Complainant

Respondent

Parties

Erico Luiz  De Souza

Seanita Ltd

Representatives

Felipe Pimetel Gomes Garcia on Day 1, No Appearance on Day 2 of hearing by the complainant or any representative on his behalf.

 No appearance by or on behalf of the respondent on day 1.

Sean McKeown, proprietor on day 2.

Act

Complaint Reference No.

Date of Receipt

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

CA-00056089-003

15/04/2023

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

CA-00056089-012

15/04/2023

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

CA-00056089-013

15/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 Withdrawn by Mr Garcia on Day 1 of hearing

CA-00056089-014

15/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act, 1946 Withdrawn by Mr Garcia on day 1 of hearing

CA-00056089-15

15/04/2023

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

CA-00056089-019

15/04/2023

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

CA-00056089-020

15/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 withdrawn by Mr Garcia on Day 1 of hearing

CA-00056089-021

15/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00056089-022

15/04/2023

On 15 April 2023, the Complainant, introduced himself through his representative as a Brazilian National, who had worked on a building site for the Respondent from 18 June 2022 to 6 March 2023. These dates were later disputed by the Respondent.

He submitted that he was paid €1,000 gross per week for 58 hours.

On 2 May 2023, the complainant responded to the WRC request for “missing answers “

On 9 May 2023, the respondent came on record and signalled their intention to defend the claims made.

“Seanita ltd would like to refute all complaints and allegations laid out in due course.”

On 27 September 2023, I wrote to both parties seeking outline submissions, none were forthcoming.

The complaints submitted are listed above, with highlighted withdrawals communicated on the first day of hearing.

On that first day of hearing, the complainant attended in the company of his representative, Mr. Garcia and a support person. There was no appearance by or on behalf of the Respondent.

In the run up to the hearing, Day 1 on October 3, 2023, the Respondent had sought a postponement on two grounds.

1 an injury receiving treatment.

2 his apprehension on meeting the complainant while a Garda Investigation into a claim for assault by the complainant against the proprietor was live.

No documentation accompanied the application and I proceeded to hearing in the case, satisfied that both parties were properly on notice of the time date and location of same.

It became clear to me very quickly that the Complainant side had not prepared for hearing in this case. They had not brought any documentation to hearing.

In addition, the complainant, while clear to me in his articulation of the English language, reported that he now required an interpreter to assist in his delivery.

Given the enormity of the claims, the reluctant respondent and the ill prepared complainant, I adjourned the hearing on the following correspondence communicated to both parties post hearing.

Dear Mr Pimentel Gomes Garcia,

I write today to confirm the basis of my decision to adjourn today’s hearing, which was attended by the Complainant side, alone.

1 I have decided to seek the services of a Portuguese Interpreter to enable me to fully understand the case made.

2 The Respondent had sent details of a broken finger which prevented him in attending the hearing.

3 Neither -party had honoured my request for written submissions on each aspect of the claim form. Therefore, there was a clear lack of preparedness from both parties.

4 I advise both parties to be familiar with the WRC guide to hearings.

On this day

Ca-00056089-014, CA-00056089-015 and CA-00056089-21 were withdrawn.

The Complainant clarified that he was not a member of the Travelling Community

I have decided to relist the hearing on the following basis.

1 that both parties file submissions on the case with particulars of what happened.

The Complainant is required to file this submission no later than October 27, 2023

The Respondent is required to file a submission in response no later than November 9, 2023

2 I will request the support of a Portuguese interpreter.

3 Parties are to submit details of their witnesses.

4 both parties are requested to confirm their attendance in advance of the hearing as I spent a considerable amount of time seeking the presence of the Respondent this morning.

I wish to confirm that I will proceed with the hearing on the next occasion, and I will not grant another adjournment.

A decision will issue in due course, on completion of that hearing.

I look forward to meeting both parties on the next hearing day.

Unfortunately, while this approach generated an engagement from the respondent, there has been no further contact from the complainant or his representative up to or including the second day of hearing of November 20, 2023, or subsequently.

On November 10, 2023, I wrote once more to the complainant’s representative seeking the much-requested outline submission. There was no response.

Conversely, the Respondent became engaged in the claim from that day forward and adhered to my requests as outlined above.

The Respondent outline submission and associated documents were received by the WRC and shared with the complainant in advance of the second hearing day.

On that day, November 20, 2023. I awaited the arrival of the complainant side. There was no appearance by or on behalf of the complainant and no reason shared for this nonappearance.

I proceeded with the hearing in the attendance of the Respondent and witnesses. The Respondent confirmed that the Company named at the head of this decision is registered in Ireland.

The Complainant or his representative have not afforded the WRC any reason for their nonappearance. I have recorded the complainant as in attendance on day 1 and absent on day 2 of hearing. I have recorded the respondent as absent on day 1 and in attendance on day 2 of hearing.

Evidence was given by oath.

The Complainant has not filed a submission to advance on the particulars inserted on the complaint form lodged in April of 2023.

At the outset of the complaint, he submitted a record of an inbound payment log 29 August 2022 to 23 February 2023. This document was not visibly linked to him.

Further what’s apps were submitted on May 2, 2023, many of which were undated.

On the first day of hearing, I sought to work through the complaint form with the complainant side, seeking particulars for the claims made.

CA-00056089-003 Payment of Wages

The Complainant submitted that he was deducted 10 hrs pay in the last month of his employment. He was uncertain what he earned in the absence of a pay slip, but confirmed that he was deducted €230.00, €13 per hour.

At the hearing on day 1, he submitted that he was owed €5,000 in respect of a deduction in his pay on 10 February 2023.

He did not respond to my request for particulars of this amount.

CA-00056089-012 Statement of Terms of Employment

The Complainant submitted that he had never had a contract.

CA-00056089-013 Notification of Change of terms

The Complainant submitted that he had not been notified of a reduction in his salary during the last month of his employment from €15 to €13 per hour.

The Complaint form submitted reflected a variance in pay received.

CA-00056089-019 Discrimination on Race Grounds

The Complainant submitted that he was discriminated against by the respondent on grounds of his Brazilian race, where the most recent date was listed as 6 March 2023.

The complaint was framed as: As I said earlier, I was constantly humiliated because of my race, colour and nationality. Director X is extremely racist and discriminates against all Brazilians who work on the site. Ignorance and cursing were constant. I went through the worst moments of humiliation in my life at that job.

CA-00056089-020 Equal Pay

The Complainant submitted that “There was another Heat Insulator I worked with Damien, who worked 40 hours a week and was paid almost as much as I was working 50+hours a week.”

CA-00056089-022 less favourable treatment as a fixed term worker

The Complainant did not particularise this claim

The Respondent has refuted all claims. It was accepted that the employment commenced on 18 June 2022 but ended on 17 February 2023. On exhibited time sheets, the Complainant was not recorded as attending after that date.

The Respondent is a registered company incorporated in Ireland in April 2022. The business is a construction company which subcontracts to large UK firms and has completed jobs across the UK and Northern Ireland and employs a variable grouping of 10 -30 employees.

The Respondent submitted that the business was new in Ireland in April 2022 and adjusting to the requirements of a new jurisdiction.

By way of outline, the respondent submitted that the complainant approached him on site seeking work in June 2022 and was hired. He provided a PPS number, which the respondent interpreted as carrying a legitimacy to work.

The Respondent was unaware of the need to have a work permit for the complainant until the complainant made a request for inspection at the WRC. It was the respondent case that the complainant had not been issued with a work permit until after he left employment. He maintained, in hindsight that he had been illegal for the duration of his employment. He did not tell the employer that he did not have a work permit. The Employer did not request one.

The Respondent gave evidence that he understood that the complainant secured a visa through an EU loophole subsequent to his employment ending and this may have carried a retrospection. He gave evidence that he had supported his bid to legalise his employment but did not exhibit accompanying documentation to that effect.

Mr Mc Keown recalled that the complainant appeared happy at work and had not raised issues of pay during the employment.

He exhibited pay records.

He submitted that the complainant simply walked out of his employment, without resignation.

The Respondent submitted details of a parallel criminal investigation which involves the complainant.

The Respondent submitted that the complainant had misrepresented the reality of the workplace, which, while busy and target driven, was not a site where discrimination prevailed against the complainant.

It was the respondent case that by his erratic attendance pattern, the complainant himself was challenging and they disputed his late in the day bid to exploit the company to his own end.

The Respondent was clear that the complainant had intended on presenting at the resumed hearing as other employees had been invited to attend the hearing.

CA-00056089-003 Payment of Wages

The Respondent denied any contravention of the Legislation. He submitted that he worked 1087 hours in 2022 and 186 hours in 2023 for which he received payment. His last payment was dated 23 February , 2023 at €615 euros .

The Complainant was an erratic attender at work and availed of annual leave without waiting for approval. He was absent from the business from Christmas 2022 to mid-January without explanation. He also left the site on extended toilet breaks of over 1 hr at a time, to the point where the respondent inquired about his health? He said the complainant did not respond.

The Respondent, Mr Mc Keown gave evidence that he understood that the complainant misunderstood that the meal break on site was unpaid as opposed to constituting an illegal deduction in wages.

His annual salary was just short of €50,0000.

CA-00056089-012 Statement of Terms of Employment

The Respondent exhibited a Statement of Terms of employment signed by both parties and dated 21 June 2022.

Mr McKeown submitted that the complainant never raised an issue with this document.

CA-00056089-013 Notification of Change of terms

The Respondent submitted that there were no changes in the statement of terms of employment.

CA-00056089-019 Discrimination on Race

The Respondent wholly opposed the claim of discrimination on race grounds. Mr Mc Keown gave evidence on the positive inter racial cultures in the workplace.

He gave evidence that on 28 January 2023, the complainant had mould in his house. Mr Mc Keown had invited him to stay at his house as a support. He facilitated his attendance at the World Cup

“Our primary and only form of judgement is based on work ethic, willingness to learn and an altogether positive attitude to push our contracts to completion on time “

The Company in Ireland is host to 10 Georgian Labourers

                                                                 6 Brazilians Cleaners

                                                                  4 Brazilian Labourers

                                                                  6 Irish Nationals

                                                              Latvian, Moldovan Nationals

The Site has an appointed Site Welfare Officer and a private drop box for mental health support. The Complainant did not raise any issues of race during the course of his employment.

CA-00056089-020 Equal Pay

The Respondent exhibited a spread sheet which confirmed that the complainant was not denied equal pay on grounds of his race.

Mr Mc Keown gave evidence that the complainant had commenced at the business, without experience.

There were variables of pay, but not linked to race.

CA-00056089-022 less favourable treatment as a fixed term worker

The Respondent submitted that the complainant was employed on a permanent contract and had never been a fixed term worker.

In conclusion, the Respondent submitted that the company reputation was intrinsically important to the business in trading within the construction industry.

Mr Mc Keon argued that the company would have worked with the complainant to resolve his issues, had he raised them within the employment relationship.

He conveyed his disappointment that he had done all in his power to assist the complainant in securing a legitimate standing in Ireland only to have him walk out of the employment, without notice.

He was disappointed in his quest for cash payments.

Evidence of Mr Brian Laverty, Site Supervisor

Mr Laverty recalled the Construction job where he and the complainant worked. He submitted that a good start in employment was followed by irregular attendance both in terms of work attendance and on site working.

On his site checks , he frequently noted the complainant missing from his base and when he sought to discuss the reasons for this , he was ignored .He took annual leave , without permission and while this should have been a disciplinary matter , he acknowledged that he worked around the complainant , but was shocked to realise that the complainant  exhibited signs of dislike for the business as he did not put his shoulder to the wheel to meet deadlines due .

Mr Laverty contended that the complainant had leaned on the company to seek to gain a work permit.

Evidence of Frank Mc Auley, Supervisor.

Mr Mc Auley gave evidence that he had initially got in well with the complainant. He submitted that the complainant had been treated well and no different to any other worker on site. He assisted in his training on site.

The Complainant was noticeably absent from the site, and he was unsuccessful in trying to get him to answer that absence in January 2023.

The Complainants demeanour towards him changed and he became abusive towards him.

The Respondent concluded his presentation by repeating a rebuttal of the claims and a focus on the apparent lack of permission to work in Ireland granted to the complainant.

He sought the claims be dismissed.

This is a case, where I have been requested to make a decision on these 6 complaints.

In reaching my decision, I have read and considered all documentation submitted and evidence adduced by the Respondent.

I am satisfied that the complainant was on full notice of the resumed hearing on November 20 ,2023 and chose not to attend.

He did not file the requested submission and he did not confirm his attendance as requested.

This was at variance to his approach on the first day of hearing, where through his representative, he exhibited a clear willingness and energy to tell his story to the WRC.

So, I am left to wonder what altered in the complainant’s world between October 6, 2023, and November 20, 2023?

I say this as I am mindful of his Brazilian National Status and equally that no issues of legality of contract or otherwise arose before the Respondent was invited back to hearing in the aftermath of the adjournment granted on October 6, 2023.

The issue did not arise during hearing day 1.

My views on this are tied in with the arrival of the respondent submission which pointed to the respondent raising a preliminary issue of whether the complainant was legally employed in Ireland?

I would have liked to have learned more about this part of the employment relationship as neither party has placed any official documents before me in terms of visa application, visa endorsement or support or an eventual granting of permission to work in Ireland.

I am very much in limbo here and am both reluctant and unwilling to jump to conclusions on legality.

I have reflected on the complainant’s absence from the resumed hearing where all supports of interpretation had been made available to him. He did not make an appearance or indeed withdraw his case. He simply stayed away from the hearing, which I find to be an unreasonable action on his behalf.

It is a plain fact that a national from a third country may well face challenges in adjustment in employment in Ireland, either in grappling with the protections of Irish Law and recourse that arises or in relation to any potential that may accompany human trafficking.

For me, the category of a third country national is a special category employee.

I am mindful here of the IHREC March 2023 submission to the Law Reform Commission on compensating victims of crime, which looked briefly on the availability of remedies for irregular migrants.

The National Rapporteur in that document made one of three recommendations. The second is of note here.

A legislative amendment to permit irregular migrant workers access to the WRC and the labour court.

This arises from a contractual right in Ireland being dependant on the existence of a valid legal contract Fás v Abbot at the Supreme Court, 1995.

 Illegality normally renders a contract unenforceable Quinn v. IBRC [2016] 1 IR 1 55

The Supreme Court in Hussein v the Labour Court [2015] IESC 58 in endorsing a decision of the Labour Court in the case of an undocumented worker, Mr Younis (notice party) pointed to a potential for a modern and proportionate analysis of the employment status save for immoral or contra public policy components.

Section 2B of the Employment Permits Acts 2003-2014 seeks to provide a route for migrant employees, without valid immigration permissions, to recover monies owed to them by their employer.

This was considered in T/A Lynam Hotel v Khoosye [2019] 12 JIEC 0408. A case taken by two migrants whose renewal of work permit was delayed by a number of years. The case was sent back to the Labour Court who considered whether the civil remedy outlined in Section 2B of the Employment Permits Acts 2003-2014 was within the scope of the Court.?

In finding that a non-EEA/ Third Country Worker, without valid immigration permission, in seeking a remedy in an employment setting, the Labour Court held that the law presently provides for a course of action at the Ordinary Courts i.e., District, Circuit or High Court and not the Labour Court /; WRC.

It followed in Sobhy v Chief Appeals Office and ors [2021] IESC 81 at the Supreme Court that the contract from which a claim for maternity benefit arose was declared as founded on an illegality and deemed void with PRSI contributions refunded to the parties.

Perhaps these remarks should be read as obiter, incidental remarks, to the facts of the instant case as I was unable to ascertain the true legal standing of the complainant. I merely want to reflect that once the issue of illegality is raised, then the prism in this case would change and would necessitate a response from the complainant, before it could be progressed.

His absence at hearing denied me the opportunity to probe this point further.

While I appreciate that the allegations surrounding an allegation of criminal action by the complainant is live in the respondent’s mind, it cannot have a bearing on my consideration of employment matters. It is a separate investigation.

 I was struck by the casual recruitment process engaged in this case. It appears from the Respondent evidence that the complainant had been working in a series of other companies and came to his gate on site looking for work. The Respondent has assured the hearing that he has since, following WRC Inspection, altered that system of recruitment to incorporate a validation for visa component.

It is always challenging in managing a hearing where only one party is in attendance.

As I am obliged to offer a platform for both parties to feed into my inquiry, in the absence of the complainant, I invited the Respondent if they wish to make a declaration on the events complained of?

What I heard was a selection of responses from the respondent on how the complainant’s behaviour changed during the course of his employment to the point of a series of worrying AWOL incidents.

I would have liked to have heard both parties on this, but it was not to be.

I am satisfied that the complainant decided not to return to hearing on November 20, 2023, but did not notify the WRC of this decision.

I make my decision having considered all evidence placed before me and documentation submitted by both parties.

CA-00056089-003 Payment of Wages Act 1991

Complainant has submitted two varying amounts to ground his claim in respect of a submitted contravention of Section 5 of the Act.

These amounts have varied from €230 to €5,000 in quantum and are not supported by oral evidence by the Complainant.  The bank statement exhibited by the complainant does not carry his name.

The Respondent document confirms payments directly to the Complainant.

I am not clear that the complainant carried permission to work in Ireland and satisfied the provisions for a definition of an employee in Section 1 of the Act.

employee" means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer.

The Respondent expressed a view and did not offer concrete proof that the eventual approval of the complainant’s employment may have carried a retrospective effect. This is conjecture and I cannot rely on it.

The claim for unpaid wages is not well founded for want of evidence and proof of employment status.

CA-00056089-012 Statement of Terms of Employment

I have considered the statement of terms provided by the Respondent in their submission. This document was shared with the complainant and did not generate comment or oral evidence.

The claim for a contravention of Section 3 of the Act is not well founded for want of evidence and proof of employment status.

CA-00056089-013 Notification of Change of terms

The Respondent gave evidence that no changes in the statement of terms occurred. This was not disputed by the complainant.

The claim for a contravention of Section 5 of the Act is not well founded for want of evidence and proof of employment status.

CA-00056089-019 Claim for Discrimination on grounds of race

As there was no appearance by or on behalf of the complainant and no particulars of the claim. I find that by his lack of evidence on both employee status and the burden of proof applicable, the complainant has not satisfied me that he has the locus standi to progress the case.

He has not satisfied the burden of proof required in Section 85 A of the Act. Therefore, that burden does not shift to the Respondent in the case.

The Complainant was not discriminated against on grounds of race.

He has previously withdrawn being a member of the Travelling Community.

CA-00056089-20 Equal Pay

As there was no appearance by or on behalf of the complainant and no particulars of the claim. I find that by his lack of evidence on both employee status and the burden of proof applicable, the complainant has not satisfied me that he has the locus standi to progress the case. He has not furnished any details of a Comparator.

He has not satisfied the burden of proof required in Section 85 A of the Act. Therefore, that burden does not shift to the Respondent in the case.

The Complainant was not discriminated against on grounds of race on pay.

CA-00056089-022 Fixed Term Legislation

The Complainant introduced this claim as a fixed term worker. The Respondent disputed this claim and exhibited a contract which stated:

Basis of Employment: Your employment is on a permanent basis.

The complainant did not attend the hearing to give evidence in his case.

Section of the Act provides.

Conditions of employment for fixed-term employees.

6.— (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

The claim for a contravention of Section 6 of the Act is not well founded for want of evidence and proof of employment status.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00056089-003 Payment of Wages Act 1991

Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with the Section 5 of that Act.

The claim is not well founded.

CA-00056089-012 Statement of Terms of Employment

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the claims submitted in accordance with the provisions of Sections 3 and 5 of that Act.

The claim is not well founded.

CA-00056089-013 Notification of Change of terms

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the claims submitted in accordance with the provisions of Sections 3 and 5 of that Act.

The claim is not well founded.

CA-00056089-019 Claim for Discrimination on grounds of race

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

 As there was no appearance by or on behalf of the complainant and no particulars of the claim. I find that by his lack of evidence on both employee status and the burden of proof applicable, the complainant has not satisfied me that he has the locus standi to progress the case.

He has not satisfied the burden of proof required in Section 85 A of the Act. Therefore, that burden does not shift to the Respondent in the case.

The Complainant was not discriminated against on grounds of race.

CA-00056089-20 Equal Pay

As there was no appearance by or on behalf of the complainant and no particulars of the claim. I find that by his lack of evidence on both employee status and the burden of proof applicable, the complainant has not satisfied me that he has the locus standi to progress the case. He has not furnished any details of a Comparator.

He has not satisfied the burden of proof required in Section 85 A of the Act. Therefore, that burden does not shift to the Respondent in the case.

The Complainant was not discriminated against on grounds of race on pay.

CA-00056089-022 Fixed Term Legislation

Section 14 of the Protection of Employees (Fixed Term Work, Act, 2003 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 6 of that Act.

The claim Is not well founded.

Legal Status of Complainant, no attendance at hearing