ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000368
1. Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00000402-001 |
23/10/2015 |
Date of Adjudication Hearing: 02/02/2016
Workplace Relations Commission Adjudication Officer: Roger McGrath
2. Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
4. Complainant’s Submission and Presentation:
4.1 The Complainant’s representative presented a detailed written submission. The submission stated that the Complainant had commenced employment with the Respondent in June 2004 and over that time he had never given his employer any reason to doubt his integrity or honesty.
4.2 The Complainant, a foreign national, is required to have a Stamp 4 visa in order to work in Ireland. His visa expired on 1st March 2015, at a time when the legislation regarding student visas was being changed, which resulted in a delay in processing applications.
4.3 On the 3rd March the Complainant spoke with his manager and explained the situation regarding the delay in renewing his visa. He showed his manager information from the Dept. of Enterprise, Jobs & Innovation (DEJI) website which had a note for employers advising them that students affected by the delay could continue to work where an application had been submitted. Despite this the Complainant was placed on unpaid leave.
4.4 On 4th March the Complainant met the company Compliance Manager and gave her a copy of the information from the Department website and a copy of the bank draft for the €1,000 application fee. However, he was not allowed return to paid work.
4.5 On 7th March the Complainant met with the Personnel Manager and submitted the following documents; Visa Extension Application Form, Copy of the Bank draft, and a receipt from An Post dated 3rd March. The Complainant was advised that the documents were insufficient to alter matters and that the company required a letter from the Department confirming that he had applied for a renewed visa. The Complainant was given a letter to send to the Department looking for such confirmation.
4.6 On 24th March the Personnel Manager contacted the Complainant and asked him to bring a copy of the bank draft and a letter confirming the draft had been made to the Department. When the Complainant arrived at work that evening with a copy of the draft and a note from the bank he was permitted to return to work.
4.7 Following his return to work the Complainant lodged a formal grievance regarding the decision to refuse him work, which resulted in a totally unnecessary serious loss of earnings. A number of meetings took place to consider the grievance and a formal hearing took place on 10th September 2015. The company upheld the initial decision to place the Complainant on unpaid leave.
4.8 In conclusion the Complainant’s representative submitted that the Complainant had an impeccable service record and that it was unreasonable in the circumstances outlined above for the company to deny him three weeks work.
5. Respondent’s Submission and Presentation:
5.1 The Respondent’s representative presented a detailed written submission. This submission outlined the Respondent’s position that the claim is without merit.
5.2 As background to the issue the Respondent stated that on 23rd February 2015 the Respondent issued a reminder to the Complainant that his Stamp 4 work permit was due to expire on 1st March 2015 and outlined the documentation needed to renew his permit to allow him to continue his employment.
5.3 After the Complainant’s permit expired he provided a copy of his application for a visa along with a bank draft, as requested by his personnel manager. The figure of €1,000 was barely visible on the draft and the receiver of the payment was not legible. As was the practice the employee was placed on unpaid leave pending the production of a work permit.
5.4 Sometime after this the personnel manager was advised by the company Employee Relations Department that if the claimant presented a letter from the Garda National Immigration Bureau (GNIB) to show that he had applied for his work permit he could return to work for an “interregnum” period of one month, as per GNIB practice, while his application was being processed. To assist the Complainant he was given a letter from the company which he could present to the GNIB asking them to give him written confirmation that he had applied for a work permit. However, the Complainant returned to the store on 8th March to explain that the GNIB would not provide written confirmation to him.
5.5 Sometime later the Personnel Manager was advised that to avoid any further delay to the Complainant returning to work, company policy was that if the claimant could not provide a confirmation letter from the GNIB, that the Respondent would accept a receipt/bank draft in its absence.
4.6 On 24th March the Complainant provided a letter from the bank confirming that a bank draft of €1,000 had been made payable to the Department, dated 2nd March 2015. The Complainant returned to work the same day.
5.7 Following his return to work the Complainant sought back pay for the three week period he had been out. Meetings took place at local level and a formal hearing took place on 10th September 2015. The outcome of the decision following the appeal was that the Complainant would not be given a back payment of three weeks as sought.
5.8 In conclusion the Respondent stated it must abide by the Employment Permits Acts 2003-2014 which requires Non-EEA employees to hold valid work permits and the Complainant did not have such a permit. The Respondent aimed to accommodate the Complainant by allowing him return to work provided he was able to demonstrate that his application was being processed by the GNIB by way of a confirmation letter, no letter was forthcoming and the Respondent had no knowledge or means to establish why the GNIB did not supply a confirmation letter. The copy of the bank draft was illegible and could not be accepted as evidence that the Complainant’s application was awaiting approval. For these reasons the Complainant was placed on unpaid leave, in line with company policy.
6. Findings and Issues for Decision:
6.1 When the Complainant first approached his manager about the unfolding situation he should have been given support. I find it hard to understand why his bona fides were questioned; he must have applied for numerous Work Permits during his employment with the Respondent, why would he now not go through the same process? If there was a question over his status he should have been given the benefit of the doubt and he should have been allowed remain working while the matter was investigated further.
6.2 When the Complainant produced documents; the Department website note to employers, the, albeit poor, copy of the bank draft and the copy of the An Post receipt, it was another opportunity for the employer to rectify the situation and allow the Complainant return to paid work. Asking him to get a letter from the Department confirming he had made an application for his visa was not a sensible solution as it was obvious the Department was under severe pressure in dealing with applications.
6.3 In the end the Respondent dropped the requirement for the letter from the Department and asked for proof that the bank draft had indeed been made payable to the Department. When this evidence was forthcoming the Complainant was allowed to return to paid employment straightaway.
6.4 Every employer has a duty to treat their employees fairly at all times and at times that requires flexibility and common sense in the application of policies. The Complainant in this case had close to 11 years service with the Respondent at the time he was placed on unpaid leave. It was agreed by the Respondent that the Complainant’s integrity was never in doubt. This being the case I believe the Respondent could and should have accepted that the Complainant was in the process of applying for a visa and, as allowed by the Department, have been permitted to continue working. This would have prevented the Complainant losing three weeks pay, a serious financial penalty, due to a difficulty over which he had no control and over which he could do nothing to rectify.
7. Decision:
7.1 Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
7.2 In respect of the complaint subject to this adjudication, the Respondent shall pay the Complainant a gross amount of €2,232.36 (three weeks pay) and the period 1st to 24th March 2015 be deemed time at work for all other purposes, such as the calculation of holiday pay and so forth.
Dated: 22 March 2016