ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030691
Parties:
| Complainant | Respondent |
Parties | Henrique Resende | Herberton Leisure Centre |
Representatives | Hilary Bizumuremyi Migrant Rights Centre Ireland ( MRCI) |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040854-001 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040854-002 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040854-003 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040854-004 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040854-005 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040854-006 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040855-001 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040855-002 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040855-003 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040855-004 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040855-005 | 07/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040855-006 | 07/11/2020 |
Date of Adjudication Hearing: 23/03/2023
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
On the 7th November 2020 the Complainant referred a number of complaints to the Workplace Relations Commission pursuant to:
- Section 7 of the Terms of Employment (information) Act, 1994,
- Section 27 of the Organisation of Working Time Act, 1997,
- Section 77 of the Employment Equality Act, 1998,
- Section 8 of the Unfair Dismissals Act, 1977, and
- Section 12 of the Minimum Notice and Terms of Employment Act, 1973.
In accordance with Section 41 of the Workplace Relations Act, 2015 and following referral of the matters to me by the Director General, the complaint was scheduled for hearing on 11th February 2022, at which time I gave the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant. The hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI359/2020, which designates the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.
On that date the complaints were part heard by me and, following a request for an adjournment due to the unavailability of a key Respondent witness, the case was adjourned and was reconvened in person on 23rd March 2023.
The Complainant provided documentation in relation to his rostered hours in addition to his complaint form. The Complainant also provided copies of WhatsApp message exchanged between himself and the Respondent in advance of the hearing. The Complainant attended both hearings and was unrepresented at both hearings.
Mr. R Carroll attended the hearing on behalf of the Respondent and was unrepresented at the that hearing. The Respondent provided a brief submission in advance of the hearing.
Ms. H B attended as an observer.
At the reconvened hearing on 23rd March Mr. R Carroll again attended the hearing on behalf of the Respondent. Ms. A Zambara attended as a witness on behalf of the Respondent. The Respondent was unrepresented at the hearing.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021} IESC 24, the parties were informed in advance of those hearings that the hearing would normally be in public, testimony under oath or affirmation would be required and full cross examination of all witnesses would be provided for.
The required affirmation/oath was administered to all witnesses present and the legal perils of committing perjury were explained to all parties.
Preliminary Issue:
At hearing the Adjudication Officer queried with the Complainant if he had in fact made duplicate complaints in relation to all six of his complaints. The Complainant confirmed that he had indeed made duplicate complaints and that the only complaints to be heard were as follows:
- CA-00040854-01 Terms of Employment (Information) Act
- CA-00040854-02 Organisation of Working Time Act
- CA-00040854-03 Organisation of Working Time Act
- CA-00040854-04 Employment and Quality Act
- CA-00040854-05 Unfair Dismissals Act
- CA-00040854-06 Minimum Notice and Terms of Employment Act
Background:
The Complainant was as a manager/fitness instructor with the Respondent from the 21st August 2017 until the termination of his employment on the 31st July 2020. The Complainant contended that: · He did not receive a statement in writing of his terms of employment · He did not receive breaks · He was not given compensation for working on a Sunday · He was discriminated against by his employer by reason of disability and in relation to his conditions of employment · The Complainant was unfairly dismissed · He did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof
The Respondent was a leisure centre and the Respondent disputed the complaints and the allegations made by the Complainant.
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Summary of Complainant’s Case:
CA-00040854-001
The Complainant submitted that he had not received a written statement in writing of his terms of employment, that he had never received a contract when he started working for the Respondent in August 2017.
Evidence given at hearing on the 10th February 2022:
In relation to his complaint under the Terms of Employment (Information) Act, the Complainant confirmed that he never got a written contract or terms and conditions of employment, that he had a verbal contract with the Respondent, that he never received a copy of any document nor did he sign any document. He confirmed that he had talked through the role that was expected of him and he was verbally advised of the terms and conditions of employment. The Complainant advised that he had talked through the terms and conditions with his Line Manager (Ger) and that he had arranged a meeting with the Owner (Mr. C). He confirmed that he (the Complainant) was the General Manager and that it was agreed that two other senior managers would share out the role and so he was demoted to Duty Manager. He stated that originally upon commencement of employment he was doing one or two spin classes a day but that it ended up regularly being three or four classes per day but sometimes as many as six or seven per day. He stated that this was very tiring and throughout this time he would be on and off the bike
CA-00040854-002
The Complainant submitted that he did not get breaks. He submitted that he had never had a fixed break time during his shifts and that on several days over the three years of his employment, he was unable to take a break depending on how busy he was in work, or the number of staff that were on shift with him at any given time.
Evidence given at hearing on the 23rd March 2023:
In relation to taking breaks, the Complainant confirmed that there were no defined breaks, that it was up to the staff on duty to organise and agree break times between themselves when it suited. He stated that sometimes it was too busy and that when that happened, they tried to adjust the following day. He stated that as he was the General Manager, staff always got their breaks first and he was the last to take a break. He stated that he would go to the apartment to take his break and that he was encouraged by the Respondent to do this. He stated that he did not take more than the allocated time, that in fact what he was taking was time approved from previous occasions when he did not get a break. He stated that this occurred at least twice a week. He confirmed that he did alert the management but he confirmed that there was no clocking system in place and that it was simply break times being taken on trust.
CA-00040854-003
The Complainant submitted that he was not given compensation for working on a Sunday. He submitted that he never got paid extra or any compensation for working on Sundays.
Evidence given at hearing on the 23rd March 2023:
The Complainant confirmed that he received no extra pay for Sunday work.
CA-00040854-004
The Complainant submitted that he was discriminated against by his employer on the grounds of disability in relation to his conditions of employment. He submitted that he felt discriminated against by the Respondent several times throughout the period of his employment. He submitted that at the start he took it as a joke but he realised that he was treated differently to the other Irish National employees. He cited an example that he was demoted from General Manager to Manager together with a reduction in pay when other employees were demoted without a reduction in the pay rate. He stated that the treatment in work was different and the way the employer would speak to him with early morning calls and messages as early as 05:30am during the week and weekends was unique in relation to him.
Evidence given at hearing on the 23rd March 2023:
The Complainant confirmed that his comparators for the purpose of his case under the Employment Equality Act were the Irish staff employed by the Respondent, namely CH, MQ, KC and LOB. He confirmed that the approach to him was often aggressive and demanding and that the Irish staff were not treated in that manner. He advised that the Respondent rang him frequently before 8am in the morning and indeed as early as 5am onwards and sent him texts while on holidays asking him if he could come to the gym. He stated that on one occasion where he forgot to turn on the screens, the Respondent shouted at him and also had difficulty with him coming in while not on shift. He stated that other colleagues regularly used the treadmills when not on duty but that they were not spoken to in the same way, nor were they approached in the same way. He confirmed he did not know if the Respondent rang others before 8am. He stated that other staff had noticed the way he was being treated and that it was put to him why did he allow the Respondent to speak to him in that manner. He confirmed that he was demoted from the role of General Manager to Duty Manager with reduced pay while CH and LOB were promoted to Duty Manager with an increase in pay. He said he started out as the manager and was promoted to General Manager but then was demoted to Duty Manager on reduced pay while the two Irish staff were promoted from fitness instructor to Duty Manager with a pay increase.
The Complainant submitted that GB who was Irish, had left in 2019 from the role of General Manager and that she was in receipt of €20 per hour at that time. He stated that when he commenced employment soon after he was paid at the rate of €15 per hour and that this rate increased to €17.50 per hour. He said that a conversation took place and that agreement was reached between him and the Respondent to increase his pay to €17.50 per hour but that this was based on broadening out his duties and the Respondent had stated to him at the time that if he could prove he could do the job then his pay would be increased to €20 per hour. He stated that different members from the gym had asked him why he allowed the Respondent to treat him in the manner in which he did. The Complainant also advised that when he talked to the Respondent, the Respondent asked him what he was going to do when he would lose his job as he did not have a visa.
The Complainant outlined that MQ who was Irish, received special treatment, that he was allowed to come in late and not turn up on time and that he as the manager would be pulled up if he went home early due to no break and yet MQ left in the middle of his shift and there was no problem. He stated that if others of Irish Nationality were off sick that was okay, but if he was sick the Respondent became annoyed with him. He gave the example of him having a tooth extraction and being asked if he was going to be back for the class that night. He stated that he had a son to take care of and he was afraid of losing his job because of his visa. He stated that the Respondent had said to him that “you Brazilians are always slow” and that this was said in relation to the preparation for opening after COVID. He stated that during the discussions post COVID he had suggested the idea of holding an event and the Respondent had said to him “that kind of thing doesn’t work here… you Brazilians always want to have a party”. He stated that the Brazilians were not an educated people and that it did not suit the Irish population who were broadly educated people.
CA-00040854-005
The Complainant submitted that he was unfairly dismissed. He confirmed that he had the requisite twelve months service to enable him to progress a case of unfair dismissal. He submitted that he did not receive any verbal or written warnings and that he was dismissed by text message.
Evidence given at hearing of 10th February 2022
In relation to the Complainants’ dismissal the Complainant clarified the injury that he had and advised that he had informed the Respondent of the injury and that the Respondent in turn advised him to go home and that he could return to work when the injury had been resolved. He stated that he had advised the Respondent that he could do the spin class in the same way as before, that he could do it off the bike but that this was not acceptable to the Respondent.
Evidence given at hearing on the 23rd March 2023:
The Complainant stated that all issues started because he received a foot injury. He stated that he had opened the gym and that the Respondent asked him if he was teaching on the bike. The Complainant stated that he reminded the Respondent that he was hopping on and off the bike because of his injury. He stated that the Respondent became agitated and raised his voice in front of others and he stated that he got very nervous, that this had occurred at reception. He stated that it was only after COVID that the Respondent decided that all staff should be on the bike to motivate clients and he stated that he managed two or three spin classes per day and that that day he knew he could not do that much time on the bike, that it would be too demanding. He stated that he could do weights but the Respondent barred him from the gym and asked him for his keys.
The Complainant confirmed that he went to the gym twice while off work.
In relation to his claim of unfair dismissal, the Complainant stated that he had not been able to gain employment since his employment was terminated. He had recently regularised arrangements in relation to his working visa and had only now been in a position to gain employment. He stated that he had an irregular arrangement in relation to the working visa and therefore he was unable to work without a visa. He confirmed that the Respondent knew at all times about the arrangement in relation to his visa. He confirmed that originally, he had a Brazilian passport but now he had an Italian passport as he had Italian and Brazilian heritage. He stated that the delay in gaining his Italian passport had been caused by COVID. He confirmed that he got a job in August 2021 once he received the European passport. He said that he was under a lot of stress and pressure and that he had seen a Psychologist. He said that he was very concerned about the management job, that the employer knew the situation regarding the visa and used it against him. He stated that while he was in the management role he had stayed late, that he had brought home work to finish it and yet he had been told he was not able to do the management job.
CA-00040854-006:
The Complainant submitted that he did not receive his statutory minimum period of notice upon the termination of his employment.
Evidence given at hearing on the 23rd March 2023: The Complainant confirmed that he had not received his paid holiday entitlement and he advised that he would send in a payslip to demonstrate that within ten days of the hearing.
CA- 00040855-01
The Complainant confirmed that this complaint was a duplicate of CA-00040854-01 and that there was no separate complaint under this case number.
CA- 00040855-02
The Complainant confirmed that this complaint was a duplicate of CA-00040854-02 and that there was no separate complaint under this case number.
CA- 00040855-03
The Complainant confirmed that this complaint was a duplicate of CA-00040854-03 and that there was no separate complaint under this case number.
CA- 00040855-04
The Complainant confirmed that this complaint was a duplicate of CA-00040854-04 and that there was no separate complaint under this case number.
CA- 00040855-05
The Complainant confirmed that this complaint was a duplicate of CA-00040854-05 and that there was no separate complaint under this case number.
CA- 00040855-06
The Complainant confirmed that this complaint was a duplicate of CA-00040854-06 and that there was no separate complaint under this case number.
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Summary of Respondent’s Case:
CA-00040854-001: The Respondent submitted that the Complainant was given his terms and conditions of employment before accepting the role of Duty Manager with the Respondent. He submitted that himself and two other Duty Managers all read and accepted the terms and conditions before accepting this significant role and that he had the documentation on file in the staff office.
Evidence given at hearing on the 10th February 2022: The Respondent stated that the Complainant had been given a clear indication of his terms and conditions and that there had never been any issue throughout his employment in relation to his terms and conditions. He confirmed that agreement was reached to share the role of manager with other employees and that all three staff signed up to the terms and conditions attaching to that role. He further confirmed that he had copies of same and would submit copies to the WRC post hearing.
CA-00040854-002: The Respondent submitted that the Complainant worked 37.5 hours per week over five days and requested to reduce his hours to 30 hours which the Respondent agreed to, to focus more on his personal training and clients. The Respondent submitted that he also took the Complainant back on, early during lockdown, before any of the rest of the staff, to participate in online zoom classes while the business was closed. The Respondent submitted that the Complainant was still paid for his normal working hours, he only worked a minimum of 22.5 hours per week. He submitted that this was the agreement as his hours were spread over the day, rather than shift work, due to online classes being on at different times. The Respondent stated that the Complainant also received all his annual leave owed in his last week of payment.
In relation to the Complainants’ case that he received no breaks, the Respondent stated that all staff are given a 30 minute break during their eight hour shift. The Respondent stated that the Complainant always got a break and often left the building on more than several occasions to his apartment for well over the allocated break time and was warned multiple times that this should not happen as he had a standard to keep as the Duty Manager. The Respondent submitted that this claim was completely false.
Evidence given at hearing on the 23rd March 2023 (Mr C):
Mr C stated that it was a lie to say that the Complainant did not get his breaks. He stated that staff always had a break and that the Complainant was no different. He stated that staff were advised to sort the breaks between themselves and that he did not dictate when individuals took their break but he said that the Complainant always took a break. He stated that no one ever complained to him about not receiving a break and that there was a canteen in the workplace. He stated that there were sometimes fewer people on site during weekends and that in the context staff were paid for breaks if they were unable to leave but that they still could avail of refreshments during that time. He stated that the Complainant regularly left the building to go to his apartment which was close by but that he was paid, although he often ran over time. He stated that the receptionist Ms AZ, who was present, would affirm to the fact that the Complainant always got his breaks.
Evidence given at hearing on the 23rd March 2023 (Ms AZ):
Ms Z confirmed that she was a receptionist at the Respondent gym and she confirmed that she had seen the Complainant take his breaks on a regular occasion. She confirmed that she did not work in the evenings, that she only worked up to 5pm and that there were two shifts in operation generally, 6am – 2pm and 2pm – 10pm but that she only worked up to 5pm. She confirmed again that during her time up to 5pm she had observed the Complainant taking his breaks. She confirmed that she stopped doing the evening shift in 2018 but that she had worked an evening shift with the Complainant up to 2018 but that the last 2½ years she had not worked an evening shift. She stated that most times she was working on the morning shift with the Complainant and that during that time she had seen him take his morning break. She stated that another employee (H) worked on reception doing the evening shift.
CA-00040854-003: The Respondent submitted that the Complainant was on a weekly wage of €15 per hour. He was paid every Friday and never left short in his wages. He was also given a quarterly bonus, a Christmas bonus and was given a bonus during the pandemic also on top of his weekly wage. The Respondent stated that in relation to his claim regarding Sunday pay he was extremely confused as the Complainant was one of the highest paid staff members.
Evidence given at hearing on the 23rd March 2023 (Mr C):
The Respondent stated that he was not aware of a requirement to pay additional pay on a Sunday and he confirmed that he did not pay additional pay for Sunday working. However, he stated that staff in the gym were better paid than staff in most gyms in the city.
CA-00040854-004: The Respondent submitted that he was extremely offended in relation to what he considered to be a false accusation. He submitted that his business would not exist if it were not for the numerous nationalities that use his facilities daily. He submitted that any staff who had worked in the company had come from all over the world with different backgrounds and had been welcomed with open arms. He submitted that there was absolutely no proof to justify the statement as all staff were treated as equals. He submitted that he was completely disgusted by the allegation, specifically as his wife and children are of mixed race and that he found this complaint to be an insult to him and his family.
Evidence given at hearing on the 23rd March 2023 (Mr C): The Respondent stated that he had no comment to make in relation to the evidence given by the Complainant, that he simply could not answer what had been alleged, that he was emphatic that it was not true, that he had other Brazilian staff working for him and that he had no problems with any of the staff. He said that he had been working in the industry with many different nationalities for over ten years and had never received complaints and that his own family were from a mixed family background. He stated that the Complainant was not performing in the role of General Manager as a manager should, that he was not doing all the tasks and he said that staff had come to him in relation to the challenges being experienced. He stated that a particular staff member (L) had come to him with the idea that three of the individuals would share the responsibility of the management role and he stated that he did not decrease the Complainants’ pay. He stated that the Complainant was not put on €20 per hour initially and that the difference was that the previous manager had had significantly more experience than the Complainant when he was starting in the role. He stated that it was his expectation that as the Complainant gained experience he would increase his pay to that rate, however the Complainant was not satisfactorily carrying out the role of the manager.
The Respondent stated that he never screamed or shouted at the Complainant in public. He referred to Mr MQ and the leniency shown to him in relation to leaving work early. He stated that Mr Q had mental health issues and that he had discussed those matters with him in private and that he had given him a significant amount of leeway and that ultimately, he had to let him go from the job. He stated that this was an example of a task that should have been carried out by the Complainant but that the Complainant was not competent to carry out a disciplinary meeting. He stated that at all times if staff were off sick, he would check with them in relation to their return arrangements so that he could arrange cover for classes if they were unavailable. He denied that he had ever said what would you do if you were to lose your job and he stated that he was offended by that remark.
CA-00040854-005: The Respondent submitted that in relation to the dismissal of the Complainant, unfortunately he had to let the Complainant go due to him having an invalid working visa. He submitted that this only came to his attention in July 2020 and that he looked into the law governing the matter and it came to his attention that the Immigration Reform and Control Act of 1986 (IRCA) confirmed that it was illegal to employ an illegal immigrant. He submitted that he had read the risks and the heavy fines related to this matter before letting the Complainant go. He submitted that if he continued to employ him, he would not only risk losing his own business, but particularly after the hardships of the pandemic, that he would put other staff members jobs at risk also.
Evidence given at hearing on the 10th February 2022 (Mr. C):
In relation to the issues that gave rise to the termination of employment the Respondent stated that there had been ongoing issues in relation to the Complainant teaching spin classes while off the bike. He said that this was very demotivating for clients and was not acceptable. He confirmed that he had spoken to the Complainant in relation to it on a number of occasions and that he had asked the Complainant to predominantly spend his time during the class on the bike. He said that this position was actually clearly set out in the handbook. He advised that it was essential that witnesses to these matters would be present at the hearing and in that context, he sought an adjournment of the hearing to a later date. The Complainant offered no objection to the adjournment and indeed indicated he too might bring witnesses to any subsequent meeting. On that basis the hearing of the 10th February 2022 was adjourned.
Evidence given at hearing on the 23rd March 2023 (Mr C):
The Respondent stated that while the Complainant was off work with an injury, he attended the gym on two occasions. He indicated that he sent him a text to advise him that he was not to use the gym and he invited him in to talk to him the next morning. He stated that the Complainant stated that he could not go that morning as he had to sort out his foot and that he had an appointment with the doctor at 8am. The Respondent stated that he advised the Complainant that he could do an earlier meeting but he confirmed to him that he was determined that they would meet. He stated that he advised him that he did not care about his issues anymore and that the reason he would be sacking him was for not following his instructions. He confirmed that he did dismiss him by text on the 5th August. The Respondent further stated that he had had a problem for a number of years with staff not being on the bike during a spin class and that he always asked staff to remain on the bike, that it was the norm in the industry and he was asking them to maintain that standard for years. He stated that after COVID they had introduced new music, new routines and new ideas and that with the instructors not using the bikes, the number of attendances at spin classes had started to reduce. The Respondent stated that the Complainant had a problem with his foot but that it only emerged after he was asked to get on the bike. He stated that he met all staff and explained to them what he wanted and that he would never have encouraged an instructor to go home. He stated that the Complainant advised that he was unable to do the class. He stated that he asked to meet him in relation to the issues. He said that within five days of being off work, the Complainant had attended the gym on two occasions, however he continued to describe himself as unable to attend work but he was able to attend the gym while at leisure and he stated that the Complainant would not meet to discuss the matter.
In response to questions from the Adjudication Officer the Respondent confirmed that he did ask the Complainant for GP confirmation of his injury and he accepted that he had not followed a progressive disciplinary procedure in relation to the Complainants’ dismissal. The Respondent stated that there had been a three-month period when the Complainant could not work following his termination of employment as he had to go to Italy for a three-month period in order to obtain his Italian passport. He stated that staff had told him about that situation but that he had no known at the time of employing the Complainant that he did not have a valid passport. He stated that the Complainant had a valid PPS number and, in that context, he had employed him. He stated that he had constantly coached him in relation to fulfilling his role as General Manager and that at no time was the Complainant doing the full job that had been done by the previous incumbent.
CA-00040854-006: The Respondent submitted that when it came to his attention that the Complainant had an invalid working visa, he had to immediately dismiss the Complainant as outlined above. He confirmed that he could not risk him being a staff member any longer and that he felt it was a huge risk to his business and staff.
Evidence given at hearing on the 23rd March 2023 (Mr C):
In relation to holiday pay, the Respondent stated that he had made the relevant payment for holiday pay.
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Findings and Conclusions:
During the course of the second hearing and as part of the evidence given by both parties it became clear that at the time relevant to the instant complaints, the complainant was not in possession of the requisite work authorisation documentation to permit him to legally work in Ireland. While it was clear that he was seeking confirmation of his rights to EU citizenship, he did not possess such documentation at that time. It was also clear to me that the Respondent was fully aware of the Complainant’s employment status at that time.
In this context, the Adjudication Officer brought to the attention of the parties the implications for all complaints submitted in relation to a person working without appropriate authorisation as neither party had availed of the opportunity to be represented at the hearing. I agreed to write to both parties post hearing, setting out the relevant case law and providing them with an opportunity to provide a written response.
The relevant correspondence was issued by the Workplace Relations Commission to both parties, and the parties were asked to provide their response(s) in writing. Subsequent to the hearing and the issuing of said correspondence the Complainant provided copies of pay slips to demonstrate the change in his pay rates in relation to his complaint of discrimination and he provided further copies of WhatsApp messages between the parties. He did not, however, provide any response to the case law notified to him.
The Complainants’ responses were copied to the Respondent for any observations; however no response was ever received from the Respondent to either the Complainant’s additional information or to the case law highlighted by the Adjudication Officer.
The Law
The Employment Permits Act 2003 (as amended by the Employment Permits Act 2006) regulates for a non-national seeking to work in the State and the effect of the provisions of that Act is that a non-national may not enter the service of an employer or be in employment in the State unless he/she has an employment permit granted by the Minister. It is settled law that it is an absolute offence for a non-national to be in employment without such a permit.
It is also well established in case law thatthat any contract of employment between a Complainant and a Respondent would be contrary to the provisions of statute and substantively illegal and that in such circumstances ‘neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract which is substantively illegal in this fashion’.
It is clear from the evidence provided that the Complainant did not have the requisite permit/visa to work within the State and did not make efforts to regularise his employment status until after his employment with the Respondent ended. While the Respondent was clearly aware of this and would appear to have been providing less favourable terms of employment than were set down in legislation, nonetheless, based on established law I cannot entertain an application for relief in respect of, what is, an unlawful contract.
Based on the above case law I must find as follows:
CA-00040854-01
The Complainant does not have standing to pursue a case under the Act
CA-00040854-02
The Complainant does not have standing to pursue a case under the Act
CA-00040854-03
The Complainant does not have standing to pursue a case under the Act
CA-00040854-04
The Complainant does not have standing to pursue a case under the Act
CA-00040854-05
The Complainant does not have standing to pursue a case under the Act
CA-00040854-06
The Complainant does not have standing to pursue a case under the Act
CA- 00040855-01
The Complainant confirmed that this complaint was a duplicate of CA-00040854-01 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
CA- 00040855-02
The Complainant confirmed that this complaint was a duplicate of CA-00040854-02 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
CA- 00040855-03
The Complainant confirmed that this complaint was a duplicate of CA-00040854-03 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
CA- 00040855-04
The Complainant confirmed that this complaint was a duplicate of CA-00040854-04 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
CA- 00040855-05
The Complainant confirmed that this complaint was a duplicate of CA-00040854-05 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
CA- 00040855-06
The Complainant confirmed that this complaint was a duplicate of CA-00040854-06 and that there was no separate complaint under this case number. Therefore, there is no separate finding in relation to this case number.
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Decision:
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-00040854-01
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA-00040854-02
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA-00040854-03
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA-00040854-04
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA-00040854-05
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA-00040854-06
I have found that the Complainant does not have standing to pursue a case under the Act and so it is my decision that this complaint is not well founded.
CA- 00040855-01
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
CA- 00040855-02
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
CA- 00040855-03
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
CA- 00040855-04
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
CA- 00040855-05
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
CA- 00040855-06
As the Complainant confirmed that this was a duplicate complaint there is no separate decision on this matter.
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Dated: 19-04-2024
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Work Permits |