Complainant

Respondent

Parties

Rodrigo  Santana

Easy Hotel  Ltd

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Sehnita Dhaliwal

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-00068244-001

19/12/2024

The Complainant was employed by the Respondent as a part-time night receptionist.  He commenced employment on 29/03/2023 and worked three nights per week. His rate of pay was €12.50 per hour and he worked 20 hours per week.  His contract of employment was conditional on him having “the continued right to work in Ireland or any such location you will carry out your duties.  It is solely your responsibility to ensure that you have permission to work in Ireland at all times during your employment”.

The Complainant’s work visa was due to expire on 07/12/2024 and he submitted his renewal application on 02/12/2024.  As he did not have a valid permit after 07/12/2024 the Respondent notified the Complainant that he was “suspended without contractual pay as of 07/12/2024” due to the fact that he no longer held the right to work.

The Complainant submits that the Respondent was wrong in this decision and that he had a grace period of 8 weeks until his permit was renewed.  He submitted his complaint to the WRC on 19/12/2025.

The Complainant gave evidence on oath.  He confirmed that he was required to have a Stamp 2 Visa in order to work in Ireland.  His previous visa expired in March 2024 and the Respondent allowed him to remain at work until it was renewed.  When his current visa was due to expire on 07/12/2024 he was placed on unpaid suspension despite providing evidence to the Respondent that he had submitted his renewal application on 02/12/2024.  The Complainant believes that the guidelines allow him to work.  He submits that the relevant guidelines state:  “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”.

In response to some questions from the Adjudication Officer the Complainant confirmed that he was not actually dismissed but was suspended without pay.  The Complainant stated that when he reviewed the WRC complaint form he was required to select a category for his complaint.  The Complainant gave evidence that “there was no category related to suspension.  I chose the option of dismissal as that was closely related to my situation”. 

The Complainant submitted that the Respondent’s decision was not compliant with the law. He has been an immigrant since 2023 and he obtained no advise prior to submitting his complaint.  The Complainant stated that he was subsequently in contact with various organisations who advised him that once the renewal process was in place he should be granted the 8-week period of grace.  The Complainant gave evidence that he provided all those details and contact information to the Respondent but they ignored this.   The Complainant also stated that, to the best of his knowledge, he was the only employee to be suspended.   The Complainant stated that his visa was approved on 17/01/2025 and the Respondent lifted the suspension at that time.

The Complainant is seeking redress for the financial loss of €2,420.93 during his period of suspension. 

The Complainant was cross examined by Ms Sehnita Dhaliwal on behalf of the Respondent.  The Complainant agreed that there was no dismissal but he chose that heading as there was no other option.  The Complainant agreed that the letter of suspension confirmed that it was unpaid.  The Complainant also confirmed that the Respondent replied to his letter about the grace period query.  He stated that he then provided the Respondent with details of the Government website and other contact details which would confirm what the guidelines state.

It was put to the Complainant that the letter of suspension dated 06/12/2024 was clear.  The Complainant stated that the issue was not clear and the decision was not right.  The Complainant was asked how he knew that no other employee was involved in a similar situation and he confirmed that he was not aware of any other employee who was suspended for the same reason.  He said that he believed that if an employee was missing for any reason this would be observed.  The Complainant confirmed that the details in his redress calculations were based on the normal hours he would be rostered to work along with 8% for annual leave.

Ms Sehnita Dhaliwal gave evidence on affirmation on behalf of the Respondent.  She is the Human Resources and Learning Manager, ROI and UK.  She stated that in this case there was no dismissal.  The process followed by the Respondent was fair and based on the legal advice provided to them.  The Complainant did not submit his application on time to ensure that his visa would be renewed.  The facts are that the Complainant’s right to work had expired and the Respondent suspended his employment until such time as he provided valid proof of his right to work status.  This was clearly explained to the Complainant.  The Respondent lifted the suspension when the relevant confirmation was received.  In that context it is clear that there is no unfair dismissal claim to be heard.

In response to a question from the Adjudication Officer Ms Dhaliwal confirmed that when the Complainant’s previous work visa expired he was allowed to remain at work purely because an error was made by a manager who was employed by the Respondent at that time.  Ms Dhaliwal also confirmed that her understanding of the 8-week grace period was that this related to the right to residency and not specifically the right to work.

Mr Enrico Galderisi, Hotel Manager, also gave evidence on affirmation on behalf of the Respondent.  He confirmed that he issued the letter of suspension after the Complainant failed to provide the documentation which was required.  Mr Galderisi said that the Complainant failed to submit his application on time and it is generally understood that there is a lead time with these applications.  The Complainant did not do so and it is the Complainant’s responsibility to ensure that the documentation is valid and up-to date.

Ms Dhaliwal was cross examined by the Complainant.  She was asked to clarify her understanding of the immigration guidelines in relation to the renewal of a Stamp 2 Visa. She outlined that the guidelines do not specifically say that the 8-week period applies to work.  It is in only relation to residency in the State.  Ms Dhaliwal confirmed that the decision to suspend the Complainant was taken after they had obtained legal advice in relation to the situation.   It was put to Ms Dhaliwal that the 8-week guidelines state that an applicant is “still legally permitted to remain in the State on the existing conditions of their current IRP card for a maximum of 8 weeks”  and the includes the right to remain at work.  Ms Dhaliwal stated that the Respondent obtained legal advice and took that advice.  Ms Dhaliwal also stated that the Complainant’s contract of employment had an express provision that it was his responsibility to ensure that he had the necessary permission to work in Ireland at all times during his employment.  His continued employment was dependent on having the appropriate visa.

CA-00068244-001:  The Complainant has submitted a complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977 arising from his suspension from his employment with the Respondent from 07/12/2024 until 12/01/2025. 

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)             “In this Act –

“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) 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, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, it is clear that the Complainant was not dismissed.  It is not disputed that the complainant was not dismissed.  Rather the Complainant is seeking to have his unpaid suspension 07/12/2024 until 12/01/2025 converted to or treated as a dismissal. 

Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the parameters provided by relevant legislation.

It is clear that the complaint in this case falls not only outside the statutory definition of dismissal.  I find that the Complainant was not dismissed.  Therefore, I find that this complaint is not well founded. 

For the reasons outlined above I have decided that this complaint is not well founded.

Suspension.  Dismissal.