ADJ-00010042

Complainant

Respondent

Anonymised Parties

An employee

An employer

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-00013131-001

14/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013131-002

14/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013131-003

14/08/2017

The Complainant commenced employment with the Respondent on 18th July 2016 and was dismissed on 2nd March 2017. The Complainant alleges that his dismissal took place one day after making a “protected disclosure” to one of the directors that the company were employing someone who had no legal entitlement to work in Ireland.

Comprehensive written submissions were produced at hearing.

The hearing of this case took place on 19th January and 23rd March 2018.

1.      The Complainant is alleging that on 1st March 2017 he approached one of the directors to advise that he had become aware that the company was illegally employing someone in circumstances where her work permit had apparently lapsed. The Respondent had become aware that one employee’s work visa had expired and addressed this by writing to the employee pointing out that they were terminating her employment contract and she could certainly return when the problem with the work visa had been addressed. The Respondent respectfully submitted that no conversation ever took place between the Complainant and the Respondent on this issue.

2.      The Complainant’s employment was terminated on a ‘no fault’ basis in accordance with the terms and conditions of employment.

3.      The Complainant did not have one years’ service prior to his employment being terminated. Therefore, he is not entitled to the protection of the Unfair Dismissals Acts 1977 – 2007.

4.      The Complainant is alleging that his employment was terminated after he apparently made some disclosure to the employer. It was respectfully submitted that no such disclosure was ever made by the Complainant and that he is simply using same as a mechanism to avail of the protection of the Acts.

5.      On 21st September 2017, the Respondent’s representative wrote to the Complainant’s Representative seeking details of efforts to mitigate loss. No response was ever received.

6.      Minimum Notice and Terms of Employment Act 1973 – The Complainant was paid in lieu of his notice entitlement. This is reflected in the final payslip issued to the Complainant. Therefore, it is respectfully submitted that this claim is entirely without merit.

7.      Organisation of Working Time Act 1997 – The Respondent’s annual leave year runs from 1st January to 31st December. On 2nd March 2017, the Complainants employment was terminated. At that time, he had accrued 4.5 days of annual leave. The Complainant was paid for those days of annual leave which is reflected in his final payslip.

8.      Legal cases quoted:

·        Lee Bradshaw v William Murphy, Joseph Murphy, Claire Murphy & Copper Bar and Grill Limited [2014 IEHC 1461]

·        Owen Hughes v Mongodb Limited [2014 IEHC 335]

1.      The Complainant’s duties included introducing new policies and procedures across a wide range of issues within the Respondent company to ensure regulatory compliance and efficiencies.

2.      The Complainant became aware on 01/03/2017 that the Respondent was illegally employing an individual as her employment permit had elapsed with a significant period and was paying her off the books to avoid detection. The Complainant was extremely concerned about the Company’s potential exposure to serious criminal charges arising from its actions.

3.      The Complainant immediately relayed his aforementioned concerns in the strongest possible terms to the Respondent directors and was curtly advised that the matter was none of his business.

4.      The following day, 2nd March 2017, the Complainant was called into a meeting without prior notice and was advised that he was to be dismissed. He was presented with a letter at that meeting which stated “We write to confirm that your employment with the company shall end today Thursday 2nd March 2017. We would again like to sincerely thank you for your work with us and assure you that it is no fault of yours or any reflection upon your commitment, ability or performance during your time with us. May we also take this opportunity to wish you every good success for the future. Your P45 and any monies due to you including payment of notice and any accrued but unused annual leave entitlements will be forwarded to you in due course”.

5.      The Complainant was then immediately escorted from the premises. The Complainant was devastated and utterly humiliated by what had occurred.

6.      The information in relation to the employee without a valid work permit came to the Complainant’s attention arising from him carrying out his duties as an Operations Manager and furthermore clearly evidences multiple wrong doings on behalf of the company. The Complainant made his complaint to the respondent company directors pursuant to Section 6 of the Act.

7.      It has been accepted that since the onset of correspondence in relation to this matter that an employer is entitled to terminate an employee’s contract of employment on a no-fault basis provided adequate notice is provided. That is clearly however not what happened in the matter at hand. The Complainant was dismissed arising from his protected disclosure of serious and sustained wrongdoing which he made the day previous. It is corroborated by the vicious nature of termination of his employment in that he was immediately escorted from the premises.

8.      The Complainant was unemployed for a period of seven weeks (€6,727.00) before obtaining a new position on a salary of €40,000 per annum, a drop of €10,000 per annum.

9.      The Complainant worked on 01/01/2017, a Public Holiday. He did not receive payment for same.

10.   Annual Leave entitlement was incorrectly calculated, the correct amount was 5.425 days and not 4.5 days as paid to him.

This hearing took place over two days, 19th January 2018 and the 23rd March 2018.

On day 1 we heard in evidence from the Complainant that he had been informed by the accountant that an employee was being paid “off the books” because her work visa had expired. The Complainant then informed the Company directors of this and claims he was told that it was none of his business.

Two company directors gave evidence on day 1. Both informed the hearing that there was no discussion with the Complainant in relation to an employee being paid “off the books”.

The first director Ms Da, explained the reasons for the Complainant’s dismissal and went onto describe him as a good worker and that there were no problems whatsoever with his performance.

The second director, Ms Du corroborated the evidence from her fellow director and added that the Complainant had not been escorted from the premises.

On day 2 of the hearing evidence was heard from the accountant and from the employee who had allegedly been paid “off the books”.

The Accountant, Mr R, in evidence stated that there was no conversation with the Complainant about any employee being paid “off the books.

Ms A, the employee with the expired work visa gave evidence that she was called to a meeting in relation to her visa and was then informed by letter that her employment could not continue with the Respondent and if it was the case that she wanted to return to the Respondent company when her visa was renewed the Respondent would be happy to discuss re-employment with her. She was quite clear that she had not remained in employment and had been paid by cheque “off the books”. 

Having considered the facts of the case I have to accept that there is an overwhelming amount of evidence to support the version of events from the Respondent. This being the case I have no jurisdiction to hear a case under the Unfair Dismissals Act,1977.

In relation to claims under Organisation of Working Time Act, 1997 I believe there was acceptance from the Respondent that the Public Holiday on January 1st 2016 would be paid to the Complainant and that holiday entitlement would be added for the pay in lieu of notice period i.e. 5.42 days rather than 4.5 days.

These amounts should be paid within 20 days of receipt of this decision.

Protected Disclosure. Dismissal.