Complainant

Respondent

Parties

Giri  Kurichiyath

TJX Ireland Unlimited Company

Representatives

  Self

Jason Murray BL instructed by Lewis Silkin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034524-001

07/02/2020

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

CA-00034524-002

07/02/2020

The complainant was employed as a loss prevention officer (security guard) by the respondent company.  He commenced employment as a sales associate on 04 November 2016 and subsequently moved to the post of loss prevention officer.  He worked 30 hours per week and was paid €734 gross per fortnight.  His employment was terminated on 19 October 2019. The complainant submitted two complaints to the Workplace Relations Commission on 07 February 2020. 

The first complaint is of discrimination by reason of his race with the most recent date of discrimination being stated as 19 October 2019.  The second complaint is of unfair dismissal on 19 October 2019. 

The respondent rejects the complaint of discrimination stating the complainant has not been discriminated against on the grounds of his race or any other ground of discrimination.  The respondent rejects the complaint of unfair dismissal and asserts the complainant’s employment was terminated in circumstances where his continued employment would have constituted an offence under the Employment Permit Acts 2003 (as amended).

Preliminary Issue

The respondent raised a preliminary issue about the complaint submitted under the Employment Equality Act, 1998.  The issue and decision are set out in the first section below.

It is noted that the complainant had submitted a complaint of discriminatory dismissal and a complaint of unfair dismissal.  Section 101(4)(a) of the Employment Equality Act 1998, does not permit parallel complaints to be pursued.  The complainant was requested to advise the Commission, in writing, if he wished to withdraw the complaint under the Unfair Dismissal Act.  As the complainant had not responded to this request within 41 days the complaint of discriminatory dismissal under the Employment Equality Act was deemed to have been withdrawn. 

The respondent submitted that the Adjudication Officer’s jurisdiction was limited to the complaint submitted pursuant to the Unfair Dismissals Act, 1977 as the complainant had submitted a complaint on 13 September 2019 making the (in essence) same legal claims regarding race discrimination.  The complainant’s previous claims were subject to a decision dated 21 May 2020 in favour of the respondent.  The respondent noted that decision had not been appealed to the Labour Court.

It was submitted that the Adjudication Officer did not have jurisdiction to determine matters which were already the subject of a decision by an Adjudication Officer of the Workplace Relations Commission.

The complainant acknowledged that the previous decision had dealt with the issue of discrimination relating to promotion but stated that there were issues between 14 September and 19 October 2019 that he wished to have investigated.  The new complaint alleged harassment on the grounds of race relating to a disciplinary process, the use of the terms misconduct / gross misconduct.

I considered the submission of the respondent and the response of the complainant.  As the complainant acknowledged that the previous adjudication decision had dealt with the complaint of discrimination, on the grounds of race, relating to promotion I decided that that issue could not be revived in this hearing.  The complaint of harassment was a new complaint concerning the period 14 September to 19 October 2019.  I have decided it was within my jurisdiction to investigate the complaint of harassment in the period 14 September to 19 October 2019.

The respondent operates retail outlets across Ireland, including the TK Maxx retail chain.  The respondent is a subsidiary of a wider group company which employs a multi-national workforce across Europe, United States, Canada and Australia.  The respondent applies the highest standards of dignity and inclusivity in the workplace.

The complainant is an Indian national who was initially employed as a sales associate in October 2016.  In May 2018 the complainant transferred position to become a Loss Prevention Officer.  He was employed to work 30 hours per week and was paid €11.50 per hour.

The complainant’s employment was terminated by reason of his inability to provide any evidence of him holding appropriate permission (immigration stamp or employment permit) to work in the State beyond 19 October 2019.

The complainant had been in possession of a stamp 1G immigration permission that expired on 19 October 2019.  After that day it would have been illegal for the respondent to continue to employ the complainant if he did not have a valid permission to stay and work in the State.

The Employment Permits Act 2003 to 2020 provides that employing a person who does not hold a valid permission to work in the State is a criminal offence.  An employer who breaches this Act may be prosecuted and may be fined up to €250,000.  Accordingly, it is a fundamental precondition and continuing condition of employment that every candidate for employment with the respondent provides the requisite evidence proving they have permission to work in the State.

In order to ensure compliance with the legislation the respondent has in place a Right to Work guide that sets out a manager’s responsibility and obligations concerning the employee’s permission to work in the State.  A copy of the guide was provided with the submission.  As set out in the guide the respondent maintains a record, on an internal HR system, of all employees who must provide evidence of a stamp, visa or employment permit, along with the relevant expiration date.  The internal HR system sends reminders or prompts to managers about the expiration dates of the visa or permit.

When a manager receives a prompt, they are then required to have a discussion with the relevant employee to remind them that they must update or renew their permission to work in Ireland.  The complainant was reminded of this requirement in 2018 and he produced the relevant documents.

On 08 August 2019 the HR system notified area managers of upcoming expiration dates for relevant employees.  The complainant was included in this list as his permission was due to expire on 19 October 2019. 

On 24 September 2019 the complainant’s line manager, Mr McC, met the complainant at an informal meeting and discussed the right to work requirements.  The complainant stated he would be applying for an extension of his immigration stamp, but he needed to satisfy a €30,000 per annum salary minimum.  The complainant requested an increase in his working hours to 40 hours per week for him to satisfy the salary requirement.  The line manager agreed to check if any increase in hours could be offered but he made it clear the right to work requirements were the responsibility of the complainant.  A copy of the note of the meeting was provided with the submission.

On 30 September 2019 there was a further informal discussion, between the line manager and the complainant, about the right to work permission. The complainant was offered rest days to allow him time, if required, to attend appointments in relation to his application for an extension of permission to work in the State.   A copy of the note of the meeting was provided with the submission.

On 09 October 2019 a further discussion took place between the line manager and the complainant.  At this time the line manager, as required by the Right to Work guidelines, referred to a letter to be issued to the complainant setting out the process and potential consequences if evidence of permission to work in the State was not provided in time.  The letter, dated 13 October 2019, noted that it was the complainant’s responsibility to keep the respondent updated on progress with his application for his visa extension.  Enclosed with the letter was a Right to Work checklist of the documents that the respondent considered acceptable evidence of an employee’s right to work in the State.  The letter also stated that if no update was received the matter would be dealt with in accordance with the respondent’s disciplinary policy, a copy of which was enclosed.

The purpose of the meeting was to ensure the complainant had the required permission to work in the State.  The reference to the disciplinary policy was not to consider the matter as misconduct or ill-discipline but to ensure fair procedures are followed in circumstances where an employee’s employment is at risk of termination if they are not in possession of valid permission to work in the State.

By 17 October 2019 the complainant had not produced evidence of being granted an extension to his permission to work in the State.  In accordance with the Right to Work guideline the complainant was issued with a letter inviting him to attend a disciplinary meeting on 19 October 2019.  The letter sated “As you have not yet provided us with your updated documents confirming your ongoing eligibility to work in ROI, you’re invited to a disciplinary meeting for the allegation of not having valid right to work documents.”  The letter was issued by Loss Prevention Manager, Mr S.

In reply to this letter the complainant sent an email to Mr S in which he acknowledged that if he did not have the right to work stamp renewed on his visa his employment would be terminated as that was the law.  However, he objected to the matted being dealt with in accordance with the disciplinary procedure as he regarded this as unfair and insensitive.

On 19 October 2019 the complainant met with Mr S.  The complainant’s concern that the matter was being dealt under the disciplinary procedure was acknowledged and he was assured the procedure was being followed to ensure that fair procedures were applied where the termination of an employee’s employment was a possibility.  The complainant was unable to provide documents proving he had continued permission to work in the State.  The complainant did produce a letter from the Department of Justice and Equality confirming that his application had been received.  Mr S adjourned the meeting to consider the position and the document produced.

Mr S reconvened the meeting approximately an hour later having considered the matter and reviewed the letter provided by the complainant.  The respondent determined that the letter from the Department of Justice and Equality could not be accepted as evidence that the complainant continued to have permission to work in the State.  The letter only confirmed the complainant had applied for an extension of permission and that the application had been received by the Department.  Consequently, the respondent notified the complainant that it had no alternative but to terminate his employment.  A copy of the note of the meetings, signed by Mr S and the complainant, was provided with the submission.  The complainant was provided with a letter confirming his employment was being terminated because he had not been able to provide valid documents confirming he had permission to work in the State.  The letter stated the complainant had a right to appeal this decision.

By email, dated 25 October 2019, the complainant appealed the decision to terminate his employment.  The complainant based his appeal on two grounds.  The first ground was that the dismissal was unfair as the letter from the Department of Justice and Equality acknowledging his application was pending did not mention that he could not work during the period the application was pending. The complainant acknowledged his visa expired on 19 October 2019.  The second ground of appeal was that the meeting of 19 October 2019 was held under the disciplinary framework, which did not mention his current situation (the disciplinary policy contained references to misconduct/gross misconduct).  He believed the process was not followed correctly.  The complainant also stated in his grounds of appeal that he was not given the opportunity to resign but rather was forced to attend the disciplinary meeting, which he asserted indicated malicious intent.

The appeal meeting took place on 01 November 2019.  The meeting was conducted by the District Loss Prevention Manager, Mr J.  The appeal decision was issued in writing to the complainant on 08 November 2019.  Mr J did not uphold the first ground of appeal as he held that the complainant’s right to work visa expired on 19 October 2019 and he could not provide evidence to support his continued right to work in the State in line with legislative requirements.  He further held that the letter from the Department of Justice and Equality simply acknowledged that an application by the complainant had been received and was being processed, it was not a right to work document.  On the second ground Mr J acknowledged that the immigration stamp expiring was not necessarily a disciplinary issue and that the meeting should have been referred to as a meeting to discuss his right to work.  The process used was to ensure the complainant had a full and fair process before any decision was taken to terminate his employment.  Mr J reiterated that the complainant was not dismissed for misconduct but because it would be illegal for the respondent to continue to employ him when he had not provided evidence of his right to work in the State.

Mr J further noted that the complainant could have resigned at any time, as was his right.  This had not been raised or referred to at any stage other than in the appeal hearing.  Mr J also noted that the complainant had been paid in full for his final day, 19 October 2019, and it would have been illegal for the respondent to continue to employ him after that date because he did not have a valid permission to work in the State after that date.

Mr J confirmed the dismissal effective 19 October 2019.

Legal Submission

Claim under the Employment Equality Act

The complainant has claimed he was discriminated against on the grounds of his race.  It is noted the complainant has not stated who his comparator is.  The respondent is a stranger as to whom the complainant is alleging, he suffered less favourable treatment.  The respondent denies that the complainant was discriminated against on the grounds of race and asserts he did not suffer any discrimination during his employment.

The respondent submits that section 85A of the Act requires the complainant to establish facts from which it may be presumed that prohibited conduct has occurred in relation to him.  In considering the evidential burden on the complainant the respondent cited Southern Health Board v Mitchell [2001] 12 E.L.R. 201 and Valpeters v Melbury Developments Limited [2010] E.L.R. 64 and Two Named Complainants v A Catering Company [2018] 29 E.L.R. 105. 

The respondent submits that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  While the fact will vary from case to case the facts must be of sufficient significance to raise the presumption of discrimination. However, the facts must be established on credible evidence.  It is submitted that as a matter of fact and law the complainant’s submission is made up of mere speculation or assertions, unsupported by any evidence.

The complainant’s assertion on his complaint form that “in retaliation for considering legal action, on 19 October, TK Maxx fired me from employment charging gross misconduct despite not having broken any laws set down by the country or the company” is denied.  The complainant was not victimised or harassed or treated unlawfully.  The complainant’s employment was terminated on 19 October 2019 by reason of his inability to provide any evidence of him holding appropriate permission to work in the State beyond that date. 

Claim under the Unfair Dismissal Act, 1977

The respondent refers to Sections 6(1), (4) (d), and (6) of the Act:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

(4) Without prejudice to the generality of subsection (1) of this section, 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:

(a) …

(b) …

(c) …

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The respondent submits that the Act deems a dismissal not to be unfair where it results wholly or mainly from the employee being unable to work or continue to work in a position they held, without contravention by them or by their employer of a duty or restriction imposed by or under statute or instrument made under statute.  At the time of his employment the complainant was the recipient of a Stamp 1G granting him permission to work in the State until 19 October 2019.  The complainant’s employment was terminated on 19 October 2019 because of his failure to furnish proof of his continued permission to work in the State beyond this date.  Prior to terminating the complainant’s employment, the respondent afforded him every opportunity to rectify his employment permission status, however, unfortunately the complainant did not obtain appropriate permission which would have allowed him to continue to work in the State.

The respondent submits that had the complainant been permitted to continue to work beyond the expiration date of his Stamp 1G his employment would have been tainted by illegality.  The respondent refers to the Employment Permit Acts, 2003 (as amended) section 2(1), (3):

(1) A foreign national shall not—

(a) enter the service of an employer in the State, or

(b) be in employment in the State, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(3) A person who contravenes subsection (1) (2) or (2C)] or fails to take the steps specified in subsection (2B)] shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) if the offence is an offence consisting of a contravention of subsection (2) or (2C) or a failure to take the steps specified in subsection (2B), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

The effect of the provisions of the 2003 Act is that a foreign national may not enter the service of an employer or be in employment in the State, unless they have an employment permit granted by the Minister.  It is an absolute offence for a foreign national to be in employment without permission to work in the State.

It is submitted that the respondent was legally prohibited from continuing to employ the complainant otherwise than in accordance with the conditions attaching to his Stamp 1G, which expired on 19 October 2019.

Section 6(7) of the Unfair Dismissals Act provides as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

It is submitted that the respondent’s conduct leading to the complainant’s dismissal was always entirely reasonable.  Prior to terminating the complainant’s employment, the respondent afforded him every opportunity to rectify his employment status.

Conclusion

The complainant was not discriminated against on the grounds of his race or any other ground.

The complainant was a valued member of staff and was at all times treated with the upmost respect in the workplace.  Whilst the respondent empathises with the complainant because he cannot (at present) legally work in the State, the respondent has not discriminated against him as alleged or at all.

In circumstances where the complainant has not raised a prima facie case of discrimination, the respondent respectfully requests the Adjudication Officer not to uphold the complainant’s claim.

The complainant’s employment was terminated in circumstances where his continued employment, under the 2003 Act, would have constituted an offence.  The complainant was given every opportunity to provide documentation evidencing his continued permission to work in the State, but he could not do so.  Prior to the decision to terminate his employment, the complainant was afforded all necessary and appropriate fair procedures available to him to ensure any decision on his continued employment was reached fairly and reasonably.

The respondent respectfully submits the complainant’s claim of unfair dismissal should not be upheld.

The respondent submitted that the complainant was under a duty to mitigate against his financial loss following dismissal.  The respondent had sought details of any financial loss and all attempts to mitigate such loss.  The respondent had not received any response to their request.

The complainant was employed by the respondent from 04 November 2016 to 19 October 2019.  He was initially employed as a sales associate and moved to the post of Loss Prevention Officer in May 2018.  The complainant required appropriate valid permission to work in the State. He had at first held a student visa and later held a Stamp 1G immigration permission.  The Stamp 1G is issued to third level graduates after they have finished their studies and grants them permission to work in the State for a defined period.  The complainant’s permission was due to expire in October 2019 and he applied to the Department of Justice for an extension.

The complainant stated there had been no issue in 2018 with his employer when his visa was being renewed.  In 2019 the complainant had applied for a promotional post, but he was not successful.  A solicitor, acting on behalf of the complainant, wrote to the respondent on 16 September 2019 concerning the competition for promotion.  On 24 September 2019 the complainant’s line manager, Mr McC, asked the complainant about the status of his visa.  This was unnecessary as the details of his visa were already on file.

On 30 September 2019, Mr McC again spoke with the complainant about the status of his visa.

On 09 October 2019, Mr McC issues a warning to the complainant about his visa renewal.  The complainant alleges that he was warned that if his visa is not renewed the respondent will take disciplinary action and fire him for misconduct/gross misconduct.  The complainant was in shock and raised an objection to the invoking of the ‘misconduct framework’ as he was not in breach of any contract or law.  The complainant was due to have an interview the following day for a promotional post.  He was not successful at the second-round interview for the promotional post.

On 14 October 2019, the complainant sent an email to the HR department expressing concern at a misconduct warning and asking advice.  He did not receive a reply.

On 17 October 2019, the complainant was ‘invited’ to a disciplinary hearing to take place on 19 October 2019.  The invitation contained a warning that if he did not attend the hearing it would take place in his absence.

On 19 October 2019, the complainant attended the disciplinary hearing and was fired.  The complainant asserts that he was fired even though his visa had not expired, and he had submitted a letter from the Department of Justice and Equality confirming that his appeal for a work visa was under consideration.  The complainant asserts that he was not in breach of any code, contract or law at the time of his dismissal.

The complainant, in his oral testimony, stated that there was no issue about his visa renewal in 2018 and that in 2019 the changed procedure had the objective of harassing and victimising him.  The warning letter had been given to him on the day before his interview for promotion.  The Right to Work checklist that was provided to him did not say anything about a disciplinary process.  The process followed in 2019 was in retaliation for him sending a solicitor’s letter. 

The complainant asserts that he was harassed by the respondent using a disciplinary process for misconduct / gross misconduct and that he was unfairly dismissed in circumstances where he had not breached any contract, policy or law.

The complainant sought compensation for loss suffered by his unfair dismissal.

CA-00034524-001

Complaint submitted under section 77 of the Employment Equality Act, 1998.

Legislation

The complainant submitted a complaint of discriminatory treatment under section 6(1) and (2) (h) of the Act:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

 (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

 (i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

 (iv) is imputed to the person concerned,

(b) …

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) …(g) …

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)

At the hearing the complainant acknowledged that all issues concerning his application for promotion had been dealt with in a previous adjudication decision.  He stated that the current complaint concerned harassment related to the use of ‘gross misconduct’ andthe disciplinary framework in dealing with continuing right to work in the State.  Therefore, the only complaint of discriminatory treatment that I must consider is a complaint of harassment, on the grounds of race, that is alleged to have occurred between 13 September 2019 and 19 October 2019.

Harassment is described in section 14A (7) as

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Burden of Proof

Section 85A of the Act provides as follows:

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) …

(3) …

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment, …

The complainant must prove, on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are satisfactorily established, and they are of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove the contrary.   See the decision of the Labour Court in Mitchell v Southern Health Board [2001] 12 E.L.R. 201. Further in Melbury Developments Limited v Valpeters [2010] E.L.R. 64 the Labour Court held that the facts must be established on credible evidence.  I must consider whether the complainant has established facts, on credible evidence, from which discrimination may be presumed.

Evidence

The Complainant

The complainant gave evidence on affirmation.  In his testimony the complainant stated that when he was first employed in the State, he had held a student visa.  Later this was changed to a Stamp 1G permission, which is a graduate visa.  In 2018 there had been no issue with the respondent when his visa was due for renewal.  In 2019 the matter of his right to work was, he alleged, handled differently and it was his view that the commencement of disciplinary proceedings, when he had not done anything wrong, was harassment.  He noted that he had been given a letter about a disciplinary procedure on the day that he was being interviewed for a promotional position.  He stated that he had sent an email to HR on 14 October 2019 raising the issue of the incorrect use of the disciplinary procedure, but he had not received a reply.

The complainant stated that he had been give a copy of the Right to Work checklist and a copy of the Disciplinary Policy.  He noted that the Right to Work checklist did not say anything about a disciplinary procedure.  He also noted that the Disciplinary Policy did not refer to right to work issues but did refer to misconduct/gross misconduct.  He was of the view that the inclusion of such terms had the objective of harassing him.

The complainant had asked why there was a disciplinary hearing when he had not broken any rules.  He had provided a copy of his letter from the Department of Justice and Equality stating that he his application had been received.  He had stated at the disciplinary meeting that the status quo applied, and he could continue to work as the letter did not say he could not continue to work.

The complainant stated that he was discriminated against by the responding using disciplinary procedures when he had not broken any law and that was harassment. 

The complainant in his closing statement repeated that the procedures followed in 2018 and 2019 was different.  The process in 2019 was he submitted malicious with the intent to damage his name.  He stated he had no support from anyone, ever.

Counsel for the respondent made the following points:

·       In 2018 the issue of the complainant’s right to work documents had been dealt with at informal discussion because the required documents were provided by the complainant and no further action was required.

·       The complainant had not provided a copy of the email he stated he had sent to HR on 14 October 2019.  The respondent did not have a record of this email.

·       The respondent had not used the term misconduct or gross misconduct in their communications to the complainant.  The letter dated 13 October 2019 had as the subject line Right to Work Upcoming Expiry.  The letter of 17 October 2019 has as the subject line Disciplinary Other Substantial Reason RTW.  The letter of termination dated 19 October 2019 had the subject line Right to Work.  The outcome of the appeal letter dated 08 November 2019 has as its subject line, Right to Work.

·       The respondent had not made an allegation of misconduct or gross misconduct against the complainant.  The procedure followed was to ensure the complainant was aware of the issue and had the opportunity to rectify the position by or on the date his permission to work in the State expired.

Finding

The complainant alleges he was discriminated against on the grounds of race and treated differently to others in that he was harassed when a disciplinary procedure was established.  The complainant acknowledged he was spoken to by his line manager about the upcoming expiry of his permission to work in the State. 

The respondent provided notes of the informal discussions between the manager Mr McC and the complainant that took place on 24 and 30 September and 09 October 2019.  These notes were not challenged by the complainant.  It is clear from the notes that the complainant was made aware it was his responsibility to update the respondent on his application for an extension of his right to work in the State.  The complainant was advised he would be facilitated with rest days if he needed to attend meetings about his application.

The complainant provided a letter from the Department of Justice and Equality that confirmed his application for an extension of his permission to work had been received.  The letter did not grant permission and clearly states a decision on his application would be sent by post.  This wording clearly indicates that no decision had been made at the date the letter was issued about an extension of the complainant’s visa.  The complainant however was of the view that because this letter did not state that he could not work he was therefore entitled to continue working.  I am satisfied that the complainant was incorrect in his interpretation of the letter.

I am satisfied that the complainant had permission to work in the State, but that permission expired on 19 October 2019.  The complainant in his email, dated 17 October 2019, to the respondent stated “Dear Mr Sweeney, Thanks for the email. I understand the legalities involved here.  If I do not have the right to work stamp renewed on my Visa, I will be terminated from my current role as an LPO. That's the law and that's fine.”  It is clear from this that the complainant understood the respondent could not legally continue to employ him after his visa expired.

The issue the complainant goes on to raise in that email is that the respondent would use their disciplinary procedure in dealing with his right to work in the State.  There is no reference to right to work documents in the Disciplinary Policy but, as with most disciplinary policies, there is a reference to misconduct and gross misconduct.  I note from the documents provided by the respondent that there was no allegation that the complainant had engaged in misconduct or gross misconduct.  In notes of meetings and letters to the complainant the subject was always about the complainant’s right to work. 

I further note from documents provided by the respondent that all employees who were required to hold valid right to work documents in order to work in the State were notified of upcoming expiry date using the same process.  The HR system notified managers of the upcoming expiry dates of right to work documents in order that they could remind the relevant employee of their responsibility to update their permission to continue to work in the State.  Some of the documents provided included details (names redacted) of other employees who, like the complainant, were approaching the expiry date of their visa.

I note that at the disciplinary hearing the complainant was told there was no allegation of misconduct or gross misconduct.  I noted that in the outcome of the appeal letter it was reiterated that there was no allegation of misconduct or gross misconduct, but it was acknowledged that the terminology used was inappropriate.

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that there has been discrimination in relation to him on the ground of race. He has not established a link between his race and the process followed by the respondent concerning his permission to work in the State. 

The complainant has not established that he was treated differently to any other employee who was required to have a valid permission to work in the State.  The respondent was required to ensure that all employees who needed permission to work in the State had such valid permission while they were in their employment.  I am satisfied that the respondent’s Right to Work procedure was a fair and reasonable way of ensuring employee and employer complied with the legislation concerning permission to work in the State. 

The respondent did not engage in conduct that had the purpose or effect of violating the complainant’s dignity. Based on the evidence presented I am satisfied that the complainant was at all times treated with respect and dignity in the workplace.

The complainant has not met the requirements of Section 85A of the Employment Equality Act in order to shift the onus of proof to the respondent.  I am satisfied, on the balance of probabilities, that the complainant was not discriminated against by respondent on the ground of race.

CA-00034524-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977

The complainant submitted a complaint of unfair dismissal on 02 February 2020.  He had been dismissed on 19 October 2019.

The respondent cites sections 6(1), (4)(d) and (6) of the Act to submit that a dismissal is deemed not to be an unfair dismissal where the dismissal results wholly or mainly for the employee being unable to work, or continue to work, in a position they held without contravention by them or by their employer of a duty or restriction imposed by or under statute or instrument made under statute.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

(4) Without prejudice to the generality of subsection (1) of this section, 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:

(a) …

(b) …

(c) …

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

It is common case that when the complainant was employed by the respondent, he held a valid permission to work in the State.  That permission expired on 19 October 2019.  The respondent submits that the complainant’s employment was terminated due to his failure to furnish proof of his continued permission to work in the State beyond 19 October 2019.

The respondent submits that the Employment Permits Act, 2003 (as amended) requires a foreign national to have an employment permit granted by the relevant Minister in order to work in the State.  Therefore, it is submitted that the respondent was prohibited by law from continuing to employ the complainant otherwise than in accordance with the conditions attaching to his visa, which expired on 19 October 2019.

Evidence

Complainant’s Line Manager

The complainant’s direct line manager, Loss Prevention Manager, Mr McC, gave evidence on affirmation.  He stated the procedure concerning all employees who required permission to work in the State was that the line manager would be notified by the HR system of the upcoming expiry date of the relevant permission.  The Line Manager is then required to have an informal discussion with the employee to remind them of their obligation to update their permission to continue to work in the State. 

In 2018 Mr McC had such informal discussion with the complainant.  There was no need for a further formal process as the complainant had provided the required permission to continue to work in the State.

In 2019 Mr McC had received the notice of upcoming expiry from the HR system and he had an informal discussion with the complainant.  The first notice was 90 days before the expiry in July 2019.  At the complainant’s mid-year review meeting on 10 September 2019 Mr McC asked for an update on the complainant’s visa extension.  Further discussions took place on 24 and 30 September 2019.  Mr McC stated that during those discussions the complainant was made aware that it was his responsibility to update the respondent on progress with his visa application and he offered to facilitate the complainant with rest days if he needed to attend meetings with the Department of Justice concerning the application.

Mr McC again met with the complainant on 09 October 2019.  He wished to clarify with the complainant what progress had been made, if any, and to confirm whether the expiry date of the then current visa was 17 or 19 October 2019.  The expiry date was subsequently confirmed as being 19 October 2019.  Mr McC stated that he went through the Right to Work checklist and explained that if there was no update provided by the complainant, he would be called to a disciplinary meeting about his right to work in the State.  The complainant was issued with a letter, dated 13 October 2019, concerning his Right to Work – Upcoming Expiry.

Mr McC told the complainant that he would be on annual leave from 17 October 2019 and if there was no update before then the matter would be handled by another Loss Prevent Manager, Mr S. 

Mr McC confirmed that there were no disciplinary issues arising with the complainant.  The only issue was his right to work visa.

In response to questions from the complainant Mr McC stated that the process in 2018 was the same as in 2019, starting with an informal discussion of the upcoming expiry of the permission.  However, as the complainant had provided the required documents in 2018 there was no need for any further follow-up.  Mr McC confirmed that there were no allegations of misconduct against the complainant the only issue was the right to work permission.

Loss Prevention Manager (Mr S)

Mr S gave evidence on affirmation.  He stated he had become involved when Mr McC had phoned him about the complainant’s right to work visa which was due to expire on 19 October 2019, a time when Mr McC would be away on leave.  Mr S had not been involved in the informal process.  As the complainant had not provided an update on his visa application by 17 October 2019, two days before the expiry date, Mr S sent a letter to the complainant.  The subject of the letter was Disciplinary – other substantial reason RTW.  The complainant was invited to attend a disciplinary meeting on 19 October 2019.

Mr S stated that the use of the disciplinary procedure was to ensure the complainant had the benefit of a fair process.  The letter stated he could be accompanied to the meeting, but he had attended unaccompanied.  At the meeting there was a note taker present.  The complainant was asked for an update on his visa application.  The complainant had provided a letter from the Department of Justice and Equality.  That letter stated that an application had been received by the Department.  Mr S stated that the complainant was adamant that he had a right to continue working while his application was ongoing.  Mr S took a break to consider the letter and the complainant’s statement. 

Mr S decided that as the complainant could not provide any document confirming his right to work, he had no alternative but to dismiss him.  A letter of dismissal was issued to the complaint that day.  It included a statement that he had the right to appeal the decision to dismiss him.

In reply to a question from the complainant Mr S stated that the decision to dismiss was because there was no proof of the complainant’s right to continue to work.  It was not a decision based on an allegation of wrongdoing.

District Loss Prevention Manager (Mr J)

Mr J was the appeal officer as he is a higher grade then Mr McC and Mr S.  He gave evidence on affirmation.

The complainant submitted a notice of appeal on 25 October 2019 and the appeal was heard by Mr J on 01 November 2019.  Mr J stated that the grounds of appeal were set out in the email of 25 October 2019.  The complainant was not represented at the hearing.

Mr J stated the complainant confirmed he had applied to the Department of Justice and Equality for an extension of his permission to work in the State.  He produced a copy of the letter from the Department acknowledging receipt of his application.  He was not able to provide anything further to the document provided on 19 October 2019.  There was no progress he could report with his application.  However, the complainant was of the view that he could continue to be employed while his application was pending.

Mr J stated that the process followed was to ensure the complainant was aware of his responsibility to update the respondent on his right to work permission and had the benefit of a fair process before any decision was taken in relation to his continued employment. 

Mr J stated that the complainant asserted he had not been given the opportunity to resign.

Mr J wrote to the complainant on 08 November 2019 setting out the outcome of the appeal.  The decision to dismiss was upheld as the complainant could not provide evidence of a valid right to work permission.  There had been no change since 19 October 2019 when his previous permission had expired.  Mr J upheld the complaint about the terminology describing the process as a disciplinary procedure.  While at all times the meetings were about the complainant having the appropriate valid permission to work in the State it should have been clearer that there was no allegation of misconduct or gross misconduct.  Mr J had reiterated that there was no allegation of misconduct or gross misconduct against the complainant.

Complainant

The complainant stated that he had permission to work in the State.  He had provided the respondent with evidence of his application to the Department of Justice and Equality for an extension of his visa beyond 19 October 2019.  It was his view that he was entitled to continue working in the State while his application was pending. 

The complainant stated that his dismissal was unfair as he had not broken any rules, contract or law.  The use of the disciplinary procedure in 2019 was different to the procedure followed in 2018.  The complainant stated the use of this procedure was in retaliation for him sending a solicitor’s letter concerning his application for promotion.  The complainant stated he was unfairly dismissed when he had not breached any law.

Finding

I have considered carefully the written and oral submissions presented to me.  I find that the complainant had permission to work in the State until that permission expired on 19 October 2019.  I accept the respondent’s evidence that in advance of the expiry date it commenced a process with the complainant to remind him of his responsibility to update his right to work permission.

That process commenced with a notice to the complainant’s manager from the HR system that the expiry date was upcoming in 90 days.  Thereafter, the manager held at least three informal discussions with the complainant about his visa.  The complainant was aware, as acknowledged in his email of 17 October 2019, that it would be illegal for the respondent to continue to employ him without a valid visa.

The complainant provided the respondent with a copy of a letter from the Department of Justice and Equality that confirmed that an application for an extension of his visa had been received by the Department.  I do not accept the complainant’s argument that the fact that it was not explicitly stated in that letter that he could not continue to work while the application was pending gave him an entitlement to continue to work.  I am satisfied that the Employment Permits Act 2003 (as amended) requires a foreign national in employment in the State to hold a valid permit granted by the Minister.

I am satisfied that it would have been illegal for the respondent to continue to employ a foreign national who was not in possession of a valid permit granted by the Minister.

I accept the evidence of the respondent’s witnesses that the procedure following in this case is the same procedure applied to all foreign nationals employed by the respondent in this State.  The respondent has in place a Right to Work policy that sets out what is required and a procedure to be followed to ensure all employees are reminded, well in advance of the expiry date, of their responsibility to hold a valid permit to work in the State. 

Having reviewed all the documents provided I am satisfied that there was no allegation made against the complainant of misconduct or gross misconduct.  In all the documents the subject is the complainant’s right to work. 

The complainant objected to the disciplinary policy being used to deal with his right to work issue, as he had done nothing wrong.  I accept that the complainant had not engaged in any misconduct or gross misconduct, and I acknowledge that the respondent accepted this point and subsequently amended their process.  I also accept that the respondent had used the disciplinary process to ensure that fair procedures were followed in circumstances where an employee’s employment could be terminated.  I note that the complainant was on notice that the issue being discussed was his right to work documents, that he was told he could be accompanied to the meeting on 19 October 2019 and that he had a right of appeal.

I am satisfied that the only reason that the complainant was dismissed was that his right to work permission expired on 19 October 2019, and that he did not have a valid permission to work in the State beyond that date.  Therefore, it would have been illegal for the respondent to continue to employ him after that date.  I am satisfied that the respondent gave the complainant the opportunity to provide it with valid right to work documents to work in the State and that he was unable to provide such documents.  I am satisfied, on the evidence presented, that the respondent followed a fair procedure before taking the decision to terminate the complainant’s employment.   In those circumstances I find that the complainant was not unfairly dismissed.

CA-00034524-001

Complaint submitted under section 77 of the Employment Equality Act, 1998.

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that there has been discrimination in relation to him on the ground of race.  He has not established a link between his race and the process followed by the respondent concerning his permission to work in the State. 

The complainant has not established that he was treated differently to any other employee who was required to have a valid permission to work in the State.  The respondent was required to ensure that all employees who needed permission to work in the State had such valid permission while they were in their employment.  I am satisfied that the respondent’s Right to Work procedure was a fair and reasonable way of ensuring employee and employer complied with the legislation concerning permission to work in the State. 

The complainant has not met the requirements of Section 85A of the Employment Equality Act in order to shift the onus of proof to the respondent. I am satisfied, on the balance of probabilities, that the complainant was not discriminated against by respondent on the ground of race.

CA-00034524-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977

I am satisfied that the only reason that the complainant was dismissed was that his right to work permission expired on 19 October 2019, and that he did not have a valid permission to work in the State beyond that date.  I am satisfied, on the evidence presented, that the respondent followed a fair procedure before taking the decision to terminate the complainant’s employment.   In those circumstances I find that the complainant was not unfairly dismissed.

Race Discrimination

Harassment

Unfair Dismissal