Complainant

Respondent

Parties

Erik Fernando  Policarpo

Cooksgrove Limited T/A Euro Farm Foods

Representatives

Aisling Finnegan BL instructed by

Eric Monaghan Solicitors

 MP Guinness BL instructed by

Flynn O’Driscoll Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053948-001

30/11/2022

The Complainant is a general operative who began working with the Respondent on the 9th of December 2020.

On the 8th of June 2022 the Respondent was subject to an unannounced site visit by the Garda National Immigration Bureau (“GNIB”) and WRC Inspectors.

The GNIB identified which workers were present and working that day and then submitted a handwritten list of 8 non-EU workers who they believed were not allowed to work. The Complainant was on that list and was sent home on the following day, the 9th of June.

The Complainant was entitled to work at that time and both parties raised this issue on a number of occasions. I took over three months before the GNIB reverted and accepted that 5 of the 8 workers, including the Complainant were in fact allowed to work.

The Complainant referred this case on the 30th of November 2022 alleging that he had been unfairly dismissed and then reengaged. The Respondent’s position that he was laid off due to actions outside of either party’s control.

The Compainant’s counsel made written and oral submissions on his behalf. The Complainant gave evidence under oath through a translator.

The Complainant was suddenly sent home from work on the 9th of June 2022. He had previously brought personal injury proceedings against the company who had taken a negatice view of him after this point.

The Complainant was paid out his accrued annual leave and believes that he was dismissed and then later reinstated.

The Respondent attended the hearing represented by counsel who made detailed written and oral submissions on their behalf.

Mr Ciaran Boyle, General Manager of Eurofarm Foods, gave evidence under oath.

The Respondent maintains there was no termination. They were bound to follow the GNIB’s instructions and did their best to challenge them via their solicitors.

The Complainant knew at all times he was on temporary unpaid leave/lay-off.

Claddagh Ring Limited v Mr Nima Amjadi UDD2223

The Complainant’s counsel sought to rely on the Labour Court’s decision in Claddagh Ring Limited v Mr Nima Amjadi UDD2223.

In that case an employee, who had been on paid leave during the Covid pandemic was suddenly deprived of wages. His employer then later wrote to him outlining that he was laid-off. This had occurred in the context of a dispute amongst the company owners. The Complainant argued he had actually been dismissed.

Complainant’s counsel has sought to rely on this case on the basis that the Court determined the issue of dismissal, under this Act, by referring to on the lay-off provisions contained within Section 11 of Redundancy Payments Act (“RPA”).

Section 11 states: Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The Court did refer to the language of Section 11 and noted the Respondent’s failure to comply with those steps. However, it is not clear from that decision whether compliance with Section 11 was actually a factor in determining the issue of dismissal versus lay-off.

In that decision the Court concluded, with reference to the surrounding facts, that:

the Respondent did, on the balance of probability, intend to dismiss the Appellant on 4th September. In the view of the Court, the Respondent’s decision made at least one week prior to 4th September 2020 without notice or without informing him of the fact, to cease the payment of wages to the Appellant constituted evidence of an intent to cease the employment relationship and the later communication to him on 4thSeptember that payment of his wages had ceased a week earlier and that his employment had been suspended can, objectively, reasonably be understood as the termination by the Respondent of the contract of employment.

Having regard to all of the circumstances therefore the Court concludes that the Appellant was, within the meaning of the Act, dismissed by the Respondent on 4th September 2020.

While it is not entirely clear what weight the Court placed on Section 11 of the RPA the decision in Claddagh Ring does contain a clear statement of the general question I am required to address in this case.

The question before the Court is whether the Appellant could reasonably and objectively understand himself to have been dismissed as he alleges on 4th September 2020 and, relatedly, whether the Respondent intended to bring the contract of employment to an end by way of dismissal on that date.

Oral Evidence

Both the Complainant and Mr Boyle recounted GNIB attending the workplace on the 8th of June 2022. Staff were told to leave and returned on the 9th.  The Respondent held a meeting with the Complainant and his colleagues, and they were told they were being laid off and were paid in arrears. Under cross examination by Respondent counsel, the Complainant agreed he was on unpaid leave at this time and that he asked for a letter from the Respondent confirming the same.

The Complainant returned 20 days later for an update and the Respondent told him they were raising the matter, but they could not allow him to work until the issue was resolved. The Complainant had ongoing email correspondence with the Respondent as they tried to resolve matters.

The Complainant could not navigate the Irish social welfare system and was put under extreme financial stress. He obtained a loan but ultimately had to buy a plan ticket for himself and his son. He was planning on going back to Brazil to work there and send money here where the rest of his family would remain. On 15th of September, he was told to come back to work on the 18th.  

Translation Issue

When the Complainant first gave evidence and outlined, under oath, that he had been told he was laid off, I asked the translator to confirm that was the term used as laid off can be misconstrued to mean terminated by some people. She confirmed that he had said laid off. Later, after the Respondent’s case had run, the Complainant’s counsel alerted me to an issue raised by the translator who had since suggested that the Complainant had used a different term and there may have been a difference of dialect.

At this point not only had the Complainant already given his evidence but he and the translator had talked in their native language for a time without me or the Respondent being able to understand what was said. I determined that I could not accept any revision of the Complainant’s earlier evidence without an expert report provided by the Complainant to outline any misunderstanding or mistranslation. The Complainant’s counsel declined to seek an adjournment so such a report could be compiled. 

Conclusion

Both parties were placed in a Kafkaesque situation by the GNIB who determined, by way of a handwritten note issued on the day of a raid, that the Complainant and several of his colleagues were not working legally. When the Respondent sought to challenge this error, they received no substantive reply for months. While the Complainant has sought to point out he was not explicitly mentioned in each of the letters written to the GNIB and Chief State’s Solicitor’s Office, on review of the letters I am satisfied he was encompassed by this correspondence and was referred to as part of a class of persons.

On review of the evidence, including the correspondence between the parties and between the Respondent and state, it is clear that this was an exceptional situation which made the Complainant’s employment temporarily untenable. The Respondent could not be reasonably expected to ignore directions from GNIB and continue to allow the Complainant to work under threat of criminal prosecution. They placed the Complainant on lay-off which was an option provided for in his contract of employment.

It is also clear that this situation was understood by both parties. The Complainant himself referred to being told he was laid off and was actively seeking updates about returning to work.

I do not accept he was dismissed and as such he cannot succeed in a case of unfair dismissal.  

The complaint is not well founded.