Worker

Employer

Anonymised Parties

A worker

 A retail pharmacy

Representatives

  In person.

Grace O'Malley Ibec

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001751

06/09/2023

The complainant commenced employment with the respondent in February 2005. At the time of the incident in question the complainant was employed as a store manager.

This complaint was received by the Workplace Relations Commission on 6th September 2023.

In complaints submitted under section 13 of the Industrial Relations Act 1969, the complainant is referred to as the worker and the respondent is referred to as the employer.

The Disciplinary warning issued to the Worker relates to a disciplinary process she was involved in that she feels was unjust and unreasonable and has had a severe impact on her mental health. The final decision of a first written warning was issued post an appeal process. However, this still results in her performance bonus for the year being removed. A payment that the Worker had received every year as a manager and relies upon for the Christmas period.

The initial sanction issued was a final written warning. The Worker is still not sure why this decision was made in the first place, or why it was reduced on appeal. She has received very little clarity throughout this process. The sanction she received was on the grounds that she had breached the legal requirement for all colleagues to have a valid permit to work. The Worker strongly disputes this. She does not believe that a fair and impartial decision was made in relation to all of the evidence and mitigation that she presented. She also feels that in relation to the code of practice on grievance and disciplinary procedures her employer failed to set out that non- adherence to follow this policy could result in any sanction and failed to adequately train or support her in this area.

The Worker also draws attention to the fact that there has been a number of changes made by her employer as a result of this investigation, a complete change in policy was sent out on an alert to all store managers to read and declare that they will comply with during her investigation process. The Worker feels this failure to adequately support or protect her in relation to these policies was incredibly unfair.

Timeline of events.

The Worker took over the role of store manager in November 2022.

A new Assistant Manager followed the following week.

Both the Worker (store manager) and the new Assistant Manager found themselves in a position with a very high level of absence, colleagues due to resign in December and no seasonal recruitment had taken place. There was also no supervising pharmacist and no support pharmacist, and it was the dispenser who resigned mid-December.

Recruitment commenced immediately and in mid-December a student with a stamp 2 visa was recruited. This visa was due to expire on the31/12/22. However, on discussing with both her assistant manager and the student she was happy that he would apply for his renewal as soon as his certificate of attendance was issued by his college, which would be before the expiry on 31/12/22. The certificate of attendance was issued on the 30th of December 2022. This has been confirmed by the colleague and the college also provided documentation.

The colleague had made the Worker aware that once he applied for his renewal before the expiry date, he could work with the same permissions for 8 weeks whilst awaiting his new card. The Worker double checked this on the immigration website and the information was exactly as this colleague had explained.

The colleague applied for his renewal on the 30th of December. When the Worker checked the colleague's acknowledgment email the Worker did not at this point register that the time stamp was one minute past midnight, so dated 01/01/23. The Worker was confidant this colleague was covered for the additional 8 weeks until the end of Feb 2023.

On the 09.02.2023 the Worker emailed the HR department and enquired what would happen after the 8-week period if the colleague’s new card had not arrived. The Worker received a phone call from people point on the 09/02/2023 and was advised to suspend the colleague without pay until his renewal arrived. The Worker was told that if the colleague had in fact worked without permission, as it looked like he had applied one minute too late, that she (the Worker) could be held personally responsible for committing a criminal offence and that this could result in a fine or custodial sentence.

The student received his renewal on the 19th February 2023 and the Worker forwarded this on to people point on the 27th Feb 2023. This colleague then returned to work.

On Friday 24th March, the Worker’s direct line manager informed her that an official investigation would have to be conducted. She also told the Worker that she would not be doing the investigation herself.

The Appeal – in the Worker’s own words:

I appealed on the following grounds:

·        I do not believe that I have received adequate training with regards "ROI eligibility to work guidance" available on xxxxx live pre-February 2023, that we were not requested to sign or read.

·        During my investigation with xxxxx xxxxon 31st   March 2023 she showed me the document "ROI eligibility to work guidance", yet since my investigation of that date there has been an updated policy document which explains the visa process in a lot more detail, please see "xxxxx eligibility to work guidance" document versus the original version.

·        No consequences have ever been explained to me with regards not sending the tracker, there were no prompts for not sending the tracker. Now however, there are prompts with regards colleagues who may require documentation to be sent to HR.

·        The "Breach of right to work" that I have been sanctioned for has only been included in the new policy document " Eligibility to work guidance", this was not part of the original policy document that was live when I was issued this punitive sanction The severity of my sanction is unjust considering I have received no training or communication that any breach of this policy could be seen as a criminal offence, this has been included in the new policy document I don't believe the policy is robust or clear, we have since taken action to update all nationality fields on our payroll system to help with compliance in this area moving forward, this is of no help to me however.

·        We have not signed a declaration on completion of reading and understanding this policy as we have for other important policies and procedures.

·        As part of the store induction, legal information, the legislation that is included does not refer to any eligibility to work guidance, considering the severity of this policy if not followed correctly is a criminal offence.

·        Our eLearning platform does not contain any training regarding right to work ROI policy, it only contains training for the UK version.

·        There is nothing included in our handbook with regards the right to work.

·        Contracts of employment are being given to staff without HR having proof of right to work, contracts of employment are the responsibility of HR.

·        Security rules that are issued to all colleagues and managers do not contain anything with reference to right to work guidance, despite everything relating to security being contained within the rules, I feel this is a security policy.

·        It has been stated that the colleague in question applied for his renewal after the expiry of their current permit which meant that they were considered out of permission and therefore not legally permitted to work in Ireland. The colleague received his acknowledgement receipt of his renewal at one minute past midnight on the 01.01.23 so that the date on his acknowledgement email was the 01.01.23, yet when I questioned the colleague regarding status in uploading and sending his application online to emigration he verbally confirmed that he sent it on the 30.12.22 This means that he is entitled to work on the same conditions for eight weeks until his new card arrives. Therefore, it is my belief that he did not work without having a valid permit.

·        I believe the sanction I have received to be unjust considering the length of my service of 18 years, the unquestionable loyalty and dedication I have shown and the fact that I have not received any other sanctions during my time working with the company.

·        The implication that I intentionally committed a criminal offence is unjustified and devastating to me both personally and professionally.

The sanction given for conduct following a disciplinary procedure is disputed by the Claimant and the Respondent refutes this claim in its entirety.

Background to the issue.

This complaint has been submitted by the worker on the 6th of September 2023 following a disciplinary procedure that took place on the 7th of April 2023 whereby the worker was issued a Final Written Warning which was subsequently reduced to a Written Warning after an appeal which was held on the 29th of May 2023.

Mid December 2022 a student was hired on a stamp 2 visa that was due to expire on the 31st of December. The worker had stated she was happy that the employee would apply for his renewal as soon as his certificate of attendance was issued which would be before the 31st of December. The worker stated that the certificate of attendance was issued on the 30th of December and confirmed with documentation.

The worker stated that she was made aware by a colleague that once the new starter applied for the renewal before the expiry date, he would then be able to work with the same permission for 8 weeks while waiting on his new card. The employee applied for the renewal on the 1st of January 2023, a day after the date the renewal should have been applied for in order for the grace period to apply. The worker accepted the employee’s acknowledgement receipt of the renewal and the employee continued to work.

On the 9th of February 2023, the worker emailed the HR department to ask what would happen after the 8-week period if the card didn’t arrive. The worker stated that she was advised to suspend the employee without pay until the renewal arrived. The employee received the renewal on the 1g visa on the 27th of February 2023 and the worker forwarded it to HR. Following this, the employee returned to work.

On the 24th of March, the worker’s Direct Manager advised the worker that there would be an investigation into this matter in addition to breach of company policy. Notice for the investigation was given on the 31st of March 2023 which progressed to a disciplinary hearing on the 7th of April 2023. The worker was issued a Final Written Warning which was reduced to a Written Warning after an appeal hearing. The worker has stated that she believes the sanction was unfair, thus a complaint was submitted to the WRC.

Respondents position.

Following a thorough disciplinary process the Employer found that the Worker breached the legal requirement that all colleagues working in the store must have a valid permit permitting them to work in Ireland, as detailed in the “ROI eligibility to Work Guidance” policy.

The Employer found that the Worker did not complete the monthly permit tracker and did not send a copy of the colleague’s permit to HR meaning there was no details recorded by HR of when the colleague’s permit expired. This meant that the colleague continued to be employed by the Employer after the expiry of their employment permit. Although the employee applied for their renewal it was after the expiry of their current permit which meant they were considered as being out of permission and therefore not legally permitted to work in Ireland.

The Worker received an email from the immigration department showing the date of application of the 1st of January 2023 but still felt that the employee was legally allowed to work without any formal documentation from the immigration department.

The impact of not following this process meant that the company had potentially breached the “Employment Permits Act 2003” by having a non-national work in the business without a valid employment permit, which is a criminal offence, and the company could possibly be subject to a fine or imprisonment. During the disciplinary and appeal stages the Worker was advised that she was just required to ensure the permit was valid and to contact people point for support. The Worker stated at the time that she saw the letter and the date of 1st Jan and time of 00.01 but believed it was in time. At no stage did the Claimant notify HR. HR was notified 6 weeks later and the department was not contacted until an investigation on the issue commenced. The tracker process confirms that monthly reminders were sent to the Claimant, if a manager forgets to complete the tracker they are prompted. 

The 8-week grace period was based on the application being made before the expiry of the previous permit. The application was received at 00:01 the next day. In this case the Worker stated she knew of the policy and need to complete the tracker. The Worker also confirmed that she had reviewed the application from the candidate and the Immigration website and believed the employee was still entitled to the 8-week extension.

The Claimant stated she knew of the policy and need to complete the tracker. The Claimant stated that she had reviewed the application from the candidate and the Immigration website and believed the employee was still entitled to the 8-week extension. The Employer argues that it was not for the store manager or anyone in the company to make that decision, the matter should have been queried with the department at the time. It wasn’t until the investigation process that the Worker contacted the department. The Claimant should have raised the matter with HR where they would have supported with this process. Instead, the Worker only reached out to the Department after an investigation was initiated.

A sanction was issued on the grounds that it was deemed that the employee worked in store without having a valid permit for a period of 2 months and no colleague was recorded on the permit tracker nor copies of their permit were provided to the HR department. The Worker failed to follow company policy which could potentially have significant ramifications on the company.

The Employer’s position remains the same, that it was not for the Worker or anyone in the company to make the decision that the employee submitted the renewal on time to comply with the 8 week grace period and that it should have been brought to the attention of HR and queried with the Department of Enterprise, Trade and Employment at the time the employee was due to start.

The Department of Enterprise, Trade and Employment states that “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”.

The Employment Permits Act 2003 states under section 2.”—

(1) A non-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 (an “employment permit”).

(2) A person shall not employ a non-national in the State except in accordance with an employment permit.

(3) A person who contravenes subsection (1) or (2) 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), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both”.

 It is an offence under the Employment Permits Acts 2003 and 2006 for both an employer and an employee to have a non-EEA National in employment without an appropriate employment permit. 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. If, however, their current permission expired prior to applying for renewal, they are considered out of permission and therefore not legally permitted to remain or work in the State. The Employer argues that the Claimant did not follow the correct procedures as set out in the company policy on “Eligibility to Work Guidance”.

The Employer was not made aware of the issue detailed in the complaint until the Worker asked HR what will happen if the permission from the department is not received by the end of the 8-week grace period.

The Employer has made a number of changes to the Eligibility to Work Guidance policy since this issue arose to include the legal implications for both the company and the team member of not adhering to the relevant legislation (European Communities (Reception Conditions) Regulations 2018 to 2021), further information around documentation requirements and company process for candidates who are eligible to work based on International Protection was also included along with further detail on each stamp type.

The company policy outlines “If you have a colleague who has a work permit (IRP) and is working in your store you must notify People point with the relevant details. You must also ensure that the expiry date is adhered to and request your colleague to provide you with details/new date(s) of their new permit/stamp. If this is not provided by the colleague, you must contact People point immediately”. The Worker failed to follow this instruction.

In relation to the procedures used to implement this sanction the Worker was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Worker was informed in advance as to the nature of the allegation against her. She was afforded the right to representation.

She was further provided with a fair and impartial hearing, at which she was given every opportunity to respond to the allegations against her. All the evidence in its entirety was considered, including the Worker’s representations before any decision was made or action taken. In light of all of the above, the respondent believes that the sanction issued, and process taken was procedurally fair in all respects.

When considering what sanction to apply, the company had regard to the seriousness of the allegations, the impact of the Worker’s decision on the company and the representations made by the Worker within the process itself.

In relation to the sanction imposed by the respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd vLooney, UD 843/1984 is as follows: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is the Employer’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to issue a Written Warning was reasonable and fair in the circumstances. 

Conclusion

 In conclusion, it is the Respondent’s position that the sanction given was fair and reasonable. The Employer respectfully requests the Adjudication Officer to reject the Worker’s claim under the Industrial Relations Act 1969 and to find in favour of the Employer.

As a company, the Employer’s diligence and adherence to the legislation surrounding eligibility to work in Ireland is vital. Aside from their moral obligation, an employer who contravenes the European Communities (Reception Conditions) Regulations 2018 to 2021 is guilty of an offence and shall be liable on summary conviction to a class A fine (up to €250,000) or imprisonment for a term not exceeding 12 months, or both.

The Employer refutes the claim that the Claimant was issued an unfair sanction. The Worker was issued a Written Warning following a thorough process, undertaken by the Employer to ensure maximum fairness and transparency was afforded to the Worker, in accordance with fair procedures and natural justice.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The representative for the employer has quoted the case law in Looney and Co Ltd v Looney UD834 / 1984.

Looney and Co Ltd v Looney UD 834/1984 was a case in relation to dishonesty in the workplace. This case does not relate to dishonesty.

Relevant considerations in assessing the employer’s reasonableness may include whether the employee’s behaviour was deliberate, whether the employer delayed its investigation, whether the employee attempted to cover up the conduct, or denied it, or attempted to change his/her story during the employer’s investigation , whether the employer’s , expressed in the contract of employment or otherwise, adverted to the wrong in question so that the employee knew that what he/she was doing was a disciplinary matter , whether the employee was unable to explain his / her behaviour, or did not immediately refute an allegation of dishonesty when put to him / her by his /her employer.

In the instant case it would appear that the worker made a mistake in the handling of the visa application – I don’t believe there were any deliberate actions on the part of the worker.

The visa application process and rules look quite complex. Was the system adopted by the employer robust enough? The fact that the employer changed the rules/system shortly after this incident may suggest that it was not robust enough and did the worker receive adequate training in how to operate this process. From what was said at her appeal hearing she received no training or very little training.

Having fully considered this matter I believe the worker has been dealt with in an unfair manner and would now recommend that any disciplinary sanction be removed from her file and no records kept. She should also receive the bonus that was withheld from her as part of this sanction.