Complainant

Respondent

Anonymised Parties

Slaughter Line Operative / Butcher

Meat Processing Company

Representatives

Conor Quinn

John J Quinn & Co Solicitors

Mark Connellan

Connellan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009882-001

23/02/2017

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

CA-00009882-002

23/02/2017

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

CA-00009882-003

23/02/2017

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

CA-00009882-004

23/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009882-005

23/02/2017

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

CA-00009882-006

23/02/2017

The Complainant commenced employment with the Respondent in August 2014. He is a Brazilian National. He was in receipt of an average gross weekly pay as per his calculations of €463.64 per week.

The Claimant stated that he was dismissed on the 3rd February 2017. His claim was that he was assaulted by a brother of the Company directors, who was also a part owner of the company. During the assault, he was fired by this manager without any proper procedures. He didn’t receive any notice of the termination of his employment.

He further claimed that during his employment, he did not receive his statutory daily rest periods, he worked more than the maximum permitted hours in a week and he worked excessive night hours.

The Respondent made a preliminary application about my jurisdiction to hear these complaints.   Its case was that the Complainant did not have a valid employment /work permit issued by the Department of Jobs, Enterprise and Innovation. At the time of the alleged termination of his employment, the Complainant’s dependent employment permit (the third for the period of his employment with the Respondent) had expired. It expired on the 4th November 2016. The Complainant had initially delayed in providing the Respondent with the necessary documents to accompany an employment permit renewal application and only provided the required documents post the 29th December 2016.   Subsequently, the Respondent had an issue with the documents furnished by the Complainant to substantiate his dependent employment permit application. It was the Respondent’s case that the Complainant was no longer residing with the Primary permit holder. It appears that no application to renew the employment permit was ever made by the Respondent.

The Respondent further denied that the Complainant was dismissed on the 3rd February 2017. Its case is that it had given the Complainant written notice on the 29th December 2016 of the termination of his employment due to the Complainant not having a work permit.

CA-00009882-001 Pay.   This related to the Respondent’s failure to pay the Complainant his notice entitlements on dismissal.

CA-00009882-002 Hours of Work. This referred to the Complainant’s statutory daily rest periods. The Complainant’s case was that he started work most mornings at 5.00 a.m. and finished after 5.00 p.m. He worked Monday to Friday each week. Some shifts were longer than 12 hours. He received a 15-minute break at 10.00 a.m. and an hour long break three hours after his first break.  

CA-00009882-003 Hours of Work. This complaint related to the Complainant being required to work more than on average 48 hours per week. He calculated he worked an average 60 hours per week. He disputed the documentary evidence being maintained by the Respondent.  

CA-00009882-004 Hours of Work. This complaint related to the Complainant being required to work excessive night hours.   His complaint was that he worked more than 60 hours per week commencing at 5.00 a.m.

CA-00009882-005 Unfair Dismissal. Reciting the case submitted in very summary form, the Complainant’s case is that he was assaulted by a brother of the directors. This manager was the Respondent’s transport manager and a co-owner of the company. The Complainant considered that he was his manager and that he took direction from him.  

The dispute related to a loin of pork. The eye of the loin was cut through and the manager felt this joint would be rejected by the customer. The manager accused the Complainant of badly butchering the loin and causing the defect.   The Complainant denied that it was him who caused the defect to the meat. There were other co-workers working on the line who could equally have caused the defect. The argument became heated and the Complainant put his boning knife into the loin of meat, threw his steel into an empty bin and attempted to walk away.   The manager stood in front of the Complainant, grabbed him by the throat with his two hands and threw him in the direction of the bins nearby. He then grabbed him by the back and pushed him towards the boning hall.   He said to the Complainant “You are out”. The Complainant took this as meaning “You are fired.” The Complainant hit his head off a metal box during the incident.   He was bleeding. He was walked by the manager out of the boning hall and the dispute continued in the hallway outside. He then took off his overalls and rang the Gardai to report the incident.

He was later contacted by both a different manager and a director of the Respondent company who was a brother of the manager who assaulted him. He recorded this conversation with the director of the company as he “wanted to protect himself”. The company director said that the transport manager was “wrong to touch you”.   There was no formal investigating what took place in the boning hall.  

He received his P45 with a date of cessation as the 10th February 2017.

The Complainant received €5,000.00 in compensation arising from a District Court criminal prosecution arising from the incident.

The evidence from the Complainant was not clear as to whether he ever did receive a further work permit. He relied on the fact that his passport stamp indicated that his employer was to obtain a work permit for him. His evidence was that he signed the forms with the Respondent for it to apply for a work permit on the 2nd February 2017 and the Respondent agreed to apply for his work permit. He said he knew nothing about his employment ending due to the non-availability of his work permit. He denied that he received the correspondence from the Respondent regarding termination of his employment. There was never a mention of the work permit in the audio recordings with the company director. The Complainant also relied on the fact that his previous work permits were granted retrospectively and in one case some four months after the previous one had expired.

The Complainant was unable to source any work since his dismissal. He stated that he was available for work. He had only worked in meat processing and stated he had no experience of other work. He gave examples of five (5) companies that he applied for work with. He said he sent out ‘loads’ of CV’s. We went to work for a company for a one-week trial and understands that a work permit application has been made by this employer for him. This had not issued by the date of the hearing. He provided one email from a company dated 6th November 2017 regarding an application for a role of customer service agent. He gave evidence of going for an interview and being asked for references. He felt he didn’t get a good reference from the Respondent to enable him to get a new job.

CA-00009882-006 Minimum Notice

: He was entitled to two weeks’ notice.

The Respondent raised a preliminary matter regarding my jurisdiction to hear the complaints.

During his time of employment, the Complainant had a stamp 1 on his certificate of registration issued by the Garda National Immigration Bureau which meant that a valid employment permit is required to issue for him to remain in employment. During his employment three dependent employment permits were issued by the Department of Jobs, Enterprise and Innovation. The third was to cover the period 2nd November 2015 until 4th November 2016. The employment permits were “Dependent” employment permits and issued based on the Complainant being a dependent of his then step-father who was the primary permit holder.

The Complainant’s dependent employment permit expired on the 4th November 2016.   Because of the delay by the Complainant to provide the necessary documents to accompany an employment permit renewal application, the Respondent issued written notice to the Complainant on the 29th December 2016. This letter gave the Complainant six weeks’ notice of the termination of his employment because no valid employment permit had issued for his employment with the Respondent.   The written notice followed two verbal notifications (described as meetings) on the 28th October 2016 and 7th December 2016 to the Complainant about the work permit matter.

The Complainant provided the necessary documentation that would accompany a renewal of employment permit at the start of 2017. On the 17th January 2017, the Respondent discovered that the Complainant’s circumstances had changed, and he was no longer residing or dependent on the Primary Permit holder.

The Respondent advised the Complainant that his employment would end as per the written notification provided to him on the 29th December 2016.

As the Complainant did not have a valid work permit, he was not working legally in the State.   The Respondent relied on the case of Hussein -v- Labour Court and another and submitted that the High Court findings of Mr. Justice Hogan in 2012 stood and reflected the correct legal position namely that as the employment contract was void, the Complainant did not have the benefit of the legal remedies of the State.

CA-00009882-001 Pay:   The Respondent’s case was that written notice had issued to the Complainant on the 29th January 2016.   This complied with the statutory notice period required under the Minimum Notice and Terms of Employment Act 1973. The Complainant was not entitled to any additional notice.

CA-00009882-002 Hours of Work: The Respondent’s case was that the Company clock cards show that the Complainant did receive his morning and lunch break. The Complainant was required to clock in at the start and end of each working day and for breaks. The system in place is a biometric recognition system called ‘Timeware’ using the Complainant hand print. The time recording cannot be altered. The clock cards show that the Complainant received a daily rest period of 11 hours and a weekly rest period of 24 hours.

CA-00009882-003 Hours of Work: The Respondent’s case was that it did not require any employee to work more than 48 hours averaged over a 4-month reference period. The Respondent submitted the 4-month rest periods for the entire of the Complainant’s term of employment. It relied on same to show that the 48-hour maximum was not exceeded.

CA-00009882-004 Hours of Work: The Respondent’s case was that the clock cards evidenced that the Complainant never started earlier than 4 am. The Complainant could be classified as a night worker.

CA-00009882-005 Unfair Dismissal

The Respondent denied that the incident of the 3rd February 2017 occurred in the manner alleged by the Complainant. Its case was that the Complainant was the aggressor throughout. He had a history of getting into fights and submitted evidence in this regard. It submitted that the Complainant brought about the fight that morning in the boning hall.

Its position was that at no stage was the Complainant told that he was fired. Instead he absented himself from work and did not return following the alleged incident. A company director overheard the parties arguing in the hallway outside the boning hall. There was no mention of dismissal in that interaction. The Respondent denied that the Complainant was dismissed on the 3rd February 2017.

The Respondent submitted that if the incident did occur as alleged (which was denied), the Complainant did not follow its grievance policy.

His P45 was issued to him on with a termination date of the 10th February 2017 in accordance with the terms of the letter of the 29th December 2016.

CA-00009882-006 Minimum Notice: As per complaint CA-00009882-001 above.

Dismissal is in dispute in this case.

Firstly, I have considered the caselaw which dealt with the preliminary matter and the status of Hogan J’s judgement in Hussein -v- The Labour Court [2012] 23 ELR 293 and the implications of the Supreme Court appeal decided as published under reference [2015] IESC 58.

In the High Court, Mr. Justice Hogan found the employee complainant was employed in the absence of a work permit and therefor the contract of employment was illegal. In the appeal of the judgement of Hogan J, the Supreme Court found that the High Court erred in finding as a fact that the absence of a work permit rendered the contract of employment illegal. The Supreme Court held that the scope of Mr. Justice Hogan’s jurisdiction was limited to examining the lawfulness of the two Labour Court decisions, which both concerned determinations that the Respondent pay the Applicant the sums of money as ordered by the Rights Commissioner for its breaches under the relevant legislation. The Supreme Court held that the two decisions of the Labour Court were not concerned with the merits or lawfulness of the decision of the Rights Commissioner and that the Rights Commissioner’s decision was not the subject matter of the judicial review before the High Court. The Supreme Court allowed the appeal and although it found it was unnecessary to examine the question of illegality of an employment contract in the case in hand, Mr. Justice Murray provided some useful comments, albeit obiter in his judgement. These related to the principal of proportionality.

Since the Hussein decision there has been an amendment to the Employment Permits Acts 2003.   There were introduced to provide further protection to non-national employees that are employed without a valid work permit. There have been no amendments to the Unfair Dismissals Acts. Section 8(11) of the Unfair Dismissals Acts allows an employee to maintain a claim of unfair dismissal despite the contract of employment being tainted with illegality by reason of breaches of the income tax legislation only.

I have considered the current approach of the UK courts for guidance. The Courts of England and Wales have issued judgement in Hounga -v- Allen [2014 UKSC 47] regarding illegal contracts and the effect on statutory employment claims. The Court held that the inextricable link test is the most appropriate test to be applied. Lord Wilson stated

“thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident it requires quite extreme circumstances before the test will exclude a tort claim”.

In this case, I find that there are no extreme circumstances to deny the Complainant his right of a cause of action. There is no link between the events of the 3rd February 2017 and the non-availability of the work permit. The Respondent submitted that the events of the 3rd February 2017 had nothing to do with the issue of the P45 and the termination of the Complainant’s employment. I cannot accept this.

A director of the Respondent met with the Complainant post the 3rd February 2017 and before the P45 issued. The Respondent was aware of the events of the 3rd February 2017 and while it made some effort to commence an investigation into same, the details of which presented at the hearing were scant and no documentary evidence was provided to me. The meetings between the Respondent company director and the Complainant focused more on the Complainant having made a complaint to the Gardai about the incident and no mention was of the work permit.

The Respondent submitted that there was failure on the Complainant’s part to bring a grievance regarding same. I cannot accept this as being correct practice. Any dismissal howsoever arising is required to be carried out in a reasonable manner by the Respondent and in accordance with the principles of fair procedures.  

The Complainant denied receipt of the warnings and correspondence about his work permit. I accept this evidence. The Company director who met with the Complainant never referenced same during the two conversations which took place post the 3rd February 2017.

I find that the events of the 3rd February 2017 over took any issue that the Respondent may have had about the Complainant’s work permit and cannot be ignored by the Respondent.

My decision about the preliminary application of the Respondent is that the Complainant is entitled to bring his complaint of Unfair Dismissal and the fact that his work permit had expired at the time of the alleged dismissal - in the circumstances of this case - does not prohibit me hearing this complaint.

CA-00009882-001 Pay:   This is a duplication of complaint CA-00009882-006 below and my decision is that it cannot be brought twice.   The Complaint is not well founded.

CA-00009882-002 Hours of Work. I was not presented with any evidence that would counteract the clock in / clock out system. I did not find the evidence of the Complainants witnesses as reliable. I find that the Complainant was provided with his correct rest period. I dismiss this complaint.

CA-00009882-003 Hours of Work. I was not presented with any evidence that would counteract the clock in / clock out system. I accept the evidence of the Respondent that they never had a complaint from the Complainant during his period of employment about the time system. I find that the Complainant did not work more than was legally allowed under the Organisation of Working time Act. I dismiss this complaint.  

CA-00009882-004 Hours of Work. The working hours of night workers are regulated by Section 16 of the Organisation of Working Time Act 1997. It is important to be clear about what is meant by night work and night worker. Night work means work done in the period between midnight and 7am. A night worker is an employee who normally works at least 3 hours between midnight and 7am and who works at night for at least half of their working hours in a year. The Complainant never started work before 4 a.m. therefore he does not fall within the definition of night worker. I dismiss this complaint.

CA-00009882-005 Unfair Dismissal.

The Complainants case is that he was dismissed on the 3rd February 2017 in the boning hall of the Respondents factory by the actions and words of the transport manager who is a brother of the directors of the Respondent company.

I was provided with CCTV footage by the Respondent and two audio recording by the Complainant at the hearing. I accepted both into evidence. The CCTV footage was of limited assistance to either party’s case. The Respondent’s solicitor heard the audio recordings before they were played to me. He strenuously objected to the admissibility of the audio recordings which were made without the Company directors’ knowledge.

While the Company director came across as fair and measured in the audio recordings, ultimately the interest of his brother was his primary concern and that a complaint had been made to the Gardai of the incident.

I accept that an incident did occur in the boning hall and as a result the Complainant’s employment ceased on the 3rd February 2017. His P45 issued on the 10th February 2017. He didn’t resign.

I do not accept the justification put forward by the Respondent for the termination of the Complainant’s employment. Even if the events of the 3rd February 2017 had not intervened, the process being undertaken by the Respondent to terminate the Complainant’s employment for the non-availability of his work permit was not a fair process.   The minutes of the meetings were not agreed by the Complainant nor was receipt of the letter of the 29th December 2016. The Complainant accepted that there were discussions about his work permit, but his evidence was that there was no question of the termination of his employment for same. Nor was there an opportunity for the Complainant to appeal the decision made.

Looking at the events post the 3rd February 2017, the Respondent did make some effort to investigate the events that took place. However, this appears to be on an informal basis and was not in accordance with good HR practice or fair procedures. Meetings were held without a note taker and while I accept it may have been a very stressful time for the company director, he should have excused himself from the process and resisted the temptation to try to resolve matters as he did. He was not impartial in the process as the complaint was made against his brother. During these meetings, certain representations were made about the Complainant’s job. It was not clear as to whether these were conditional or not on the Garda complaint being dropped. Ultimately the Respondent did issue a P45 on the 10th February 2017 thus confirming the termination of the employment relationship.

Based on the above, the Complainant’s employment was terminated in an unfair manner. As regards redress, re-instatement and re-engagement would not be appropriate in this case. The preferred outcome as requested by the Complainant was compensation.

Section 7(2) of the Unfair Dismissals Acts requires me to have regard to  

(a)    The extent (if any) to which the financial loss ……was attributable to an act, omission or conduct by or on behalf of the employer,

(b)    The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee

(c)     The measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures to mitigate the loss aforesaid,

(d)    The extent (if any) of the compliance or failure to comply by the employer in relation to the employee with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice….

(e)    The extent (if any) of the compliance or failure to comply by the employer in relation to the employee with the said section 14 and

(f)      The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

The Complainant sought 90 weeks compensation at the hearing. I cannot award him this amount if I consider the requirements of Section 7(1)(c) of what is just and reasonable in the circumstances. The evidence presented to me by him, did not correlate with his assertions that he was actively seeking work. To be only able to list five or six potential employer companies over a period of nineteen months is not acceptable as evidence of mitigating his loss.

Similarly, the Complainant’s evidence regarding his entitlement to a new work permit was not clear and the delays experienced in obtaining one by his new employer ambiguous.

In addition, I cannot fully accept the evidence of the Complainant that he was an entirely innocent party in the incident which took place on the 3rd February 2017 and that the actions of the transport manager were totally one sided.   However, whatever provocation was made on the Complainant’s part, same was on the lower end of the scale and did not justify the transport manager physically assaulting the Complainant and ordering him out of the boning hall.

Taking the above into consideration and the Respondents actions in the events complained of, I award the Complainant 22 weeks lost wages which amount to €10,200.00 gross.

CA-00009882-006 Minimum Notice: This follows the findings I made in the above Unfair Dismissal complaint above.   I do not accept the Respondent’s letter of the 29th December 2016 met the requirements of the Act. I award the Complainant 2 weeks’ notice which amount to €826.00.

CA-00009882-001 Pay:   Dismissed.

CA-00009882-002 Hours of Work: Dismissed.

CA-00009882-003 Hours of Work. Dismissed.

CA-00009882-004 Hours of Work. Dismissed.  

CA-00009882-005 Unfair Dismissal. I find the dismissal was unfair and award the Complainant: €10,200.

CA-00009882-006 Minimum Notice. The claim is well founded. I award the Complainant: €826.00

Work permits, Preliminary application, contract void.