ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003722
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00004231-001 | 04/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004231-002 | 04/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004231-003 | 04/05/2016 |
Date of Adjudication Hearing: 17/01/2017
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).
Complainant’s Submission and Presentation:
Applicant did not receive a contract of employment |
Applicant consistently worked longer than permitted hours on average over lengthy period that is allowed under the Organisation of Working Time Act. |
The Claimant was employed as a security guard and joined the Respondent's company after a transfer of undertaking arrangement. The Claimant is not an Irish national but had a green card to allow him to work by the Dept. of Jobs Enterprise & Innovation (DJEI). In January he was called to a meeting to discuss his green card. He was advised that there would be an investigation into this matter. He was subsequently advised that he was no longer employed as a result.
The procedures in dismissing him were flawed and unfair. He was not informed of the meeting that dismissed until the day before nor was he made aware of the serious consequences which might have resulted from the meeting.
Respondent’s Submission and Presentation:
The Claimant became an employee of the Respondent as a result of a transfer under the TUPE legislation. This took place on 1 December 2015. A request was made for notification of change of name of the employer, which was necessary for him to meet his conditions of his green card. On examining this card it was discovered that it permitted him to work within the financial services as a Business Risk Analyst. The Respondent notified the Claimant in writing of this problem on 6 January 2016 and advised that they would have to contact the DJEI to ascertain exactly was the situation was in relation to him working as a security guard.
The Claimant was invited to another meeting on 15 January 2016. He was advised that he could be accompanied by the SIPTU Shop steward who was in the office that day. His green card status was discussed. He was advised that he could not continue as a security guard until his legal difficulty was resolved with the DJEI. The Respondent did not have any other contact with him until he lodged his claim with the Workplace Relations Commission.
It is clear the he was not legally entitled to work as a security guard, therefore the Respondent had no option but to terminate his employment otherwise they were liable to be prosecuted and fined for breaking the law.
In regard to the Terms of Employment (Information) Act, this requires an employer to provide written terms within eight weeks to an employee, therefore it was the responsibility of the transferor tom provide this not the Respondent as the transfer.
In regard to the Organisation of Working Time Act, the period referred to is July 2015 to January 2016. The Claimant did not work for the Respondent during this period, it was with the transferor. Also the claim is outside the time limits in any event.
Decision:
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.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have considered the submissions of both parties. It is clear from the Claimant’s green card that he had no legal entitlement to work as a security guard therefore the Respondent had no option but to terminate his employment. Furthermore, no evidence was presented that the Claimant sought to have his green card changed to continue his employment with the Respondent. Therefore I do not find the dismissal unfair.
In regard to the other claims under the Terms of Employment (Information) Act and the Organisation of Working Time Act, this are not the responsibility of the Respondent as the transferee but the Claimant’s previous employer as the Transferor. Therefore they fail.
Dated: 08 May 2017