Complainant

Respondent

Anonymised Parties

Retail Employee

Service Station

Representatives

Michelle Cronin                                     Michelle Cronin & Co Solicitors

Aleksandra Tililainen                            Fergus Dwyer                                 IBEC

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-00035221-001

13/03/2020

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

CA-00035221-003

13/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035221-004

13/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035221-005

13/03/2020

The Complainant herein is a non-national who has resided in Ireland for several years. The Complainant was employed with the Respondent and was allowed by the State to be so employed in circumstances where she had obtained a work Visa. It was the expiration of that Visa that gave rise to difficulties in the employment relationship and about which the Complainant has now brought her complaints.

The Complainant was represented and I was provided with a comprehensive submission. The Complainant believes that her employment was terminated primarily because she was pregnant. She believes that the manner of her dismissal was unfair and has also made the case that the employer attempted to use her vulnerable status as a permit employee against her, by requesting long hours of work in contravention of the Visa she held.

The Complainant says she was denied Minimum Notice and was never provided with the Terms and Conditions of her Employment.

It is noted that the Complainant was provided with time post-hearing to make a submission concerning the question of Contracts of Employment and Illegality stemming from the expiration of Work Visas/Permits.

The Respondent was represented and I had a comprehensive legal and factual submission presented to me. The Respondent denies it acted in a discriminatory way as against this employee. The Respondent asserts that this Contract came to an end by operation of Law. In the circumstances the Respondent makes the case that employment rights/ protective legislation cannot be invoked.

I have carefully considered the evidence adduced in the course of this hearing. The fact of there having been a termination of this Employment relationship was not in dispute. This meant that the Burden of Proof rested with the Respondent Employer to demonstrate that it had behaved reasonably in the circumstances for the purposes of the Unfair Dismissal case.

The Complainant was obliged to make her case in respect of the Minimum Notice and Terms of Employment claims. The Complainant must additionally make out a Prima Facie case in the Employment Equality case she has brought against her former employer.

A Ms CL gave evidence on behalf of the Respondent company. CL is the Senior Human Resource Business Partner and she sought to give context to this workplace. The Respondent is a Canadian based company which had recently acquired a Petrol/Service Station franchise across the country. The workforce in Ireland has always included a multicultural range of talent from many different ethnic and cultural backgrounds. As many of the staff come from countries beyond the borders of the European Union, it is necessary that valid work Visas/work permits are in operation for those persons not automatically entitled to work here. I heard evidence that up to 30% of the 2,000 employees work under various work Visa programmes. It’s a big topic of conversation amongst the workforce in this workplace according to LC.

Before the takeover by the Canadian Company in 2016, the Respondent company had operated it’s own internal systems for keeping abreast of those Employees working under Government granted Visas entitling them to work in Ireland. There was a constant need to remind Visa holders to start preparing for renewal as the Visas expiration dates came up. After the takeover, new systems came into operation, and these were led by a European based project Team. In law, the onus is on the individual to get his or her Visa as and when they fall to be renewed – this is acknowledged by me to have been a  protective measure so as to ensure individuals are not at the mercy of unscrupulous employers.

Unfortunately, the new operating system (as introduced by the new parent company) did not include any process for issuing a warning to capture potential and upcoming expiry dates. It was an oversight on the part of the Respondent, and the upshot of it was that long serving and loyal employees discovered that they were working beyond the expiration of their valid work Visas. This all came to light in the context of a Workplace Relations Commission Inspection which had been conducted over a long period from 2018 through to 2019 – just before the events giving rise to these proceedings. The WRC Inspection was conducted over a 9 to 10 month period and the evidence is that the Inspector put the Respondent on strict notice that it was very serious to employ people without valid working Visas where same were required. The Inspector was very clear that criminal charges could be brought against the Respondent.

It was against this backdrop that the Respondent company re-engaged with the process of closely monitoring the Visa expiration dates of it’s employees. CL gave evidence that, to avoid criminal charges, the Respondent company sometimes had to suspend employment when an individual’s work permit expired before obtaining a new one. Only when a new Visa is obtained can an employee re-engage with the workforce.

The Complainant was engaged as a Sales Assistant. Initially the Complainant had worked for the best part of a year during 2016 and then, after a period away, she came back into the workforce in 2017 under a Visa that expired in September 2018. On the expiration of this Visa in September 2018 it is common case that the Complainant continued in employment until December 2018 at which time a fresh Visa issued. The Complainant has asserted that this version of events establishes a precedent for continued employment between Visas being allowed by the Company. The Complainant was on a student Visa (Visa Stamp 2 issued by the Department of Justice and Equality) which allowed her to work up to 20 hours a week in tandem with her studies. More hours could be worked out of term time. The Visa had an expiration date of 6th of September 2019. The Respondent was very happy with the Complainant, and she was invited to take part in a Student Placement Programme working in the Marketing section for two months in the summer of 2019.

It is common case that the work Visa herein was due to expire on the 6th of September 2019. The date of expiration passed, and the Complainant continued on in the workplace. The Complainant believed that this was the same as it had been the previous year and it was just a question of obtaining a new Visa. The onus rested with her to set in train the process of acquiring a new Visa. The oversight was noticed, and the Respondent was quick to suspend the Complainant as of the 21st of September 2021. A letter from a Ms JH to the Complainant dated the 25th of September confirms the fact of suspension without pay and confirms that proof of eligibility to work will be needed before the Complainant can return to paid employment. The letter goes on to state that a failure to provide the relevant paperwork may result in the employment being declared null and void. This appears to be in line with the Company’s approach in the aftermath of the WRC investigation aforementioned. The Respondent makes the case that it was now under an obligation to operate a tighter regime.

That said, I do not understand why the Company includes the proviso that the Complainant will be invited to attend an Investigation meeting should she fail to provide the appropriate paperwork by the 9th of October. A failure to provide the paperwork may result in the employment being declared null and void, the letter says.  This seems to me to be the language of a Disciplinary sanction. The letter seems to apportion some sort of blame onto the Complainant’s shoulders which is difficult to fathom in the circumstances. I am also confused by this reference to a purported declaratory power. Surely, the employment is null and void by operation of the Law and not by reason of some power of declaration somehow vested in the Employer? This letter is certainly not evidence of a good employment relationship between the parties as it appears to blame the Complainant for not having her paperwork in order. The tone is hostile. Whilst a delay in paperwork may well be the fault of the Complainant, I would have thought that encouraging her rather than berating her would be a better approach?

In any event, on the 9th of October another letter issues from the Complainant’s immediate Manager Mr B who runs the store wherein she had been working. This letter points out that the paperwork has not arrived and indeed no communication has been made. The Complainant is invited in for an Investigation meeting which she attends on the 15th of October. The Complainant attended the meeting and there is contradictory evidence as to what was said but it is common case that the Complainant was not in possession of a new Visa and had produced evidence of having posted documents by registered post. The Complainant maintains that the Manager was blasé at this point in time and that she was not put on notice that her employment was at risk. She had outlined that, like last year, she was wating to hear back from the Visa personnel.

Another meeting was scheduled for the 30th of October. I understand that the Complainant said to her Manager Mr. B that she was unavailable for this meeting as she had an Ante Natal appointment. Mr. B denies being made aware of this. A reminder was sent to her to attend a meeting on the 30th of October. The Complainant was not present and there was no evidence that the situation with the Visa was closer to finalisation. The Employer terminated the employment as of the 6th of November -some two months after the expiration of the Visa. I note this was done by way of email (possibly sent to an incorrect email address) and I note that this email refers to an earlier termination as having been erroneously recorded. I find nothing in particular turns on the previous termination though I appreciate that the Complainant must have been somewhat surprised by this fact when she checked her Revenue records.

The complainant’s husband gave evidence of an argumentative interaction with the Manager sometime after the dismissal, but I find this has no bearing on the facts leading up to the termination of this employment relationship.

Overall, I am satisfied that the Respondent had intended continuing with the Complainant’s employment just as soon as the Complainant provided them with the  valid operative Visa. It was the failure to provide this paperwork that resulted in the termination. No right of Appeal lies, says the Respondent, where the Contract is terminated by operation of the law and not by reason of some decision made by the Respondent.

The Respondent contends that the complainant knew that the onus was on her to obtain her replacement Visa and that in fact the termination of employment occurred on the 6th of September by operation of law. The next two months, the Respondent says, should be regarded as a period of time during which it was hoped that the complainant would be able to obtain her new Visa. The Respondent has also asserted that there was no enforceable Contract of Employment in operation during this period of time. The Respondent has invited me to accept that once the work Visa expires there is no entitlement to the protections set out in the employment rights Statutes (including Minimum Notice, and the obligation to provide specific terms and conditions of employment).

Section 6 (4) (d) of the Unfair Dismissals Acts 1977 -2015 specifies that the dismissal of an employee shall be deemed for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…’’(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or his/her employer) of a duty or restriction imposed by or under statute, or instrument made under statute’’.

The Respondent has asked that I accept that Section 6 (4) (d) is the operative section for the purposes of this situation.

I have had to give some consideration to the law in this area. The 2012 case of Hussein  -v- The Labour Court and in Muhammad Younis 2012 IEHC 364  is relevant here and that case found that the complainant was unable to invoke various protections afforded by Irish employment legislation by reason of the illegality of the contract of employment. The illegality arose from the employee's failure to hold the required employment permit. Despite potential allegations of gross exploitation no redress was available against the employer in such cases. Hogan J. who heard the Judicial  Review in the High Court confirmed the principle that parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the legislature clearly has given a right to sue. No such right or opportunity was available in the Employment Permit Acts. He also remarked at that time that “due to the provisions of the Employment Permit Acts one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantial illegality”. I understand that the reasoning off the High Court still represents the law on the consequences of working without a valid work visa. The Supreme Court in Hussein did not reverse or unsettle these findings instead opting to deal with the Hussein case on different grounds.

The Respondent invited me to consider the  Labour Court’s consideration of this matter in the subsequent case of TA hotels limited trading as Lynams hotel -v- Khoose RPA / 17 / 30 determination RPD 1916 (December 4th 2019) And the respondent has asked me to consider the outcome of this case. Once again, the labour Court found that the contract of employment relied upon by the complainant to ground his claim for certain statutory employment rights was tainted with illegality and therefore unenforceable in law. Consequently, the complainant could not maintain a claim under the Employment Rights Act. The Labour Court, in these circumstances, pointed to alternative remedies available through the civil courts which had been provided for by amendment to the Employment Permit Acts in the aftermath of the Hussein decision. These reliefs are not remedies capable of being pursued in the Labour Court  as the Labour Court is a statutory employment law Tribunal and cannot hear civil proceedings. The Court was satisfied the contract was unenforceable and determined that Mr. Khoose had no remedy before the WRC under the Employment Permits Acts.

As it happens, I had the opportunity to consider another decision of the High Court delivered on the 12th day of January 2021 by Mr Justice Heslin in the case of Shardha Sobhy   -v-   The Chief Appeals Officer and the Minister for Employment Affairs and Social Protection (Record no 2020/353 JR) this case concerned an entitlement to maternity benefit where the working permit had expired. The High Court took time to consider the case of  Quinn -v- IRBC 2016 1 IR wherein the Supreme Court had looked at issues concerning Contract illegality.

It seems the Quinn case is clear authority for the proposition that there can be no hard and fast rule and no universally applicable rule to the effect that a contract tainted by illegality is always and of necessity and regardless of the consideration of any other factors void. It is clear from the supreme court's decision in Quinn that the proposition is far more nuanced. In Sobhy, the Court found that despite there being no valid Visa in operation the relationship does not automatically ceases to be a contract of service for the purposes of the Social Welfare Acts. The Judge did however indicate that when she had applied for maternity benefit under the Social Welfare Acts the complainant was working under a valid Visa allowing her to work in the state.

Reference was again made to sections 2(b) and 2(c) of the Employment Permit Act of 2003 (referenced in Khoose ). These sections provide a mechanism which enabled contracts of employment which are prima facie illegal to be treated as not only valid but enforceable in a specific context (namely permitting a foreign national to sue for unpaid monies due to the foreign national in respective of services rendered during the course of employment or service…). A position already stated in Khoose.

Having considered Mr Justice Heslin’s decision, I am satisfied that the Sobhy case does not advance the Complainant’s position and that the law is as it was put to me at the time of the hearing of this case. Ultimately this case is to be distinguished from the cases put forward by the Respondent herein in support of it’s proposition. As previously stated, the Respondent had opened up the caselaw and the Complainant was given an opportunity to reply which was not, in the end, availed of.

I do not doubt that the fact and the manner of the termination of this employment relationship was very upsetting to the Complainant who had been a good and a loyal worker. I have no reason to think that the Complainant’s being pregnant had any bearing on the decision not to continue with the employment and for the avoidance of doubt I do not find a Prima Facie case has been made out in this regard. Nor can I find that a Prima Facie case been made that the Complainant was treated less favourably on the grounds of race as she has asserted.

The Contract of Employment herein was rendered void at the expiration of the student Visa (as issued by the Department of Justice and Equality). The Complainant was fully aware of the fact that the Visa was going to end and the onus rested with her to renew it. The fact that, in the preceding year, the parties had continued to work through the period when their relationship was void does not somehow create a legal precedence upon which the Complainant can now rely. This I know is frustrating for her.

This Contract was void from the 6th of September 2019. I am satisfied that the Complainant’s entitlement to the employment rights protected under legislation expired at that time too. The Complainant cannot seek to enforce them through the WRC.

I would also say that the parties were both on Notice of the fact that the Visa was due to expire and in a way that any Notice period pre-dated that. I would further note that the terms and conditions of this employment appear to have been known to the complainant who had signed a Contract of Employment.

For the avoidance of doubt, even if I wasn’t already bound by case precedent in this area I would in any event accept the Respondent’s argument that Section 6 (4) (d) of the Unfair Dismissals Acts 1977 -2015 is relevant to these circumstances. This section specifies that the dismissal of an employee shall be deemed for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…’’(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or his/her employer) of a duty or restriction imposed by or under statute, or instrument made under statute’’.

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

CA-00035221-001  – The Complainant was not Unfairly Dismissed. The Complaint Fails.

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

CA-00035221-003 – This Complaint is not well founded

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035221-004 – This Complaint is not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035221-005 – This Complaint is not well founded