EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Florentina Popa – claimant UD1319/2012
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr D. Moore
Mr J. Maher
heard this claim at Dublin on 22nd October 2014 and 17th December 2014
Claimant(s) : Mr Michael Kinsley BL instructed by
Mr Gheorghe Manea
Nahoi & Co, Law Firm
334 North Circular Road, Phibsboro, Dublin 7
Respondent(s) : Mr Alan Dodd BL instructed by
Mr Michael Traynor
Gill, Traynor Solicitors
39-41 Sundrive Road, Kimmage, Dublin 12
Summary of Respondent’s Case:
The respondent operates a restaurant franchise outlet on Parnell Street, Dublin. The respondent is also a director of a company (company b) which operates other restaurants within the franchise. While the claimant’s employer was identified as the respondent, she and other employees, also worked in the other outlets in Swords and Phibsboro which the respondent was involved in.
The claimant is a Romanian national. The General Manager gave evidence that in November 2011 he was informed by the franchise head office that NERA had inspected the head office branch and intended to inspect all the franchise outlets and would be investigating the visa status of Romanian and Bulgarian employees. At this time Romanian and Bulgarian citizens had restricted access to the Irish labour market. He immediately went through staff files to identify the staff members concerned.
He called a meeting with the Romanian employees in December 2011 at the Parnell Street outlet. He informed the employees that they required to either be enrolled in a college course or have a work permit. He said they would meet again after Christmas. The respondent was not in a position to fund work permits. He copied the employment permit information to all the employees at the meeting.
A further meeting was held on 23rd February 2012. One employee said he had enrolled in a course. Two others were in the process of claiming Hungarian citizenship. The General Manager phoned colleges to find out about fees. When he told the claimant she said she was not interested. He had no recollection of the claimant offering to pay for her own work permit. He was unaware that the claimant had previously been enrolled in a college course while she was employed at the restaurant. She did not bring this to his attention. He disputed that she told him she was pregnant the week prior to finishing.
The claimant and the three other Romanian employees without a permit or enrolled in college were dismissed. There was no issue with the claimant’s employment. Had she the relevant visa she would have continued in the employment. Numerous employees had taken maternity leave. He disputed that after the dismissal the claimant was offered a job at a different outlet for €6.50 per hour.
A Director gave evidence that she provided work permit information to the General Manager which she obtained from the NERA and Department of Jobs, Enterprise and Innovation websites. There was a period in the claimant’s employment where she went from the respondent’s employment to company b’s employment from October 2009 to June 2010. She was unaware of any incident with the claimant which preceded the permit issue.
The claimant told the Tribunal that the meeting with the General Manager in December was not about anything other than the build up to the busy Christmas period. She did seek information about permits and was given a form for her employer. A work permit would cost €1000 euro or she could return to college. Her employer would not fund the permit so her only option was to return to college. She told the General Manger she was pregnant and did not have a chance to return to college as she was let go just after St Patrick’s Day. She received a phone call some time later to say that there was a position in the Rathmines branch at a rate of €6.50 per hour, a rate below Minimum Wage.
The Tribunal carefully considered the evidence, together with the legal submissions made and documents submitted during the hearing.
It is clear from the evidence that the respondent, based on the information that he had to hand at the material time, which said information was obtained from various State bodies, formed the opinion that the claimant could not legally remain on in his employment without either obtaining a permit or attending a college listed on the internationalisation register. The Tribunal is satisfied that the respondent genuinely believed that the claimant could not legally work for him in the absence of the above and it was on that basis alone that he dismissed her.
It would seem that the claimant shared the respondent’s belief that she needed to obtain a permit or attend college. It was not until she instructed Counsel that it come to light that she was legally entitled to work in the State based on her previous history.
The Tribunal can find no evidence to support the claimant’s allegation that she was dismissed because she was pregnant.
The claimant had a legal obligation to mitigate her loss. The claimant made the decision to stay at home and care for her daughter who was born in November. Very little evidence was submitted showing attempts to secure employment. The Tribunal are obliged to take this into account when assessing compensation.
The Tribunal pursuant to the Unfair Dismissal Acts award the claimant the sum of €2,000 and pursuant to the Minimum Notice & Terms of Employment Acts 1973 to 2005 award the claimant €512.50.
Sealed with the Seal of the
Employment Appeals Tribunal