Complainant

Respondent

Parties

Felipe  Rocha Sales Junior

Foxfield Inns Dac Ashling Hotel

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Colin Deevy

Grace O'Malley IBEC

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-00059725-001

31/10/2023

The Complainant is a non-national who was employed with the Respondent until 31st October 2023.

The Complainant was employed as a Chef on a Stamp-2 education visa allowing work of 20 hours per week and 40 hours per week on holidays. He sought employment with the Respondent on a Stamp 1 visa as Chef five months prior to the expiry of his Stamp 2 visa. He took the position of Junior Sous Chef on assurances from HR that they would process the Stamp-1 visa on his behalf. He was assured the Hotel were processing the paperwork.

The Complainant became concerned as other colleagues were receiving their visas within 3-4 weeks. As his visa was shortly due to expire, he contacted HR to express concern. On 31 July 2022 the day his visa expired, HR admitted no application was lodged. HR then lodged their first Stamp 2 visa application. The Complainant was deeply concerned that his Stamp 2 visa had expired, and this might affect his application for Stamp 1 visa. In September 2022, he was promoted to Sous Chef. In February 2023, he approached management and proposed an alternative process, that the hotel would sponsor a culinary course of study. Instead, the hotel proposed their lawyer be tasked to follow up. By July 2023 no progress had been made. The Complainant still did not have a visa and was not able to work elsewhere. The Stamp 1 visa was a key condition of the Complainant’s employment with the Hotel in February 2022.

As the hotel delayed and prevaricated in securing the Complainants position in Ireland, he was forced to leave a position he loved. This had a significant impact on the Complainants personal life, and financial status, he had to leave his family unit in Ireland due to financial issues, caused difficulty for the Complainant returning to his home when a disaster occurred in order to provide support to family, and he could not obtain a driving licence.

The Complainant seeks compensation for constructive unfair dismissal.

The Complainant was employed by the Respondent from 31 July 2022 in the capacity of Chef de partie. He held a Stamp 2 visa for educational purposes and was entitled to work in casual employment for a maximum of twenty hours per week and forty hours per week during holidays.

In August-September 2022 the Respondent applied for a General Employment Permit on behalf of the Complainant. On 6th September 2022, the application was refused due to a lack of sufficient evidence in relation to the role.

On 25th February 2023, the Complainant emailed HR regarding the status of his visa application and offered any assistance required. On 12th May 2023, the Respondent received an email regarding refund for an unsuccessful application. The Complainant emailed again, and was requested to sign a visa application on 26th June 2023. On 3rd July 2023, the Respondent was informed the application was rejected due to a failure to conduct a Labour Market Needs Test, lack of copies of the role advertisements in newspapers and job sites. The role was then advertised in the Irish Independent newspaper.

On 21st July 2023 another application for a General Employment Permit was made by the Respondent. This was rejected on 24th July 2023 due to failure around the Labour Market Needs Test. A copy of the advertisement was not provided, and they failed to advertise the role on an acceptable recognised website. The Complainant sent an email on 7th October 2023 to the General Manager expressing his difficulty addressing his concerns around his visa, the personal and professional impact and handling of the application. On 10th October 2023, the Complainant emailed management to inform them he was submitting his resignation from his role as of 31 October 2023. The Respondent met with the Complainant to discuss the outstanding issues regarding his employment permit.

The Respondent submits that as the Complainant is a native of Brazil, he is required to hold a work permit in order to work in Ireland. His Stamp 2 visa expired on 31st July 2022. The Complainants contract of employment was tainted with illegality during the period 31 July 2022 until his resignation on 31st October 2023.  The Complainants claim of unfair dismissal was lodged on 31st October 2023. The Respondent relies on the decision of the Labour Court in TA Hotels Limited t/a Lynams Hotel v Vireshwarshing Khoose RPD 1916 where a worker referred a case under the Organisation of Working Time Act 1997. The Labour Court found the contract of employment was tainted with illegality and therefore unenforceable at law.

S2 (1) of the Employment Permits Act 2003-2014 provides:

“A foreign national shall not-

Enter the service of an employer in the State, or be in employment in the State, except in accordance with an employment permit granted by the Minister under S8 of the Employmet Permits Act 2006 that is in force”.

The Respondent submits that it applied for the Stamp 1 visa on a number of occasions on the Complainants behalf, the Complainant was fully aware of the process and his failure to renew his Stamp 2 visa or to request a General Employment Permit in a timely manner contributed to the termination of his employment. It is submitted that the onus to apply for a work visa rested with the Complainant and not solely with the Respondent. The Complainant was informed in advance of the issues arising from failure to be in possession of a valid work permit and consequences of not renewing it.

The Complainant claims constructive unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The Respondent submits the Complainant has not demonstrated that:

(a)    The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

(b)   The employer had acted so unreasonably as to make the continuation of employment intolerable and it was reasonable for the employee to resign.

The Respondent submits it did not breach any terms of the contract of employment between the parties. It relies on the decision in Conway v Ulster Bank UD474/1981 that there was no change to the Complainants contract of employment. The Respondent states it acted reasonably and fairly at all times in accordance with its policies, and best practice. It became apparent that the Stamp 2 visa expired and the Complainant was placed on lay-off. The Respondent submitted three applications for a General Employment Permit assuming all responsibilities, costs and expenses for the applications.

The Respondent says the Complainant failed to invoke the grievance procedure and submit a formal grievance prior to resigning. He had raised the issue on email but did not exhaust the grievance procedure to attempt to remedy his complaints. He had not acted reasonably prior to resigning. The Respondent relies on Travers v MBNA Ireland Limited UD720/2006 and Fitzsimons v Mount Carmel Hospital UD855/2007 that the Complainant’s resignation does not satisfy the reasonableness test and cannot amount to constructive dismissal.

I heard and considered the submissions of the parties and evidence adduced.

The Complainant’s claims unfair dismissal pursuant to S 6 of the Unfair Dismissals Act 1977-2015, and he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Complainant received a written contract of employment from the Respondent dated 21st July 2022. At the time he became employed as Chef, he had a Stamp 2 education visa allowing him to work part-time twenty hours per week and full-time hours when on holiday. It is accepted that the Complainants Stamp 2 visa expired on 31st July 2022.

S2 (1) of the Employment Permits Act 2003-2014 provides:

“A foreign national shall not-

Enter the service of an employer in the State, or be in employment in the State, except in accordance with an employment permit granted by the Minister under S8 of the Employment Permits Act 2006 that is in force”.

The law is clear that an employee cannot be legally employed unless they hold a valid employment permit as held in Hussein v. The Labour Court [2012] IEHC 364; [2012] 2 I.R. 704; [2012] 2 I.L.R.M. 508 (Hogan J on 31st August 2012). The Complainant’s contract of employment with his Stamp 2 permit as a Chef was lawful until 31st July 2022. Where an individual is employed following the expiry of an employment permit, the contract of employment is void for illegality.

Section 3 of the Employment Permits (Amendment) Act 2014, which was enacted subsequent to the decision in Hussein v The Labour Court [2012] inserted subsection (3A) in section 2 of the Employment Permits Act 2003:

“(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).”

In addition, S2B of the Employment Permits (Amendment) Act 2014 provides:

Civil proceedings

2B. (1) This section applies to a foreign national who, in contravention of section 2(1) —

(a) had entered the service of an employer in the State, or

(b) was in employment in the State,

without an employment permit granted by the Minister under section 8 of the Act of 2006 that was in force and who is no longer in such service or employment.

(2) Where an employer referred to in section 2(1)(a) or, in the case of employment referred to in section 2(1)(b), a person referred to in section 2(1A) (a) or a contractor referred to in section 2(1A)(b) —

(a) has not paid a foreign national to whom this section applies an amount of money in respect of work done or services rendered during the period for which the foreign national was in the employment or service without an employment permit, or

(b) has paid an amount of money that was, having regard to the work done or services rendered during such period, an insufficient amount of money,

the foreign national or, in accordance with subsection (5), the Minister, may institute civil proceedings for an amount of money to recompense the foreign national for such work done or services rendered.

In the Labour Court decision TA Hotels Limited t/a Lynams Hotel v Vireshwarshing Khoose RPD 1916 the Court found the amendment to the Employment Permits Act was intended to allow a worker who cannot claim wages due because his contract is void or unenforceable can seek an award of quantum meruit a common law remedy available from a Court. This remedy is not available from the Labour Court which is a statutory tribunal.

The Complainant was validly employed until 31st July 2022. His complaint of unfair dismissal was received by the Workplace Relations Commission on 31st October 2023 which is outside the statutory time-limit applicable under S41 of the Workplace Relations Act 2015. In the circumstances, I find the contract of employment relied upon by the Complainant for the within complaint is tainted with illegality and therefore unenforceable in law.

The complaint is not well founded.

The contract of employment relied upon by the Complainant for the within complaint is tainted with illegality and therefore unenforceable in law.

The complaint is not well founded.