Complainant

Respondent

Parties

Poliane Fernandes Lima

Elland Distributors Limited Born Clothing

Complainant

Respondent

Anonymised Parties

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Representatives

ESA Consultants ESA Consultants

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-00061245-001

26/01/2024

The Complainant alleges she was unfairly dismissal due to incorrect information the Respondent had in relation to her employment status. The Respondent contests the claim.

Ms Poliane Lima took the affirmation and gave h-er evidence as follows:

She started on the 02.08 2022. She was working for Gucci in Dublin before that. She was contacted by a head-hunter and was offered the position with the Respondent. She moved to Galway. Her partner is from Galway. She was given a fixed term contract which expired 31.12.2023. She worked on after that into January. She enjoyed her time there and she learned a lot. For the last seven months she spent time in the Dublin office too.

She has a visa. Her visa is linked to her fiancée. On the 20th November 2023 she applied to renew her visa.  When you apply for her particular type of visa, she had to prove that she has lived with her Irish partner for two years. She also had to send in her passport and other documents. Every year when she renews her visa her partner has to come with her to prove the relationship is still on going. She applied early because there is always a short delay in getting the Visa. There was no doubt the Visa was going to be renewed as she is now engaged, and they had applied for a mortgage in Ireland.

 In November, she spoke to Theresa about it, and she said it would be fine. She took holidays and she went to Brazil. She came back in January. She got engaged on the 31.12.2023. She worked the week of the 20th normally. Mr Murphy followed her out to her car and gave her a letter. He said they were letting her go. She explained that her visa was going to be renewed on the Sunday. That was set out in the mail of the 20th November. He said she was to go back upstairs and get her stuff and leave. She was very upset, and she cried all the way home. She heard nothing from them. She was not given any opportunity to defend herself. She was not asked about the Visa despite telling him it was going to be renewed on the Sunday.  She was not given an opportunity to defend herself or to appeal the decision.  

She has been trying to get a new job. She tried in fashion, food, toys and homewares. She also applied in Portugal as she speaks the language, but she has not gained employment yet.

Theresa Reilly – took the affirmation and gave her evidence as follows:

She is the payroll administrator. She works parttime. The Complainant started in August 2022. She gave her a copy of her passport and visa.  In November 2023 she was in the kitchen with the Complainant.  The Complainant told her that her visa was about to expire. She informed her that she had a meeting organised with immigration but that was outside of the lifespan of the visa. There was no more said about it after that. Ms Reilly had a good relationship with the Complainant. She didn’t go to anyone and tell them about her visa expiring.  The Complainant said that there was nobody to contacted about the visa because there was no HR department.

Marty Murphy  took the affirmation and gave his evidence as follows:

Mr. Murphy is works in finance and he is the Office Manager of the Respondent. He discovered that the Complainant’s visa had expired. That was on the 23rd January 2024. It expired 23rd January 2024. He sought legal advice. They were informed of the ramifications of employing somebody without a working visa. That went on for a day or two and then we wrote the letter dismissing her. Her visa was renewed on the 28th January. The Respondent accepted that that was within her notice period. It was accepted that he did not speak to the Complainant about her Visa nor did he ask her if she had renewed it. It was accepted that nothing was done other than to write the letter of dismissal. There was no opportunity to appeal given in the dismissal letter.  The Complainant did not come back to the Respondent to inform them that her visa had been renewed. The Complainant stated that she told the Respondent that her visa would be renewed on Monday, and she was willing to stay at home on Friday and to only come back to work when the visa was actually renewed. Mr. Murphy does not recall that. He accepts that it was very emotionally at the time.

The Complainant asked if her visa had expired on the 23rd, why did Mr Murphy let her work on the 24th and 25th. Mr. Murphy stated that they were seeking legal advice on the 24th and 25th but he did know how serious it was to keep someone employment without a visa.  .

The Complainant is from Brazil and lives and works in Ireland with an IRP card.  She has been here for six years. She previously worked in Dublin for Zara and Gucci. She renews this card annually. In 2023 she applied to renew her visa on the 20th November. It was due to expire on the 23rd January.  She had a conversation about it with Ms. Reilly on that date. That was accepted by Ms. Reilly. The Complainant was certain that it would be renewed because she did satisfied all of the criteria and her position was now stronger than in previous years as she was now engaged to an Irish citizen and had applied for a mortgage here with her fiancé.

The Respondent stated that it reviewed her file on the 23rd January and realised that her visa was due to expire on the date. Mr. Murphy stated that he allowed her to work on the 24th and 25th while he was getting legal advice despite knowing the possible ramifications of employing someone who wasn’t legally entitled to work in the State. That legal advice did not inform him of the eight week grace period allowed for by the Department of Justice.

The Department of Justice published a “Notice to Employers regarding employees awaiting renewal of their IRP Card”, pictured below, stating: “If an employee’s IRP card has expired and they are unable to obtain a valid registration card by the expiry date of their current IRP card, they are still legally permitted to remain in the State on the existing conditions of their current IRP card for a maximum of 8 weeks. This 8-week provision is subject to the employee providing proof that they have applied to renew their registration, including when changing stamp category, prior to their current IRP card expiring.”

Mr. Murphy dismissed the Complainant on the 25th January by handing her a letter of dismissal and telling her she was being let go because of her visa had expired. He was informed by the Complainant that it would be renewed on the 28th, one working day later but he simply told her to go upstairs, get her belongings and leave. He accepted that he did not offer her an opportunity to appeal that decision, that he didn’t have a conversation about it with the Complainant at any stage prior to dismissing her and that no investigation was carried out.

I am satisfied that the Complainant did meet the criteria set out by the Department of Justice in that she had applied to renew her visa well before it expired, and she informed Ms. Reilly about that on the date of her application. I am also satisfied that the Respondent in the absence of any procedures whatsoever and acting on incorrect information dismissed the Complainant and that that dismissal was unfair. The information in relation to the visa is on the Department website and is readily available to anyone who looks for it. Even that menial task was not carried out by the Respondent prior to terminating the Complainant’s employment.

In all the circumstances I find that the Complaint is well founded.

The Complainant has been unable to secure new employment since her dismissal. She originally applied for positions in the fashion sector but when she wasn’t successful she applied for roles in the food, toys, and homeware sectors. She even applied for jobs in Portugal as Portuguese is her first language.

The Complainant was earning € 865.38 per week prior to her dismissal. She has been out of work since the 25th January 2024. She has made strenuous efforts to secure new employment but to date she has not been successful. In all of the circumstances I am awarding the complainant € 25,000.00 pursuant to Section 7 of the Act.

I am awarding the complainant €25,000.00 compensation.

Unfair Dismissal. Visa. Extension. Investigation. Appeal. Procedures.