Worker

Employer

Anonymised Parties

Care Worker

Healthcare Provider

Representatives

Self-Represented

Kenndy’s Solicitors

Act

Dispute Reference No.

Date of Receipt

Dispute under Section 13 of the Industrial Relations Act 1969

IR - SC - 00002802

30/06/2024

The Worker commenced employment with the Employer on the 11th June 2024. The Worker’s tenure lasted three days only, with the contract of employment being terminated on 14th June 2024. The Worker referred the present dispute to the Commission on 30th June 2024.

On foot of the Employer’s failure to object to the matter proceeding to hearing within the statutory timeframe, a hearing was convened for, and finalised on, 11th October 2024. The hearing was in person and held at the Commission’s Carlow offices.

The Worker’s complaint form set out the outline of her complaint, while the Employer set out their position verbally at the hearing of the matter.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

By submission, the Worker stated that she was engaged as a care assistant by her former employer. In mid-2024, the Worker interviewed for a position within the Employer organisation and was successfully appointed to the role. As part of the interview and on-boarding process, the Worker was required to provide proof of visa status, as a non-EU resident. In this respect, the Worker provided a copy of her GNIB card which, in her view, confirmed her entitlement to both work and reside in the state. As the Employer raised no issue with the document provided, the Worker assumed that all was well, and she commenced work on 11th June 2024. On the fourth day of her employment, a HR representative for the Employer contacted the Worker and informed her that her contract of employment was to be terminated as, in their view, she did not have an entitlement to work in the state. Despite the Worker protesting this position, the Employer maintained that her employment was terminated on 11th June.

By submission, the Worker stated that she had, in fact, an entitlement to work and reside in the state. In this respect, she stated that was engaged in employment prior, and subsequent, to this employment on the same visa status. Notwithstanding the same, she submitted that if the Employer had a difficulty with the Worker’s visa status, this should have been flagged prior to her commencing the role and leaving her previous employment. During the hearing, the Worker outlined that her leaving her prior employment, and having to gain further employment following her dismissal, caused her significant financial and emotional difficulty.

By response, the Employer agreed with much of the factual matrix presented by the Worker. In this respect, they submitted that the Worker was interviewed for the role on 13th May 2024, with a job offer following on that day. As part of the standard on-boarding process, the Worker was asked to provide various documentation, including proof of the right to work in the state as a non-EU citizen.

On 10th June 2024, just prior to the Worker commencing employment, her file was reviewed by HR. During this review process, HR determined that the Worker had not provided sufficient proof of her right to work in the state. In this respect, it was discovered that the documentation provided by the Worker allowed for a right to reside in the state, without an express right to work. On foot of the same, the Worker was asked to provide proof of her right to work on that date. Over the next number of days, HR asked the Worker, on a number of occasions, to provide confirmation of her right to work in the state. While documentation was offered, and it was not alleged or implied that the Worker was in any way seeking to mislead the Employer, it was determined that this documentation again did not set out a right to work. On 14th June 2024, the Employer determined that the Worker could not demonstrate that she had a right to work in the state and consequently her employment was terminated.

By submission, the Employer stated that the rules regarding the employment of non-EU citizens are strict, with significant obligations placed on employers in this regard. The Employer stated that as part of their standard on-boarding process they requested proof of the Worker’s visa status. While the Worker was given every opportunity to provide the same, unfortunately she did not satisfy the Employer’s requirement in this regard. On foot of the same, the Employer determined that the Worker employment should be terminated. In this respect, they commiserated with the Worker but stated that it would have been illegal for them to continue with the Worker’s employment in the circumstances.

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

The present dispute relates to termination of the Worker’s employment on the grounds of a failure to provide documentation that would demonstrate her right to work in the state. While it is common case that the Employer is subject to strict regulatory requirements in this respect and cannot employ a person that cannot provide adequate proof of their right to work in the state, the worker submitted that she did in fact satisfy this criteria. In addition to the foregoing, the Worker further submitted that this issue should have been flagged prior to her commencing the role, and leaving her previous employment.

In this regard, it should be noted that the documentation provided by the Worker outlined that she enjoyed a right to reside, as opposed to a general right to work, in the state. While the Worker stated that this has since been rectified, and that the matter simply related to paperwork, it is apparent that the Respondent was correct in terminating the Worker’s employment on foot of a failure to provide such documentation. Notwithstanding the same, the Worker submitted that if this was the position of the Respondent, this should have been flagged to her earlier, so as to avoid the undoubted disruption of her leaving her prior role and thereafter being obliged to find further employment.  In this regard, it is noted that the Complainant attended for an interview with the Respondent approximately one month prior to commencing employment. On this date, she was awarded the job and was asked to provide the relevant information. While the Worker did so to her own satisfaction, approximately one month later, and just prior to the Worker commencing her employment, the issue of her visa status was raised. In this respect, it was noted while it is for the Worker to ensure that their visa status is in order, a reasonable employer would be expected to confirm the same prior to issuing a job offer, or to make the job offer itself contingent on receipt of the same. In the present case, this is not was occurred and the Worker was offered the role on the day of the interview, without the Employer properly confirming this position. Thereafter, the Worker’s employment commenced in the absence of such documentation and with the issue being flagged by HR.

Having regard to the foregoing, it is apparent that there is an aspect of blame to both parties in relation to the present dispute. In such circumstances, I partially agree with the Worker’s submission. While she did have an obligation to ensure that her visa status was in order, the Employer should not have permitted her to commence employment in the absence of the same. In this regard it is further noted that the Employer did not raise the issue in question for some four weeks, during which the Worker had left her former employment.

Visa status, Obligation, Due Diligence