context of a criminal prosecution.
It is clear, that this defence does not assist the claimant in the context of these proceedings.
It is most unfortunate in circumstances where the claimant de facto worked for a period of twelve months prior to the dismissal, but for a period therein did not have a valid stamp 4 visa, thereby his contract of employment lapsed for that period into illegality.
The Tribunal has no legal authority to allow it to take into account the efforts made by the Claimant to ensure that his Stamp 4 visa was valid.
The Tribunal have had the benefit of the Supreme Court judgment in Hussein v The Labour Court delivered on the 25th June 2015, which although allowing the appeal against the decision of the High Court, the appeal does not assist the Tribunal in relation to the illegality point.
The position pursuant to the Employment Permits Act 2003 is clear, and unequivocal, the claimant must have a valid work permit/ stamp 4.
The effect of this section of the Employment Permits Act 2003 as amended is to deprive a person, such as the claimant who has done all he possibly can to ensure he has a valid stamp 4, from the benefit of employment legislation by virtue of his illegal status during a lapsed period.
Therefore the Tribunal is obliged to find that the claimant cannot satisfy the Tribunal that he had 12 months continuous service as is required by section 2 of the Unfair Dismissal Act 1977 as amended, and in those circumstances declines jurisdiction to hear the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)