FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Recommendation No ADJ-00000368.
BACKGROUND:
2. This case concerns a claim for unpaid leave that the claimant was placed on pending the production of a work permit.
This matter was referred to an Adjudication Officer for investigation and decision. On 22 March 2016 the Adjudication Officer issued the following decision:
- "In respect of the complaint subject to this adjudication, the Respondent shall pay the Complainanta gross amount of €2,232.36 (three weeks pay) and the period 1st to 24th March 2015 be deemed at work for all other purposes, such as the calculation of holiday pay and so forth".
The Employer appealed the Adjudication Officer's Decision to the Labour Court on 15 April 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 3 June 2016.
UNION'S ARGUMENTS:
1 The Claimant is an employee with almost 12 years impeccable service and has never given his employer any reason whatsoever to doubt his honesty or integrity.
2. The Company was given all necessary documentation (application form, the bank draft and receipt of posting) on the night that the Claimant reported for work, yet despite this he was prevented from carrying out his duties.
3. The issues associated with the backlog in visa applications was unprecedented and was outside the Claimant’s control.
EMPLOYER'S ARGUMENTS:
1. The Claimant was well aware that his permit was due to expire and was aware of the necessary documentation needed to continue to legally work with the Company
2. The Company is legally required to abide by the Employment Permits Acts 2003-2014 which requires Non-EEA employees to hold a valid work permit. Due to the backlog of applications to the GNIB, which was outside the Company’s control, the Company sought to accommodate the Claimant by allowing him to work in the interim period, provided he was able to demonstrate that his application was being processed by the GNIB by way of confirmation letter. The Company had no knowledge or means to establish why the GNIB did not supply a confirmation letter
3. It was perfectly reasonable for the company to request a legible bank draft in the absence of a letter from the GNIB to confirm the Claimant’s application was being processed.
DECISION:
The Court has given careful consideration to the submissions of both parties in this dispute.
The Court finds that the circumstances that gave rise to this dispute were exceptional in nature and that both parties share culpability for the delay in presenting and assessing the visa status of the Claimant. The Claimant was aware on 23 February that his visa would expire on 1 March and that there was delay in the GNIB in the processing of applications. He could have so notified the Company and made enquiries whether any other evidence would suffice. Equally the Company was aware after 1 March that there was a delay in the GNIB in the processing of applications for visa renewal and that an exceptional arrangement was necessary to deal with the situation. For its part local management dealt with the matter expeditiously when notified of those exceptional arrangements.
The Court finds that the shared responsibility for the delay should be reflected in the manner in which the dispute is resolved. Accordingly the Court finds that it would be unfair to require the Company to compensate the complainant for the entire period during which he was placed on unpaid leave as he caused some of the delay himself by not responding earlier to the email of 23 February. Equally the Company could have responded more expeditiously to the exceptional circumstances that arose at that time.
In all the circumstances of this case the Court finds that the Complainant was responsible for one week’s delay and the Company was responsible for two week’s delay and that the Adjudication Officer's decision should be varied to reflect that proportion.
The Court therefore reduces from three to two weeks the period for which the Complainant should be paid and varies the Adjudication Officers decision accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
7 June 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.