Complainant

Respondent

Anonymised Parties

Labourer

Retailer

Representatives

Shane McDermott Mullaneys Solicitorr

Brian Dolan Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011560-001

25/05/2017

The claimant was employed as a labourer with the respondent from the 16th.Feb 2015 to the 19th.April 2017.He submitted the respondent was in breach of the Act for failing to issue him with written terms and conditions of employment.In his direct evidence the claimant asserted that the only time he met the claimant’s accountant – who the respondent alleged had furnished him with the contract – was on the day he   went to collect his P45.He had never met the accountant at the respondent’s site.He was unclear on his recollection of being advised that he had passed his probation but did remember being told he would get a pay increase.He did not recall being told anything about a contract.The claimant stated that he had been injured at work and had to sign papers to pursue a personal injuries claim and that it was at this point the employer became aware that he had no work permit.He stated that the respondent reported him to immigration and the Immigration Officer was waiting for him outside of work on the day his employment was terminated.It was put to the claimant that he was presented with a contract of employment on the day he met with the respondent and the accountant on the 10th.April and he made no reference to never having been furnished with a contract of employment.The claimant asserted that he had no recollection of this meeting.

The respondent submitted that the claimant is a non EEA national but did not have a work permit and consequently his employment was terminated on the 19th.April 2017.The provisions of Hussein v The Labour Court were referenced and it was advanced   that Justice Hogan had held that an employee who is illegally employed has no recourse to statutory protection.While it was acknowledged that this was subsequently overturned by the Supreme Court it was argued that this was done on a technical basis only.It was further contended that while Section 4 of the Employment Permits Act 2014 provides for civil proceedings to be initiated in cases of underpayment or non payment of monies the EAT had found in Ayaz Nagori – v- Tesco Ireland Limited UD 66 2014 that Section 4 does not create justiciable rights outside of the underpayment or non payment of wages.It was submitted that consequently there was no jurisdiction to proceed with the complaint.

Nothwithstanding this preliminary point it was submitted that the respondent met their obligations under the Act and furnished a copy of the contract of employment which it was alleged had been presented to the claimant by the respondent’s accountant.

In his direct evidence the respondent stated that he kept a good eye on the claimant for his first 6-7 weeks in employment following which he confirmed that he would keep the claimant on and directed him to the accountant to get his paperwork sorted.The respondent said that he was illiterate and his accountant did all his paperwork.The accountant gave evidence of preparing the claimant’s contract – she could not recall exactly when she did it.She stated that she recalled telling the claimant to take away the contract , read it and sign it. She said that when the claimant told her at the meeting on the 10th.April 2017 that he never signed a contract , she checked her files and discovered it had not been signed. The accountant stated that contracts are generally issued within 2 months of commencement of employment.

I have reviewed the evidence presented at the hearing and have concluded that the claimant was aware that he was working illegally without a permit. Accordingly , I find the claimant does not have a remedy under the Act and consequently, I do not uphold the complaint.