Complainant

Respondent

Parties

Zhihua  Yuan

Gaffney Mechanical Limited

Complainant

Respondent

Anonymised Parties

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Representatives

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00059613-001

25/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00059615-001

25/10/2023

An issue arose at the outset as to whether the Complainant was ever employed by the Respondent. Whilst I had heard other complaints by the Complainant against this Respondent under ADJ-00048138 – nonetheless, I stated I would hear the evidence and submissions on this matter and reserve my decision. 

In the original correspondence from the WRC, CA-00059615-001 was referenced as seeking adjudication under the Safety, Health and Welfare at Work Act [2005-2023]. In a letter to the parties of 28/11/2023 the WRC acknowledged this was incorrect and advised that “the correct redress option will appear on all future correspondence” – ie complaint seeking adjudication under Schedule 2 of the Employment Permits Act, 2006.

The Respondent stated the complaints were outside the six month time limit prescribed by the Workplace Relations Act [2015 – 2021].

The Complainant outlined his dealings with regard to his obtaining a work permit and signing a contract of employment with the Respondent on 8 April 2022. He stated that as a result he considered he was employed by the Respondent from April 2022.

The Complainant stated that he arrived in Ireland on 31 December 2022. The Complainant complained that the Respondent treated him in a fraudulent manner by colluding with a recruitment agency to bring him to Ireland, by refusing to arrange a job for him after he came, by not telling him no job was available  and by “secretly” cancelling his work permit.  He stated that the Respondent arranged for him to work illegally for another company. He stated that he started work for this other company in February 2023. 

CA-00059613-001 - Protected Disclosures Act [2014-2023]

The Complainant stated that he reported the Respondent's “criminal act of arranging illegal employment” to the WRC and to the Employment Permits section of the Department of Enterprise Trade and Employment (DETE). He stated that he faced retaliation as a result and that his “work

 permit was unlawfully revoked by a fraudulent agent through illegal means”.

CA-00059615-001 - Employment Permits Act [2006-2024]

The Complainant stated that he reported the Respondent's “criminal act of arranging illegal employment” to the WRC and to the Employment Permits section of the Department of Enterprise Trade and Employment (DETE). He stated that he faced retaliation as a result and that his “work permit was unlawfully revoked by a fraudulent agent through illegal means”.

The Complainant stated he was seeking compensation for the financial losses he had suffered and the impact on his health.

The Respondent outlined its business. The Respondent stated that it was a stand alone business entity and it rejected the Complainant’s assertions with regard to its purported dealings on behalf of another company and with regard to the matter of work permits and any alleged illegality on its part.

The Respondent stated that it had applied to the Department of Enterprise Trade and Employment (DETE) – through a recruitment agency – for work permits for a number of workers. The Respondent stated that as part of the process it was required to submit to the DETE a signed statement of the main terms and conditions which would attach to the employment. The Respondent stated that the Complainant’s employment was due to commence on 20 June 2022 however, he did not arrive in Ireland until 31 December 2022. The Respondent stated that as a consequence of general economic pressures it did not hire the Complainant, that he never became an employee of the Respondent and that it did not enter into any contractual relationship with the Complainant after he arrived in Ireland. The Respondent further stated the Complainant was not a worker within the relevant prescribed legal definitions.

The Respondent denied that it acted in any manner contrary to the Protected Disclosures Act [2014-2023] or the Employment Permits Act [2006-2024]. The Respondent stated that the Complainant had not particularised his complaints in that regard and that it had no prior knowledge of any protected disclosure made to the WRC. The Respondent denied that it conspired with any other party to have the Complainant’s work permit cancelled or to cause him detriment and that no evidence of such had been submitted. The Respondent further denied that the Complainant suffered penalisation as a consequence of any alleged action on its part and that it did not organise “illegal” employment or any employment for him with another company. The Respondent stated that it was not a party to the terms and conditions of employment provided by any other employer.

It is the position of the Respondent that the Complainant was never an employee or a worker for the purpose of the Protected Disclosures Act [2014-2023] or the Employment Permits Act [2006-2024], that he had not particularised his complaints and further, it denied any act of penalisation of the Complainant. 

CA-00059613-001

Section 3 of the Protected Disclosures Act [2014-2023] defines penalisation as follows:

“"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

Section 3 of the Protected Disclosures Act [2014-2023] defines worker as follows:

“"worker" means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes

(a) an individual who is or was an employee,

(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) an individual who works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,

(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations….., and

(j) an individual who is deemed to be a worker by virtue of subsection (2)(b), and any reference to a worker being employed or to employment shall be construed accordingly.”

Section 3 of the Protected Disclosures Act [2014-2023] defines work related context as follows:

“"work-related context" means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information;”

Section 3 of the Protected Disclosures Act [2014-2023] defines employee as follows:

““employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977….”;

Section 1 of the Unfair Dismissals Act [1977-2020] defines employee as follows:

““employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;”

Section 3 of the Protected Disclosures Act [2014-2023] defines employer as follows:

““employer”, in relation to a worker, means, subject to subsection (2) (c)—

(a) in the case of an individual who is a worker by virtue of paragraph (a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,

(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,

(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—

(i) the person for whom the worker works or worked, or

(ii) the person by whom the individual is or was introduced or supplied to do the work,

(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training,

(e) in the case of an individual who is a worker by virtue of paragraph (e) of the definition of that term, the undertaking of which the worker is or was a shareholder,

(f) in the case of an individual who is a worker by virtue of paragraph (f) of the definition of that term, the undertaking, the administrative, management or supervisory body of which the worker is or was a member,

(g) in the case of an individual who is a worker by virtue of paragraph (g) of the definition of that term and who is a volunteer, the person for whom the individual is or was a volunteer,

(h) in the case of an individual who is a worker by virtue of paragraph (h) of the definition of that term, the person by whom or on whose behalf the recruitment process concerned is or was carried out, or

(i) in the case of an individual who is a worker by virtue of paragraph (i) of the definition of that term, the person by whom or on whose behalf the pre-contractual negotiations are or were carried out;”

Section 5 of the Protected Disclosures Act [2014-2023] defines protected disclosure as follows:

“5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

Section 12 of the Protected Disclosures Act [2014-2023] defines protected disclosure as follows:

“12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

CA-00059615-001 - Employment Permits Act [2006-2024]

The Employment Permits Act [2006-2024] defines “employer” in the terms set out in the Terms of Employment (Information Act) [1994-2020] which provides as follows at Section 1: 

““employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;”

Section 26 of the Employment Permits Act [2006-2024] provides as follows in relation to the prohibition of penalisation:

“26.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), “penalisation” in this section includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with,

(b) giving evidence in any proceedings under the Act of 2003 or this Act, or

(c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(3A) Subsection (3) does not apply where the complaint is a protected disclosure within the meaning of the Protected Disclosures Act 2014.”

Having considered all the evidence, documentation and submissions I have come to the following conclusions:

·        The Statement of Main Terms of Employment was signed by the Complainant on 8 April 2022 and by the Respondent on 13 April 2022. There was a letter of offer of employment to the Complainant from the Respondent of 21/9/2022. Notwithstanding the existence of both these documents I am satisfied the evidence demonstrates that the Complainant did not arrive in Ireland until 31 December 2022 and that he never worked for nor was ever employed or paid by the Respondent. In the circumstances I am satisfied the Complainant has not established he was a worker who acquired information on relevant wrongdoings in a work related context or that he was an employee - for the purpose of establishing penalisation under the Protected Disclosures Act [2014-2023].  I am also satisfied that the Complainant has not established that the Respondent was his employer or was acting on behalf of an employer, for the purpose of establishing penalisation under Section 26 of the Employment Permits Act [2006-2024]; 

·        The Respondent has outlined its efforts to employ workers from abroad in 2022 and also the reasons why it did not hire the Complainant in December 2022. From the evidence presented I accept the Respondent’s position in this regard. The Complainant’s original permit was issued to facilitate his working for the Respondent and the Respondent denied cancelling that permit. When the proposed work to be provided by the Respondent did not materialise it became necessary to make arrangements with DETE to have a new permit issued –as outlined in the oral evidence and the email from DETE of 1/9/2023. At the time the Complainant was dealing with matters through a recruitment agency.  

·        The Respondent stated that the first it knew of the complaints of penalisation was when it received correspondence to that effect from the WRC. In that regard, the Complainant’s complaint of penalisation was submitted to the WRC on 25/10/2023 which was after his permit to work for the Respondent was cancelled as per the DETE email of 1/9/2023. In evidence the Complainant stated that he submitted his first complaints to the WRC on 29/9/2023. Either way given the time sequence, the act of complaining to the WRC could not have prompted the alleged “retaliation”/ie alleged cancellation of the permit by the Respondent - such as to amount to penalisation;

·        In all the circumstances, I find the Complainant has not established that he was penalised by the Respondent within the terms Section 3 of the Protected Disclosures Act [2014-2023] and Section 26 of the Employment Permits Act [2006-2024];

·        The WRC received the Complainant’s complaints of penalisation on 25/10/2023. On the basis of my previous findings, I consider that the issue of the prescribed six month time limit for bringing a complaint is moot.

CA-00059613-001

For the reasons outlined I decide this complaint is not well founded.

CA-00059615-001

For the reasons outlined I decide this complaint is not well founded.

Penalisation