Complainant

Respondent

Parties

Timothy  Rodriguez

Wincanton Ireland Limited

Representatives

Alice Heron MS Solicitors

Aoife McDonnell, 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-00049167-001

11/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049167-002

11/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045530

04/08/2021

The Complainant commenced employment with the Respondent on 31st October 2019, he was employed initially as a warehouse operative. Employment ended on 4th November 2021.

The Complainant made two complaints to the Workplace Relations Commission, the first complaint was made on 4th August 2021 and a second complaint was made on 11th March 2022.

Complaint number one was allocated the file reference number ADJ – 00034455 (CA – 00045530).

The second complaint was allocated file reference ADJ – 00037842 (CA – 00049167 – 001 and CA – 00049167 – 002).

Following a request from the Complainant’s representative both complaints were heard together. The Respondent’s representative did not object to hearing the complaints together.

This decision covers all complaints.

PRELIMINARY ISSUE

1.              The complaint relates to non-payment of wages by the Respondent and Mr Rodriguez’ entitlement to outstanding payment for public holidays, as well as annual leave, per sections 19 and 21 of the Organisation of Working Time Act 1997.

2.              Following the making of this complaint, Mr Rodriguez remained on unpaid suspension, in spite of having furnished the evidence that had was entitled to work in the State on a number of occasions. The Respondent, while inviting him to return to work, refused to pay the unlawful deductions. On this basis, Mr Rodriguez had no choice but to leave his employment at Wincanton Ireland Limited.

3.              Further, despite Mr Rodriguez being at all relevant times lawfully in the State, as his suspension was based entirely on his immigration status, which is directly related to his nationality and race, Mr Rodriguez’ treatment constitutes discrimination within the meaning of the Employment Equality Act 1998, as amended, on the ground of race.

4.              In order to protect his position, Mr Rodriguez has, within the relevant limitation period, made further complaint in relation to these aspects of his case in March 2022. At the hearing of 6 April 2022, the Adjudication Officer determined to hear these complaints together and the Commission has confirmed that the instant hearing is an amalgamation of all complaints.

5.              Accordingly, Mr Rodriguez respectfully requests that the Commission exercise its discretion to accept the complaint of constructive dismissal pursuant to section 6 of the Unfair Dismissals Act 1977 and the complaint of discrimination pursuant to section of the Employment Equality Act 1998.

6.              Per Charleton J in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210 at [24], the Commission is entitled to do so:

For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it.

7.              In those circumstances, given that dismissal arises directly from this compliant, the main factual thrust of which are not in dispute, it would be a more efficient use of the Commission’s own valuable time and resources to exercise its discretion to add these complaints.

8.              The Respondent would be in no way prejudiced by the Commission’s addition of this complaint as it arises from the exact same factual issue as the instant complaint and is known to them. The Respondent has been put on notice of this application.

9.              Insofar as it is alleged the additional complaints are outside of time, which is denied, it is respectfully submitted that time be extended. that any extension would be marginal, and the Respondent accrues no prejudice. Further, the Complainant now resides in the United States as a result of having been constructively dismissed by the Respondent and has sought to prosecute his complaint as best he can in the circumstances. Accordingly, insofar as is necessary, there is reasonable cause to extend the time, and to not do, if necessary, would facilitate the Respondent’s unlawful dismissal of him.

Introduction.

10.           These written submissions are furnished on foot of the Complainant’s complaint of 4 August 2021 and the further complaints of March 2022.

11.           The Complainant will allege that he did not receive his wages contrary to the express terms of his contract of employment, which, in effect constitute an unlawful deduction form his wages for the purposes of sections 5 and 6 of the Payment of Wages Act 1991.The Complainant will also allege that contrary to sections 21 and 22 of the Organisation of Working Time Act 1997, he did not receive his public holiday entitlements. The Complainant will allege that contrary to sections 19 and 20 of the Organisation of Working Time Act 1997, he did not receive his paid holiday and annual leave entitlements.

12.           The Complaint will also allege that despite being at all relevant times lawfully in the State, as his suspension was based entirely on his immigration status, which is directly related to his nationality and race, Mr Rodriguez’ treatment constitutes discrimination within the meaning of the Employment Equality Act 1998, as amended, on the ground of race.

13.           The Complainant will further allege that given the conduct of the Respondent in placing him on indefinite unpaid suspension, he was constructively dismissed contrary to section 7 of the Unfair Dismissals Act 1977.

BACKGROUND

14.           The Complainant is a warehouse operative and a national of the United States of America. The Complainant was at all relevant times the Respondent’s employee.

15.           The Respondent is a private limited company, carrying on the business of transportation and warehousing services, trading from 11 Rosemount Business Park, Dublin 11. The Respondent was at all relevant times the Complainant’s employer.

16.           Mr Rodriguez came to the State in July 2015. He was granted a permission on Stamp 4 conditions as the spouse of an Irish citizen, Claire Frawley, who he has since separated from. This was renewed and continued to be valid in itself until May 2020.

17.           As a non-national, Mr Rodriguez was granted a permission to be and remain in the State pursuant to section 4(7) of the Immigration Act 2004. Mr Rodriguez was granted permission on ‘Stamp 4’ conditions. This allowed him to work in the State without condition and without the need for an employment permit. There were no conditions on Mr Rodriguez’ right to work in the State.

18.           In and around August 2019, Mr Rodriguez was offered a full-time job as a warehouse operative by the Respondent.

19.           On 14 October 2019, Mr Rodriguez commenced employment. On 31 October 2019, he was provided with a Contract of Employment. Mr Rodriguez was also issued with copies of the following company policies:

a.     Wincanton Discipline Employee Guidelines;

b.     Wincanton Discipline Policy and Procedure;

c.     Wincanton Grievance Policy and Procedure.

20.           It was an express term of the Contract of Employment that:

a.     Mr Rodriguez be paid €10.50 per hour.

b.     Mr Rodriguez work 40 hours a week including lunch and rest.

c.     Mr Rodriguez must complete 26 weeks of probation.

d.     Mr Rodriquez was entitled to pro rata 20 days annual leave per annum.

e.     Mr Rodriguez was entitled to all public holidays.

21.           On 12 March 2020, the then-Taoiseach Leo Varadkar announced emergency public health guidance that from 13 March 2020 all schools, universities, childcare facilities and cultural institutions would close. This marked the beginning of the worldwide COVID-19 public emergency, which continues to date.

22.           On 20 March 2020, the Minister for Justice announced that given the public emergency, all immigration permissions due to expire from 20 March 2020 and 20 May 2020 would be automatically renewed for two months. On 13 May 2020, the Minister for Justice announced that given the public emergency, all immigration permissions due to expire from 20 May 2020 and 20 July 2020 would be automatically renewed for two months. On 16 July 2020, the Minister for Justice automatically renewed all immigration permissions due to expire from 20 July 2020 and 20 August 2020 for one month.

23.           On 18 August 2020, the Minister automatically renewed all immigration permissions due to expire from 20 August 2020 and 20 September 2020 for one month. On 18 September 2020, the Minister automatically renewed all immigration permissions due to expire between 20 September and 20 January 2021 to 20 January 2021. On 22 December 2020, the Minister automatically renewed all immigration permissions due to expire between 21 January 2021 to 20 April 2021 to 20 April 2021. On 26 March 2021, the Minister automatically renewed all immigration permissions due to expire between 21 April 2021 to 20 September 2021 to 20 September 2021.

24.           On 15 March 2021, Mr Rodriguez was promoted. His hourly wage increased to €10.80.

25.           On 20 March 2021, Mr Rodriguez applies for a separate permission to be in the State as the father of his Irish citizen daughter. On 24 March 2021, this is refused due a lack of documentation. This refusal does not affect his original permission to be in the State at all.

26.           On 5 February 2021, Mr Rodriguez was informed that following an audit of his file, his permission had expired on May 2020. On 2 March 2021, Mr Rodriguez emailed copies of the Minister’s renewal to Kristal Shum, which explained the situation.

27.           On 26 March 2021, Mr Rodriguez is given a disciplinary letter stating that he is to be indefinitely suspended without pay from 28 March 2021. On the same day, Mr Rodriguez emailed copies of the Minister’s renewal to Osman Osmanovic, which explained the situation.

28.           From 28 March 2021, Mr Rodriguez is indefinitely suspended without pay.

29.           On 5 April 2021, Mr Rodriguez applies for a separate permission to be in the State as the father of his Irish citizen daughter again. On 9 April 2021, this is refused. This refusal does not affect his original permission to be in the State at all.

30.           On 14 April 2021, the Respondent wrote to him arranging a meeting to discuss his eligibility to work on 20 April. Unfortunately, as he had just moved house, he did not receive this letter. On 10 May 2021, a second meeting is arranged for 14 May 2021.

31.           On 14 May 2021, at this meeting Mr Rodriguez again explains to the renewal of his permission to 20 September 2021. He is requested again to provide evidence of this.

32.           One the same day, he again sends the Minister’s renewals to Elaine Dunne.

33.           On 17 May 2021, Elaine Dunne again asks for this information, which once more he provides.

34.           On 18 May 2021, a further letter is sent by the Respondent seeking the same information. It states the information provided is “unclear”.

35.           On 27 May 2021, Ms Dunne requests the same information again.

36.           On 8 June 2021, Mr Rodriguez solicitors write to the Respondent again setting out the legal and factual position with regard to his permission to be in the State.

37.           On 15 July 2021, the Respondent organises a further meeting on 20 July 2021 for the same reason. This letter erroneously states that he did not provide any documentation.

38.           On 9 August 2021, Mr Rodriguez solicitors again write to the Respondent again setting out the legal and factual position with regard to his permission to be in the State. This letter also includes an email from the Department of Justice.

39.           On 13 August 2021, the Respondent invited Mr Rodriguez to return to work by letter.

40.           On 23 August 2021, Mr Rodriguez attends a meeting with Joe Croke. Mr Rodriguez states he will not return to work until the wages deducted are paid to him.

41.           On 26 August 2021, by letter the Respondent notes that Mr Rodriguez’ request for payment. This remains unanswered. It states that continued absence may result in discipline. The letter further requests that Mr Rodriguez supplies evidence of eligibility to work by 20 September 2021.

42.           On 12 September 2021, Mr Rodriguez left the State and travelled to Croatia. On 11 December, Mr Rodriguez returns to the United States.

43.           Numerous correspondence is sent to Mr Rodriguez by the Respondent. His request for the payment of the unlawful deductions remains unanswered.

44.           On 8 November 2021, Mr Rodriguez is dismissed as of 4 November 2021.

45.           Mr Rodriguez permission to be and remain in the State expired on 20 September 2021. At all relevant times, he was eligible to lawfully work in the State.

PERMISSION TO WORK IN THE STATE

46.           Given the context of the issues that arise, it is necessary to set out, in brief, the law relating to lawfully residing in the State.

47.           The primary legal basis for a non-national to enter and live in the State is section 4(1) of the Immigration Act 2004. This provides that an immigration officer may, on behalf of the Minister for Justice, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to as a ‘permission’). Under section 4(7), this permission may be renewed or varied by the Minister or by an immigration officer.

48.           Under section 4(6) an immigration officer may by a notice in writing or an inscription placed on his or her passport or other equivalent document, attach conditions as to duration of stay and engagement in employment, business or a profession in the State as he or she may think fit. Such conditions are commonly categorised by ‘stamp’ – which are administrative classifications – and a stamp is not a permission.

49.           A ‘permission’ is distinct from a visa, which, per section 1 of the Immigration Act 2003, authorises a person only to land in the State, that is to travel to Ireland. It does not allow someone to remain here. A permission is also distinct from proof of registration in the State. Section 9 of the Immigration Act 2004 requires non-nationals to register their permission. Registration is evidenced by a GNIB/Irish Residence Permit card. Failure to register does not affect the validity of a permission to be in the State at all, per Sulaimon v Minister for Justice [2012] IESC 63 – they are distinct.

50.           Accordingly, Mr Rodriguez was given a permission to be and remain in the State on Stamp 4 conditions in 2015 under section 4(1). A Stamp 4 allowed him to lawfully work without an employment permit. While this was initially due to expire in May 2020, it was extended by the Minister for Justice under section 4(7) until 21 September 2021.

PAYMENT OF WAGES

51.           Over the relevant period, the Complainant was entitled under his contract to be paid for every hour worked at an hourly rate of €10.50 – increased to €10.80 - for a 40-hour week. Mr Rodriguez was suspended without pay from 28 March 2021 until his constructive dismissal of 12 September 2021.This amounts to 24 weeks.

52.           The placing by the Respondent of him on unpaid indefinite suspension despite the repeated and prompt furnishing that demonstrated definitively that he indeed was lawfully resident in the State and was eligible to work constitutes a deduction within the meaning of the Payment of Wages Act 1991.

53.           Such a deduction, in circumstances where there was no lawful or factual basis for the suspension, is contrary to section 5 of the Payment of Wages Act 1991. Accordingly, Mr Rodriguez was unlawfully deducted €10,368 gross by the Respondent.

PUBLIC HOLIDAY AND ANNUAL LEAVE PAY

54.           The Complainant has public holiday and annual leave pay entitlements both under his contract of employment and accordingly constitute “wages” within the meaning of section 1 of the Payment of Wages Act 1991, and under statute under the Organisation of Working Time Act 1997. It is open to the Commission to determine this aspect of his complaint under either.

Public Holiday Pay

55.           Per section 21 of the Organisation of Working Time Act 1997, as amended, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave, or an additional day’s pay. Per Regulation 5(2)(b) of SI 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay.

56.           Mr Rodriguez’ contract further stated that where a Team Member works a public holiday, they will receive time and a half for the hours worked and also be paid for the public holiday.

57.           There are nine public holidays in Ireland, namely Christmas Day, St Stephen’s Day, January 1, St Patrick’s Day, Easter Monday, the first Monday in May, the first Monday in June, the first Monday in August and the last Monday in October. Over the relevant period, from 28 March 2021 to 12 September 2021, there were four public holidays in 2021.

58.           Mr Rodriguez was not provided with any of the four options as set out above under section 21 and was not paid for any of the 4 relevant public holidays. To that end, he is owed a fifth of his average weekly pay for each public holiday. =As a fifth of his average weekly pay should amount to 8 hours at €10.80, the Complainant is owed

€345.60 gross in respect of public holidays in 2021.

Annual Leave Entitlement

59.           Per section 19(1)(c) of the Organisation of Working Time Act 1997, as amended, the Complainant is entitled to paid annual leave equal to 8 per cent of the hours he works in a leave year, up to a maximum of four weeks. Mr Rodriguez’ contract states that he is entitled to 20 days of annual leave per annum pro rata, which is the same.

60.           The entitlement to be paid unconditional annual leave is seen as both a fundamental social entitlement and a matter of health and safety for employees. The fundamental social nature of this right was referred to with apparent approval by Lavan J in Royal Liver Assurance Ltd v Macken [2002] 4 IR 427 where he quoted from comments made by Advocate General Tizzano to this effect in Case C-173/99 R (BECTU) Trade and Industry Secretary.

61.           Up to 12 September 2021, he was entitled to 13.5 days of annual leave at €10.80 per hour. Prior to his suspension, Mr Rodriguez took 10 days of annual leave. Accordingly, is entitled to €302.40 gross, which he was not paid - for 3.5 (28 hours) days of holiday pay.

DISCRIMINATION

62.           Mr Rodriguez treatment both in and during his indefinite suspension can only constitute discrimination within the meaning of section 6 of the Employment Equality Act 1998, as amended.

63.           Mr Rodriguez is a national of the United States, at all times lawfully resident in Ireland.

64.           Section 6(1)(a) of the EEAs provides that direct discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...” Section 6(2)(h) defines the race ground as arising in circumstances where as between any two persons “that they are of different race, colour, nationality or ethnic or national origins”.

65.           Section 85A of the EEAs sets out the burden of proof which applies to all claims of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

66.           On four separate occasions, Mr Rodriguez furnished evidence that the Minister for Justice had automatically extended his permission, given the COVID-19 public emergency. This information was extremely easily verified by accessing the Department of Justice’s Irish Naturalisation and Immigration Service (now Immigration Service Delivery) website. The Respondent failed to do so.

67.           The Respondent placed Mr Rodriguez on immediate indefinite unpaid suspended leave – as set out below this is an extraordinarily draconian sanction. Mr Rodriguez was also obliged by the Respondent’s policies to remain available for work. Despite repeated efforts to resolve the matter, including instructing solicitors’ expert in immigration matters to act on his behalf who explained this further, this continued without end.

68.           These actions, which are based on his immigration status in the State, are directly and intimately related to his nationality. This treatment constitutes, at worst, indirect discrimination. It goes without saying that and Irish employee would not have faced such treatment – particularly the sanction of unpaid indefinite suspension. Such a person would be an appropriate comparator under section 28.

69.           Accordingly, Mr Rodriguez has established prima facie evidence of discrimination.

CONSTRUCTIVE DISMISSAL

70.           Given the manner in which Mr Rodriguez was treated by the Respondent – being placed on indefinite unpaid suspended leave for a reason that was lawfully and factually incorrect – as well as the employer’s unlawful refusal to renumerate him for the period in which he was suspended for all the reason above, he was dismissed from his employment in a manner that falls under sections 1 and 6 of the Unfair Dismissals Act 1977.

71.           Section 1 defines ‘dismissal’ 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,

72.           Section 6(1) provides that the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(6) provides that in determining whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

73.           As set out above, the factual basis for Mr Rodriguez unpaid indefinite suspension has been shown to be legally and factually erroneous. He attempted on four occasions to demonstrate that he was lawfully in the State and eligible for work – this appears to be at least implicitly accepted. The Respondent has not remunerated him for this period despite this, nor has the Respondent even apologised. On this basis, the failure to renumerate Mr Rodriguez constitutes a material breach of his employment contract, and it was reasonable for him to terminate the employment relationship on this basis.

Effect of Suspension

74.           Prior to examining the test for constructive dismissal, it is necessary to examine the approach taken by the Courts to suspension. Per Bank of Ireland v Reilly [2015] IEHC 241, Noonan J stated:

The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee's employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. Reilly's case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

75.           While undoubtedly the Respondent will seek to categorise the suspension as ‘holding’ doing so unpaid can only be punitive. Prior to his suspension, Mr Rodriguez had never been subject to any form of employee discipline before at all and there had never been any questions as to his lawful status in the State. For the Respondent to have immediately escalated to immediate unpaid indefinite suspension departs entirely from what a reasonable employer would do, and a departure from the Respondent’s own Policies governing disciplinary issues.

76.           Examples of proper suspension can be seen in the following decisions

a.     A General Operative v. A Beef Processors ADJ-00007571: Repetitive allegations of insubordination justified suspension.

b.     A Worker v. A Company ADJ-00008991: assault of a colleague justified suspension.

c.     Account Executive v. Insurance Company ADJ-00014822: suspension on full pay justified only where alternatives considered.

d.     An Post v Stephens UDD1867: aggressive altercation justified suspension.

e.     A Store Manager v. A Store ADJ-00020602: unwanted physical touching justified suspension.

f.      An Employee v. A Fish Processing Company ADJ-00002653: suspension unjustified where employer failed to follow own procedures.

77.           Very clearly as illustrated by the above decisions and the judgement, suspension is a recourse of last resort only in the most serious of disciplinary issues. This was clearly not the case here – Mr Rodriguez promptly and repeatedly provided evidence of his entitlement to work in the State.

78.           Further, numerous decisions have underlined that the employer must consider alternatives before suspending an employee. This did not occur here at all. See, inter alia: A Restaurant Manager v. A Restaurant Owner ADJ-00011746; General Operative

v. Manufacturing Company ADJ-00006103; Account Executive v. Insurance Company ADJ-00014822.

79.           Finally, numerous decisions have also set out just how severally damaging a decision to suspend is to the reputation of the employee given its public nature. In this case, Mr Rodriguez reputation was damaged as the action was premised on him being and working illegally in the State: See, inter alia, Philip Smith v. RSA Insurance Ireland Limited UD1673/2013;A Restaurant Manager v. A Restaurant Owner ADJ-00011746;Waterford Senior Care Limited Home Instead Senior Care v. Liam Tabb UDD1938; A Bar Manager v. A Bar & Restaurant ADJ-0001632.

80.           All of these above is exacerbated by the fact that the period was indefinite and unpaid.

Tests for Constructive Dismissal

81.           There are two tests for constructive dismissal – breach of a core term of the employment contract and where the employer has acted unreasonably. It is respectfully submitted both are met here.

Breach of Contract

82.           Per Cosgrave v Kavanagh Meat Products Ltd UD 6/1988, for an employee to rely on the breach of contract test they must prove that the breach went to the root of the contract or in the alternative that the employer no longer intended to be bound by the main terms of the contract.

83.           Per the Court of Appeal for England and Wales in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.

84.           Payment of wages is the most central term of a contract for employment. It is probably the primary purpose for employment. The placing by the Respondent of Mr Rodriguez on indefinite unpaid suspension and then refusing to renumerate him for this period when the Respondent seemingly accepts that he was always lawfully in the State and eligible for work is plainly a breach of this core term.

85.           Further or in the alternative, where the employer has acted unreasonably a constructive dismissal may still arise. The test is set out in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 at 226 and asks whether the employer:

conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving

86.           Per A General Operative v A Religious Society ADJ-00002814:

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. … In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

87.           Very clearly, based on the extremely unreasonable behaviour of the Respondent – indefinite unpaid suspensions despite the repeated evidence provided by Mr Rodriguez culminating in an apparent refusal to pay the amount unlawfully withheld, or even acknowledge their wrongdoing, left him with absolutely no choice but to leave his employment.

Redress

88.           Section 7(1)(c)(i) of the Unfair Dismissals Act 1977 provides that:

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

89.           In accordance with Regulation 4 of SI No 287/1977 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977:

In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.

90.           Mr Rodriguez is entitled to up to 104 weeks renumeration. He began work on 27 December 2021 at Nestlé, Florida, United States. Accordingly, he should be renumerated for the period from 12 September 2021 to 27 December 2021 of 15 weeks. This amounts to €6,480 gross.

CONCLUSION AND DISPOSITION

91.           For all of the reasons above, the Complainant invites the Adjudication Officer to conclude, that the Complainant’s statutory and contractual rights have been breached, and/or that he was constructive dismissed and/or that he was subjected to discrimination on the ground of race.

92.           In accordance with section 6 of the Payment of Wages Act 1991, section 27(3) of the Organisation of Working Time Act 1997, section 82 of the Employment Equality Act 1998, section 7 of the Unfair Dismissals Act 1977 and section 41 of the Workplace Relations Act 2015, the Complainant invites the Adjudication Officer to make awards of redress for the effects of the breaches of his statutory and contractual rights.

The within claims by Mr Timothy Rodriguez against his former employer, Wincanton Ireland are brought under:

·       Section 6 of the Payment of Wages Act, 1991

·       Section 8 of the Unfair Dismissals Act, 1977

·       Section 77 of the Employment Equality Act, 1998

In his claim form to the WRC, the Complainants Representative alleges that the Respondent “has not paid him or has paid him less than the amount due to him” However, the complaint form fails to mention that the Complainant had a highly unusual, unprecedented situation about his right to work. In that his Stamp 4 renewal had been refused on two occasions by the Department of Justice.

At the time, there was an extension to existing work permissions, however, there was absolutely no indication from the Department or other Government bodies that this would apply in the case where an employee’s renewal application had been refused.

When the Complainant ignored the meetings, correspondence, and requests for information, the Respondent contacted the Government department to clarify the position. The Department of Justice informed the Respondent that the Complainants case was highly unusual and unprecedented, and recommended that the Complainant contact them for clarity. The Complainant (or in this case, his Solicitor) did not contact the department until August.

There was no clarity about the Complainants permission to work. The Complainant refused to provide clarity about this, even after the Respondent stressed to the Complainant the risks associated with rostering an employee who does not have the right to work in the Republic of Ireland. This matter could have been resolved very easily in March/April, had the Complainant contacted the Department (as per the request of the company) and sought official clarification about his work status.

The Complainant purposely delayed the process which led to his absence from work between the months of March to August, by failing to engage in the process, and refusing to provide evidence of communication with the Department. Eventually, after six months, when the Complainants Solicitor provided evidence of correspondence with the Department, the Complainant was immediately invited to return to work. The Complainant refused to return to work and did not engage with the company.

As far as the Respondent can tell, this case is unprecedented, which meant it was a very difficult situation to handle. This submission sets out the position of the Respondent and the reasoning behind the approach which was taken in this instance.

Preliminary Arguments

Time limit: annual leave and public holidays

In his submission, the Complainant sets out that he was not paid for his public holidays or annual leave per section 19 and 20 of the Organisation of Working Time Act. However, there has not been a claim submitted for this. The Complainant has not worked for the Respondent since March 2021 (15 Months ago), and he was dismissed in November 2021 (7 months ago). With this in mind, the Respondent submits that the Complainant is out of time to bring this claim.

Statute barred: constructive dismissal

The Complainant did not resign from his employment with the Respondent. The Respondent has not received a letter of resignation or any other such indication of a resignation. Furthermore, the Complainant has not submitted evidence of his resignation in his submission. The Complainant was dismissed following a thorough investigation and disciplinary process- a fact which the Complainant seems to have ignored in his submission.

Prima Facie Case: employment equality

The Complainant has failed to discharge the burden of proof in this instance. The Complainant has stated that he has been treated less favourably than his Irish colleagues. This is an unfair analogy, as Irish employees do not need a visa/stamp/permit to work.

All employees are asked by the Respondent to prove their right to work in the Republic of Ireland (regardless of race/nationality). All other employees provided this documentation in a timely manner when requested.

Other people of the Complainants race have the right to work in Ireland (and within the Respondent company), and those people are permitted to work provided they have the correct documentation. This is the case for all the Respondents employees.

Furthermore, the Complainant has not provided evidence to support his claim that he was provided less favourable conditions of employment.

The Complainant has also not provided evidence to support his claim that he was harassed.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 85A of the Acts provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the Respondent is fixed with the burden of proof. The Court held: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

Background to the Complainant

The Complainant was employed with the Respondent from 14 October 2019. The Complainants Contract of Employment stated the following:

“The full Contract of Employment is a collective term that consists of this document, your offer letter of employment and any subsequent additional letters confirming changes to your terms and conditions of employment. You must read all these documents together, as collectively they form your Contract of Employment with the Company. In addition, you are required to abide by all Company policy documents (subject to change), procedure and ancillary documents.”

The Complainants offer letter stated that his employment was subject to him providing “proof of your eligibility to work in the ROI”.

The Complainant signed the contract of employment, which also stated:

“By signing this document you also agree to abide by all Company policies and procedures that detail more general terms, conditions, rules and procedures, plus any ancillary documents or any specifically agreed attached and signed addenda”.

In July 2020, the Complainant was given an increase in his hourly rate (from €10.50 per hour to €10.80 per hour) as part of a pay award for all team members.

The Complainant entered the step-team leader programme (a training programme supporting progression to Team Leader role) in March 2021. While operating as a step-up team leader in March and April 21 his rate of pay increased from €10.80 an hour to €12.81.

The Complainant held a Stamp 4 permission to work, which expired on 16 May 2020. The Respondent did not receive any documentation updating the Complainants permission to work after this date.

The Complainant was a valued member of the team, whom the Company wanted to return to work. This is demonstrated in the level of communication which was had with the Complainant throughout his time off and by his recent acceptance to the managerial training programme.

The Complainant did not return to work with the Respondent, even after the Company managed to obtain clarification about his permission to work. The Complainant was dismissed from his employment with the Company following a fair and impartial AWOL (absent without leave) procedure on 4 November 2021.

The Complainant was paid his final pay of 16 November 2021. This included pay for public holidays and annual leave.

Background to the Respondent

Wincanton Ireland Limited are a logistics company which provides supply chain consultancy and solutions to a broad and diverse range of clients in Ireland.

The Respondent has 218 number of employees, spread across 2 sites.

The Respondent has a diverse workforce, with employees from 25 different nationalities.

Seven percent of the Respondents employees require a visa/permit/stamp to work in Ireland.

Background to the Claim

In February 2021, the Respondents HR Department conducted a companywide audit on work permissions as per company policy.

The Respondent informally requested an updated Stamp 4 card from the Complainant at this time. It was noted by the Respondent that, at this point, that all other employees had provided updated permission to work documentation.

In March 2021, the Respondent contacted the Complainant again as he had failed to provide any information.

On 25 March, the Complainant advised he had applied for the Stamp 4 on two occasions, and both applications had been refused.

On 26 March 2021, Elaine Dunne (People Manager) contacted the Complainant and informed him that due to concerns about his permission to work, the Company would not be in a position to provide work until clarification on his work permission was provided. The letter advised that in light of the two visa renewal refusals the Respondent was not comfortable that the reference on the website alone was sufficient to confirm his eligibility to work.

On 9 April, the Complainant provided correspondence from the Department of Justice which stated:

“Please note that since your application has been refused, you may now be considered to be illegally residing in the State and may become the subject of a Deportation Order if you do not renew your permission.

Please address the issues noted above as a matter of urgency. While no action will be taken immediately, you need to be aware that failure to rectify the issue and renew your registration in good time may lead to you being considered to be illegally residing in the State and you may be at risk of becoming the subject of a Deportation Order. It is therefore in your own interests to resolve this issue as soon as possible.”

Having sought advice on the matter, the Respondent placed the Complainant on unpaid leave pending confirmation of his eligibility to work.  The Respondent requested that the Complainant respond with clarification from the Department about his case by 9 April 2021.

On 14 April, the Respondent invited the Complainant to an investigation meeting with Ms Dunne as he had not provided proof of eligibility to work. The invite advised the Complainant that the meeting would take place on 20 April 2021 and advised him of his rights regarding representation.

On 20 April, the Complainant did not attend the investigation meeting.

On 26 April, the Respondent reinvited the Complainant for an investigation meeting which was scheduled to take place on 30 April.

On 30 April, the Complainant did not attend the investigation meeting.

The Respondent tried to contact the Complainant by phone, email, and registered post. There was no response to any communication and the letter was returned to the sender by An Post.

On 5 May, the Complainant contacted Ms Kristal Shum (People Assistant). In this correspondence he provided an updated address. He also stated that there had been no change or developments in his case thus far.

On 10 May, the Complainant was invited to attend a rescheduled investigation meeting which was due to take place on 13 May. The Complainant was informed that this meeting would be held by Ms Dunne. The letter advised of the issue, and his rights regarding the right to representation.

On 14 May, the Complainant provided a generic link to the “Gov.ie” website. This website provided generic advice about the Governments approach to extending working permissions due to the Covid-19 pandemic. The link did not provide advice about renewal applications which have been refused. The Respondent questioned whether an extension to a permission would still apply where the most recent application was refused. The Complainant appeared to understand the concerns, he stated “It’s a specific situation, having all the information I understand where Wincanton is coming from, not taking personally, calling immigration lawyer and maybe agreed all info”

On 14 May a meeting was held with the Complainant. The purpose of the meeting was to gather the facts about his current work status and investigate if he has sought clarity on his eligibility. The Complainant stated that he was not required to do anything and that the reference on the Department of Justice website was sufficient to allow him to continue working.

On 17 May, the Complainant provided further correspondence (with a new application number) from the Department of Justice which also stated:

“Please note that since your application has been refused, you may now be considered to be illegally residing in the State and may become the subject of a Deportation Order if you do not renew your permission.

Please address the issues noted above as a matter of urgency. While no action will be taken immediately, you need to be aware that failure to rectify the issue and renew your registration in good time may lead to you being considered to be illegally residing in the State and you may be at risk of becoming the subject of a Deportation Order. It is therefore in your own interests to resolve this issue as soon as possible.”

Nothing in this letter indicated that the Complainant has the right to work in the Republic of Ireland.

In response to this correspondence, Ms Dunne asked for further clarification on the web address which the Complainant was referencing with regards to his right to work. The Complainant responded with links. None of the links provided clarity on whether a stamp would be extended when its renewal had been refused twice.

The Complainant forwarded generic links regarding extensions to work permissions.

On 18 May, Ms Dunne contacted the Complainant. In this communication Ms Dunne explained that the evidence regarding the right to work after the Department refuses a stamp renewal is unclear. Ms Dunne asked the Complainant to provide documentation from the department which stated that he specifically had the right to work.

On 19 May, Ms Dunne contacted the Department of Justice directly to seek clarification about the Complainants eligibility to work. For obvious data protection reasons, Ms Dunne could not provide the employees personal details.

On 20 May, the Complainant responded to Ms Dunne via email, where he disagreed with every statement put forward by the Company. The Complainant did not confirm that he would contact the Department for clarity.

On 21 May, Ms Dunne responded to the Complainant and informed him that she had contacted the department herself for clarification.

On 26 May the Complainant contacted Ms Dunne asking for an update.

On 27 May, Ms Dunne responded to the Complainant and informed him that she had not yet received a response.

On 27 May, the Complainant responded to Ms Dunne, claiming that he had received a response from both the Department of Justice and and the Immigration services. The Complainant did not provide evidence of either of these responses, but concluded his email with “ Do you think I believe that justice department have not repsonded to you”

On 4 June 2020, Ms Dunne received a response from the Department of Justice seeking clarification on the matter.

·       Ms Dunne responded with generalised information about the case.

·       The contact also stated that she would need to know the reason for the refusal in order to appropriately advise.

·       The contact stated that if the employee did not have a valid IRP (Irish Residents Permit) card then he should not be working (the Complainants GNIB card had expired on 17 May 2020).

·       The contact from the Department responded and recommended that the employee engaged directely with her on this matter, as it would need to be looked into.

·       Ms Dunne responded and stated that the employee would not contact the department, and so she needed an answer.

On 8 June, the Respondent received a generic solicitors letter. This letter did not provide detail on the employees right to work.

On 9 June, Ms Dunne received an answer from the department which stated that they would be covered by the extension, granted that they were sorting out their permission and renewing online.

On 10 June, Ms Dunne sought clarification on the wording of this correspondence from Ibec. At this point Ibec sought further advice and clarification from the Department.

On 14 June, the Respondent issued a letter, acknowledging receipt of the letter from the Complainants solicitors.

On 25 June, Ibec received a response from a contact in the Department of Justice about this matter. Again, for data protection reasons the query was generic and did not reference the company or the employee. The Department advised, by phone, that, due to the complexity of the case and without specific details they could not give a definitive answer on this individuals eligibility to work. The Department requested that the employee contact them directly for clarity. The Ibec Executive asked that the Department follow up with this response in writing.

Later that day, the Department provided this response in writing. It was clear that there was no straightforward answer from the contact in the Department. The written response stated the following:

“This applicant’s case appears to be complex and would require further details in order to give you a more accurate answer.

However, my reading on the matter is that the applicant is covered under the Minister’s extension on the basis that they are actively seeking renewal of the current stamp 4 permission. Even though the applicant has been refused online registration their permission hasn’t been revoked. This is based on the assumption that the applicant is seeking renewal of their permission (by submission an application form with the required documents to residence unit 4) rather than another online renewal, having already been refused).

If the applicant hasn’t sought a renewal of their current permission or in fact if their circumstances have changed and they are not eligible for further permission on their current basis then the Minister’s extension wouldn’t apply to them, however, this could be clarified by the section in which they seek their next permission.”

On 28 June, Ms Dunne wrote to the Complainant, as per the advice of the Department of Justice, and requested that he contact the Department regarding his eligibility to work. Ms Dunne provided the details for the contact person in the Department who had agreed to look into this case. Ms Dunne attached a copy of the response from the Department. Ms Dunne also asked the Complainant to advise whether he had appealed the refusal. The Complainant was asked to revert by 9 July 2021.

3.1.             Over the next few days, Ms Dunne did not receive confirmation from the Complainant that he had contacted the Department, instead she received emails from the Complainant which contained some of the following comments:

“I’ll continue to “Liaise” at my own discretion, with the people I choose”

“ Can you please explain to me also why is it necessary to mention you have been ‘liaising on my behalf’ in he letter you wrote. As if I’m supposed to lick Wincantons boots for ‘liaising’ on my behalf, because the HR Departmane DIDN’T accept any of the information I have given in over 40 emails or the information a legal professional gave to you in the Demand Letter. Wincanton didn’t ‘Liaise’ on my behalf at all. As if I’m not aware Wincanton was hoping to dump this situation in The Departments lap, hoping to find some form of duplicity or culpability in my actions”.

On 15 July, the Complainant was invited to attend an investigation meeting which was scheduled to take place on 20 July.The Complainant was informed that this meeting would be held by Mr Tony Greenhalgh (CI and Planning Manager). The letter advised of the issue, and his rights regarding the right to representation etc.

On 20 July, the Complainant attended an investigation, where he gave the following responses:

“If you asked me to go to Burger King and I go to McDonalds you have no say in what I do”

“I said Wincanton will know when I say its appropriate, Wincanton have no authority to tell me when I need to provide unless Wincanton has affiliation with immigration. If you don’t like it, not my problem”.

“The timing is up to me, my choosing”.

“I don’t need to understand Wincanton point of view. No need for me to be accountable”.

“Did I ever say I would supply Wincanton with anything”

“My choice, my visa, my jurisdiction, I get to choose”.

“When I’m ready you will get that information. I have until 20 September to prove to the Irish Government and you.”

The Respondent tried to explain:

“As an employer we have a legal obligation to ensure every employee has the full right to work in this country, we are well within out right to ask you”.

“For you to get back to work, we need people, very busy. We need this.”

“As it stands now- information not available or you are not giving it over at your choice. We don’t have a choice”.

On 20 July the Respondent received the following from the Complainant:

“I AM ON LEAVE WITHOUT PAY, BECAUSE WINCANTON WAS AFRAID OF A LEGAL PROBLEM. NOW WINCANTON ‘NEEDS’ TO KNOW IF I CAN STAY? SO WHY DOES WINCANTON DEMAND AND CARE SOOOOOOOOOOOOO MUCH, ALL-OF-A-SUDDEN, ON WHEN WINCANTON NEEDS THIS INFORMATION???????????? WHY ARE YOU SOO CONCERNED ABOUT HOW LNG I CAN STAY IN IRELAND? IS IT POSSIBLE THAT WINCANTON HAS NOTHING ELSE TO GO ON, I THINK SO ANYWAY. BUT AGAIN I’M SURE WINCANTON DOESN’T CARE ABOUT MY OPINION.”

“I remember just fine about who needs to be notified…………. My visa falls under my personal life. My visa is for myself, not for Wincanton. So with all due respect, Wincanton will be notified, when I decide.” 

“BEING NOTIFIED ABSOLUTELY IS WINCANTON’S CONCERN, WHICH IS WHY WHEN APPROPRIATE WINCANTON WILL BE NOTIFIED, by email and certainly not in another meeting to discipline me.”

On 27 July, the Complainant was invited to attend a disciplianry hearing which was scheduled to take place on 5 August. The Complainant was informed that this meeting would be held by Mr Joe Croke (Depot Manager). The letter advised of the issue, and his rights regarding the right to representation etc.

On 5 August, the Complainant attended the disciplinary hearing. During this hearing it was explained that the Company wanted to get the Complainant back to work as soon as possible. It was also noted that the Respondent had provided a direct line to a contact in INIS, which the Complainant could use to speed up the process. It was explained that several weeks had passed but the Complainant had not provided any evidence of any corresponce with the department.

On 11 August a verbal warning was issued to the Complainant.

On 12 August, the Complainant stormed into Mr Croke’s office and asked whether he had received an email from the solicitor. Mr Croke noted that he had not, and asked for the solicitors name so that he could look into this. The Complainant then threw several sheets of paper on the floor in front of his manager and left the office.

On 13 August, Ms Dunne emailed the Complainant to arrange for his return to work for the week commencing Monday 16 August. The email advised the Complainant of his shifts for the following week. The Complainant did not show for his shifts, nor did he notify his line manager of his absence.

On 17 August, the Respondent received notice from the WRC about the claim under the Payment of Wages Act.

On 18 August, the Respondent emailed the Complainant regarding his return to work again.

On 23 August the Complainant sought a meeting with Mr Croke, regarding his return to work. The Complainant noted that he would not return to work until he has received payment for the time lost. Mr Croke informed the Complainant that the Company would not pay, as the Complainant did not work the hours. The Complainant responded and stated that he would not be returning to work until the Respondent paid him for the time he was off work.

On 26 August, Ms Dunne wrote to the Complainant again, and explained that further absences would be treated as AWOL in line with the company policy. The email advised the Complainant of his shifts for the following week. Again, the Complainant did not show for his shifts, nor did he notify his line manager of his absence.

On 8 September, Ms Dunne invited the Complainant back to work again. In this letter, Ms Dunne advised the Complainant of his rostered hours, and asked that the Complainant furnish the company with evidence of his reapplication/appeal for the Stamp 4, prior to the end of the work permission extension on 20 September.

Ms Dunne explained that further absences would be treated as AWOL in line with the company policy. Once again, the Complainant did not show for his shifts, nor did he notify his line manager of his absence.

On 16 September, Ms Dunne wrote to the Complainant again. This was another similar letter. In this letter, Ms Dunne also advised the Complainant of his rights under the grievance procedure. The letter is accompanied by a register post receipt.

Having heard nothing from the Complainant in a month, on 24 September the Respondent notified the Complainant that he was now considered AWOL. The Complainant was again asked to make contact with the Company. The letter is accompanied by a registered post receipt.

On 4 October, the Complainant was sent an invite to attend an investigation meeting as a result of his unauthorised absence and failure to engage with the company. The Complainant did not attend this meeting, which was scheduled for 7 October 2021. The letter is accompanied by a registered post receipt.

On 8 October, the Complainant was sent another invite to attend a rescheduled investigation meeting. This meeting was scheduled for 14 October. The invite outlined that the meeting would be held in his absence, should the Complainant fail to attend. The letter is accompanied by a registered post receipt.

On the 14 October Ms Lorraine Dowling (Health, Safety & Facilities Manager) waited 15 minutes for the Complainant to arrive. The Complainant did not attend and the hearing was held in his absence.

On 20 October, the Complainant was issued a letter. The letter contained the outcome of the investigation and invited the Complainant to a disciplinary hearing. The disciplinary hearing was scheduled for 27 October. The letter is accompanied by a registered post receipt.

On 27 October, the Complainant did not attend the disciplinary hearing.

On 28 October, the Complainant was issued a letter advising him that the disciplinary hearing had been rescheduled for 4 November, as a result of his failure to attend the last meeting. The letter noted “Please note your job is in jeopardy and failure to attend the meeting may lead to a decision being made in your absence” The letter is accompanied by a a registered post receipt

On 4 November, the Complainant did not attend for the disciplinary hearing and the meeting was held in his absence.

On 8 November, the Respondent wrote to the Complainant, advising him of the outcome of the process- which was that he had been dismissed from his position in the company. The letter advised the Complainant of his right to appeal this decision. The letter is accompanied by a registered post reciept.

The Complainant did not appeal the decision to dismiss.

The Complainants final payslip was issued on 16 November 2021.

The Complainant submitted his constructive dismissal and employment equality claims on 11 March 2022.

Respondents Position

Section 6 of the Payment of Wages Act, 1991

The Complainant has submitted that his “employer has made an unlawful deduction from my wages”.

The Complainants representative, in his submission, has stated that the Complainant:

“did not receive his wages contrary to the express terms of his contract of employment”.

However, one of the express terms of the contract of employment is that the Complainant is required to have the right to work.

The Complainants representative also states,

“the Complainant was entitled under his contract to be paid for every hour worked at an hourly rate of €10.50 - increased to €10.80 – for a 40-hour week”.

The Respondent wishes to draw attention to the term used here, “every hour worked”. The Complainant did not work any hours during the time in question, therefore there is no wage “properly payable”.

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the remuneration stated in the Complainant’s contract.

At no point has the Complainant received a salary below his contractual salary. In making this statement the Respondent is considering not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant is arguing that there was a deficiency in payment of his wages on the period in question. The Payment of Wages Act, 1991, under section 5(6) states:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The Complainant was contractually required to work a 40-hour week. Had the Complainant fulfilled the contract, he would have been paid his full salary. The Complainant did not work these hours as there was a concern about his right to work in the Republic of Ireland.

The Complainant consistently refused to provide clarity about his right to work, therefore he could not be returned to work.

The Respondents “Eligibility to Work” policy, reinforces this position, as it clearly provides a list of acceptable methods to prove your right to work. A generic link citing an extension to existing permissions was provided by the Complainant. This was not considered appropriate for this “complex” case. The policy states the following document is acceptable:

“An Immigration Document issued by the Department of Justice and Equality or the GNIB to the holder which indicates that the person named in it can stay in the ROI for a limited period and is allowed to do the work in question, provided that it does not require the issue of a work permit”.

Providing official clarification on the Complainants right to work proved to be quite an easy task, which was demonstrated by the Complainants solicitor on 9 August.

The important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment.

The Complainant delayed the process for six months. The Respondent was more than willing to bring the Complainant back to work, as there was a shortage of staff during the pandemic.

The Complainant considered it to be his “choice” whether he provided the company with proof of his eligibility to work.

The Respondent accepts that it is the Complainants choice whether he provides this information or not. However, the Respondent should have a choice in whether to roster an employee who chooses not to prove that he is eligible to work in the Republic of Ireland. Especially given the fines and criminal convictions which are associated with allowing an employee to work when he/she does not have permission to do so.

The Complainant made the following comments, none of which indicated that he had any intention of proving his right to work:

“The timing is up to me, my choosing”.

“I don’t need to understand Wincanton point of view. No need for me to be accountable”.

“Did I ever say I would supply Wincanton with anything”

“My choice, my visa, my jurisdiction, I get to choose”.

“When I’m ready you will get that information. I have until 20 September to prove to the Irish Government and you.”

Any deduction made to the Complainant’s salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions.

The Complainant failed to acknowledge that he had not worked all his contractual hours. Further to this, the Complainant did not acknowledge or comprehend that this situation had come about as a result of his failure to supply the appropriate documentation.

The Respondent must point out that the Adjudicator in the case of A Complainant V A Respondent (ADJ-00008309), summed a similar case up very nicely stating:

“I am satisfied that it would be unreasonable and unfair to have a retrospective cost applied to the Respondent when it was the Complainant's responsibility to sort out his social welfare situation”.

A similar position is neatly summarised by the Labour Court in the case of Radisson Blu Hotel and Mr Grzegorz Walasek:

“It is contended by the Complainant that he was entitled to be paid his full monthly wages, even though he worked less than a full month. He cites the fact that his contract specifies an annual amount to be paid monthly. However, nothing in the contract specifies that he is entitled to be paid a full monthly wage even when he works less than a full month. The Complainant is entitled to be paid the agreed amount for the time that he worked, nothing more and nothing less. The suggestion that he should be entitled to a full monthly payment irrespective of the amount of time he worked is not supported by his contract or common sense and is not an entitlement under the Act……. The Court finds that the claim is not well founded.”

The Employment Permit Legislation provides that a request for a review must be submitted within 28 calendar days from the date of the notification of the refusal decision (date specified on the refusal letter). In this case, six months had passed, and the Complainant had not provided any clarity on the position.

The Complainant also stated, “I have until 20 September to prove to the Irish Government and you.” Which, upon reflection, indicates that the Complainant had no intention of dealing with this until the deadline was upon him, and so, had no intention to return to work until after the deadline.

The Employment Permits Acts 2003 – 2014 in which Section 2(2) of the 2003 Act provides; “A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under Section 8 of the Employment Permits Act, 2006 that is in force.”

Similarly, Section 5(1) of the Immigration Act, 2004 provides:

“No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act after such passing, by or on behalf of the Minister.”

An employer who employs an employee without a valid permission to work is guilty of an offence and is liable to a fine of up to €250,000 and/or up to 10 years in prison.

In cases where there is no work permit in place the employee is also liable to a fine of up to €3,000 and/or up to 12 months in prison.

The Respondent respectfully draws attention to Adjudication Officer Penelope McGrath’s interpretation of Hussein  -v- The Labour Court and in Muhammad Younis:

“I have had to give some consideration to the law in this area. The 2012 case of Hussein  -v- The Labour Court and in Muhammad Younis 2012 IEHC 364 is relevant here and that case found that the complainant was unable to invoke various protections afforded by Irish employment legislation by reason of the illegality of the contract of employment.

The illegality arose from the employee's failure to hold the required employment permit. Despite potential allegations of gross exploitation no redress was available against the employer in such cases. Hogan J. who heard the Judicial Review in the High Court confirmed the principle that parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the legislature clearly has given a right to sue. No such right or opportunity was available in the Employment Permit Acts.

He also remarked at that time that “due to the provisions of the Employment Permit Acts one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantial illegality”. 

I understand that the reasoning off the High Court still represents the law on the consequences of working without a valid work visa. The Supreme Court in Hussein did not reverse or unsettle these findings instead opting to deal with the Hussein case on different grounds.”

The Respondent submits that the Company could not, in good faith, continue to roster and pay an employee, having been informed that that employee’s application to renew his Stamp 4 permission to work had been refused.

Contacting the department for clarity on his permission to work was not a complex or time-consuming task, and had the Complainant complied with this in the first instance, he would have been returned to work immediately. This is evident, as the Respondent immediately invited the Complainant to return to work when they received evidence that the solicitor had spoken with the Department, and yet he still refused to return to work.

The Respondent acknowledges that it is the Complainants “choice” as to whether he provides the Company with proof of his right to work. However, the Respondent submits that wages are not “properly payable” where an employee chooses not to clarify whether or not he has the right to work in the Republic of Ireland.

The Complainants submission also stated:

“The placing by the Respondent of him on unpaid indefinite suspension despite the repeated and prompt furnishing that demonstrated definitively that he indeed was lawfully resident in the State and was eligible to work constitutes a deduction within the meaning of the Payment of Wages Act, 1991.”

“This refusal does not affect his right to be in the state at all.”

However, the Respondent submits that the following paragraph, which was taken from the Complainants refusal letter, should be considered here, as it states:

“We refer to your recent application for Irish Residency permit Card renewal”

“Following careful consideration and due process, it has been decided to refuse your application….

It is open to you to re-apply online at a later stage when the reason for the refusal, as outlined above, has been rectified.

Please note that since your application has been refused, you may be considered to be illegally residing in the state and may become the subject of a Deportation Order if you do not renew your permission. Please address the issues noted above as a matter of urgency”.

The Respondent submits that receiving this document was a legitimate cause for concern. The Respondent had no choice but to question this piece of communication, as to ignore it could lead to massive implications for the company, the Complainant and the management team.

Furthermore, the Complainants submission places great emphasis on the notion that he was placed on “suspension” in a disciplinary sense. The Complainant was not suspended, he was placed on unpaid leave pending clarification on his right to work status.

Section 8 of the Unfair Dismissals Acts 1977

In his submission, the Complainants representative states the following:

“The Complainant will further allege that given the conduct of the Respondent in placing him on indefinite unpaid suspension, he was constructively dismissed contrary to section 7 of the Unfair Dismissals Act 1977.”

“I had to leave my job due to the conduct of my employer or others at work (constructive dismissal). “

However, the Complainant did not resign from his role. Furthermore, the complaint form does not name the date which the employment ended.

As per Section 1 of the Unfair Dismissals Acts:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

In his submission, the Complainants representative states the following:

“On 8 November 2021, Mr Rodriguez is dismissed as of 4 November 2021.”

Clearly, the Complainant and his solicitor were aware that he had been dismissed from his employment through a fair process prior to the Complainant lodging this claim on 11 March 2022.

In the case of A Painter v A Maintenance Service Provider (ADJ-00017582), Adjudication Officer Emer O’Shea stated the following:

“The claimant commenced employment with the respondent on the 13.02.2107. He did not indicate on his complaint form the date of termination of employment. At the hearing, the respondent asserted that the fact of dismissal was in dispute and submitted that the claimant did not submit a clear resignation; that he was not in touch with the company since the 31st August 2018; the claimant left the date of termination of employment box blank on his complaint form and that the claimant had never been issued with a P45 and had never sought one.

In such circumstances, the claim under the Unfair Dismissals Acts is misconceived and I have no jurisdiction to investigate the complaint lodged with the WRC under Unfair Dismissals Acts, 1977-2015.”

Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia:

“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 light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate 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 the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

Contractual test

The Respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred. The Respondent would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, express or otherwise.

The Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”.

In fact, the Respondents repeated efforts to seek clarification from the department on the Complainants right to work, and the repeated effort made to bring the Complainant back to work show that the Respondent always considered the Complainant an employee. The Respondent was disappointed that the Complainant did not return to work as he was a valued member of the team.

The Respondent fulfilled its contractual obligations, implied and otherwise. The Complainant did not provide proof of his right to work and so the Respondent could not roster him accordingly.

In light of this, it is the Respondent’s position that the Complainants contract of employment was terminated following an AWOL disciplinary procedure, and so this claim fails to be a constructive dismissal.

Reasonableness test

In respect to reasonableness, it is the Respondent’s position that there exist two interwoven factors to be considered:

a)       did the employer act unreasonably so as to render the relationship intolerable, and

b)      did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

This is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Reasonableness: the conduct of the employee

In this instance, the Complainant was asked to complete a simple task. He was asked to contact the department and ask whether he continued to have the right to work when his application for renewal was refused.

The Complainant was unreasonable, as he refused to do this, and instead continued to furnish the Respondent with the same generic documentation regarding extensions to existing permissions. Nowhere in this documentation did it state that an employee could continue to work where his/her permission had been refused.

Reasonableness: the conduct of the employer

It is the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. This was an unprecedented situation and the Respondent sought to rectify the issue as quickly as possible, however the Complainant did not aid the process in any way.

Reasonableness: Exhausting Procedures

The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

The obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract. In Travers v MBNA Ireland Limited, UD720/2006the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found:

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Tribunal thus found in that case that the Complainant was not constructively dismissed.

At this juncture, the Respondent wishes to reference Fitzsimons v Mount Carmel Hospital,UD855/2007. In that case, in the Complainant’s letter of resignation a complaint was raised against the Complainant’s manager.

The Respondent conducted a “full investigation” and extended an invitation to return to work. The Respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to “bring in a mediator to facilitate a harmonious return to the workplace if that was possible”. The Complainant rejected the offer of return on the grounds that her relationship with her manager had deteriorated so much.

The Tribunal stated:

“It is regrettable that this final step [of acceptance of the return to work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”

By virtue of this, the Complainant’s (non-existent) resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal.

Ordinarily, the Respondent would argue here that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, it is insufficient for an employee to claim himself to have been constructively dismissed without utilising and exhausting grievance procedures. However, given that the Complainant has not resigned, it is the Respondent’s position that there is no claim to be heard under this legislation in the first instance.

Without prejudice to the Respondents arguments, the Complainant has not submitted any evidence of his loss, or evidence of his attempts to find a new role.

The Complainant was dismissed through a fair and transparent investigation and disciplinary process. The Respondent wishes to draw attention again to A Retail Employee and a Service Station (ADJ-00027527)

“Overall, I am satisfied that the Respondent had intended continuing with the Complainant’s employment just as soon as the Complainant provided them with the valid operative Visa. It was the failure to provide this paperwork that resulted in the termination. No right of appeal lies, says the Respondent, where the Contract is terminated by operation of the law and not by reason of some decision made by the Respondent. The Respondent has invited me to accept that once the work Visa expires there is no entitlement to the protections set out in the employment rights Statutes (including Minimum Notice, and the obligation to provide specific terms and conditions of employment) …..

For the avoidance of doubt, even if I wasn’t already bound by case precedent in this area I would in any event accept the Respondent’s argument that Section 6 (4) (d) of the Unfair Dismissals Acts 1977 -2015 is relevant to these circumstances. This section specifies that the dismissal of an employee shall be deemed for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…’’(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or his/her employer) of a duty or restriction imposed by or under statute, or instrument made under statute’’.

As per Section 1 of the Unfair Dismissals 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,

Clearly, in this instance, the contract was terminated by the employer.

The Respondent wishes to draw attention to some of the Correspondence between the Complainant and Ms Dunne:

On 26 March, Ms Dunne included the following in her letter to the Complainant:

“Unfortunately, as your eligibility to work in the Republic of Ireland is no longer valid we cannot continue to offer employment to you. In light of the possibility that your application may be reversed we will keep your position open for you to return once you can provide us with the renewed stamp 4 status. We ask that you keep us updated on the status of your application and inform us f any developments no later than 9th April 2021”.

On 14 April,Ms Dunne included the following in her letter to the Complainant:

“In my previous letter I noted that as the decision regarding your application may be reversed we will keep your position open for you to return once you can provide us with the renewed stamp 4 status. I also requested you provide an update on the status of your application to us no later than Friday 9th  of April 2021. We have not received an update from you to date.”

On 18 May, the Complainant responded:

“If I want to stay in Ireland past the expiry date of my immigration permission which is NOW the 20th of September. I must re apply and register before they expire”.

On 27 Maythe Complainant responded:

“Immigration got back to me in under an hr with their response”.

On 20 July, the Complainant stated:

“My visa falls under my personal life. My visa is for myself, not for Wincanton. So with all due respect, Wincanton will be notified, when I decide.” 

The Government released a notice in December 2020, then again in March 2021, advising that applicants should not wait until the expiry of the extensions to apply for a renewal. It stated:

“Please note: This notice provides the necessary time for those who can renew their permission, particularly Dublin based customers who can use the online system, to do so and not wait until September”.

Every other employee renewed their stamp cards without issue during the extension periods.

The Complainants refusal letters stated the applications were for ‘renewal’, not a new application as claimed by the Complainants solicitor.

The Complainants solicitor notes that the Complainant left the Republic of Ireland in September 2021 as he was no longer entitled to remain in the country.

The Respondent submits that, upon reflection, this aligns with the Respondents concerns regarding the Complainant’s right to work.

Public Holiday and Annual leave Pay

The Complainants submission stated that he was not paid for four public holidays. The submission argues that he is due one fifth of his average weekly pay for each public holiday. The Respondent submits that this would ordinarily be the case, however this individual was on unauthorised unpaid leave and therefore he did not have any right to accrue public holiday pay.

Following this, the Complainants submission states:

“Per section 19 (1)(c) of the Organisation of Working Time Act 1997, as amended, the Complainant is entitled to paid annual leave equal to 8 per cent of the hours he works in a leave year, up to a maximum of four weeks.”

The Respondent wishes to draw attention to the term “of the hours he works in a leave year”. The Complainant did not work, and therefore he did not accrue annual leave. Mr Rodriguez had taken 10 days of annual leave prior to March; therefore, he had taken more than he accrued.

However, on 16 November 2021, the Respondent paid the Complainant for 85 hours (10 working days) worth of annual leave at a rate of €12.96 per hour. This added up to a gross figure of €1101.60.

Section 77 of the Employment Equality Acts 1998

The Complainant has submitted the following claims:

·       “I have been discriminated against by reason of race”

·       “I say the respondent treated me unlawfully by discriminating against me in Conditions of Employment”

·       “I say the respondent treated me unlawfully in Harassing me”

·       “I say the respondent treated me unlawfully by discriminating against me in Other”

·       Most recent date of discrimination: 12 September 2021

The Respondent refutes these claims in their entirety. The Complainant has not provided a name for a comparator.

The Employment Equality Acts 1998-2015 have set out the definition of discrimination for the purposes of this Act as follows:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

As was noted in Margetts v Graham Anthony Ltd, EDA038;

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’

In Jaclann Holdings Ltd and David Clarke EDA1914, the Labour Court determined the following:

“Having heard evidence on the matter, the Court does not accept the Complainant’s position that the insurance issue was a ruse to prevent his return to work. All of the evidence points to sustained efforts on the part of the Respondent to ensure that the cover was in place. Indeed, correspondence shared with the Court suggests that the Respondent made it a condition of renewal of the fleet insurance that the Complainant be covered and it appears that it was this condition that led to a change of heart by the insurer. The question for the Court is whether a reasonable accommodation could have been made by the Respondent that got around the difficulty in covering the Complainant with insurance so that he could have been facilitated with a return to work once he had been deemed medically fit to do so.” 

Within that same decision, the Court cited An Employer v A Worker EDA 13/2004:

“Reasonable accommodation can involve special treatment that would enable the employee to undertake the duties attached to a job. However, it is difficult to see what special treatment could have been used to allow a driver to undertake driving duties if insurance could not be secured for him doing so. That is, in the view of the Court, an objective justification for the inability of the Respondent to facilitate a return to work by the Complainant. Therefore, the Court is of the view that there is not prima facie evidence of discrimination and that the burden of proof rests with the Complainant.”

“It seems to the Court that the Complainant felt very let down by the Respondent in leaving him out of work for so long, without an income, rather than finding a means of facilitating a return to some form of work, especially given their long history and the contribution, acknowledged verbally by the Respondent, by the Complainant to the Respondent’s business. However, the Court can only deal with claims under the Employment Equality Acts by reference to the law as set out in the Acts and as interpreted by subsequent case law.”

“The Court cannot uphold the Complainant’s appeal on the alleged discriminatory dismissal for the reasons set out above.”

The Respondent submits that although the Complainant was unhappy with the situation, there was no more that the Respondent could do to resolve the issue. It is difficult to see what special treatment could have been used to return this employee to work if his permission status could not be clarified.

Without prejudice to the Respondents arguments, the Respondent requests that if the Adjudicating Officer is to view this as indirect discrimination, then the following arguments should be considered:

In the case of Aer Lingus v Lukasz Kacmarek, Marcin Turczyk and Rafal Wilczkiew EDA1712 the Labour Court reinforced the decision which was made in Andvzejecza, Komar and Others v Microsemi Ireland Limited. Within this decision, the Labour Court stated

” this Court set out the test to be applied when considering whether a particular measure is objectively justified.

It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective of the employer and the means chosen are appropriate and necessary to that end.”

The established jurisprudence shows that in order to avail of a defence of objective justification an employer must show that provision, criterion or practice: -

(a) Is unrelated to a discriminatory ground,

(b) Corresponds to a real and legitimate need on the part of the undertaking,

(c)Is an appropriate means of achieving that need and,

(d)There are no less discriminatory means of achieving that need.

(a) Unrelated to a discriminatory ground:

·       The Respondent submits that all employees (regardless of race) are required to comply with the Eligibility to Work Policy.

·       The Complainant was not harassed nor was he singled out or treated in a hostile manner.

·       This policy was followed as it would be for any employee. It is a universal policy which is relevant for all employees.

(b) Corresponds to a real and legitimate need on the part of the undertaking,

·       The Respondent company has a real and legitimate need to ensure that employees have the right to work in the Republic of Ireland.

(c)     Is an appropriate means of achieving that need,

·       The Complainant was asked to provide the Respondent with further information and refused to do so.

·       The Respondent did everything in their power to find a resolution to the issue.

(d)    There are no less discriminatory means of achieving that need.

·       It is common practice across Ireland for employers to place employees on unpaid leave where there are concerns about their right to work status.

·       No employer can allow an employee to continue working where there is a concern that the individual does not have a right to work. A WRC inspector does not issue a compliance notice for breaches of these acts- instead fines are issued as it is considered an automatic breach. This is not a risk that any good employer is willing to take.

The Respondent submits that the Complainant was consistently treated in the same manner as his colleagues. It is unfortunate that he needed to be placed on unpaid leave, however the Respondent had no choice other than to take this approach, as failure to do so could have led to negative consequences for the Company.

The Complainant was a valued member of the Wincanton team, he had recently been promoted to a supervisor position and, more recently, he was given a wage increase.

The Respondent submits that this situation was not ideal, however, the best was done with the information which could be obtained. To site Barret J. in Boyle - -An Post [2015] IEHC 589“fairness is ever required, perfection is unattainable”.

The Complainant has not identified an instance of harassment.

The Respondent Company relies on the defence of Section 15 (3) of the Revised Act, which states:

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

The Respondent does not condone harassment, and has relevant training, policies and procedures in place to ensure that employees are not subject to harassment in the workplace.

The Complainant had access to these and did not raise any concerns or grievances about harassment.

Conclusion

In deciding the findings of this case, the Respondent respectfully requests that the Adjudicating Officer considers the risk associated with rostering an employee who does not have the right to work in Ireland. Not just the risk to the Company, but the risk to the Managers and their families, where the potential outcome of imprisonment lays.

The Respondent asks that the Adjudicating Officer considers what a reasonable employer would do in these unprecedented circumstances. It is the Respondents position that a reasonable employer would ask an employee to contact the Department and seek clarification about the unprecedented and unusual case.

The Complainant refused to ask the Department to clarify the position, in doing so he delayed the procedure for six months. Eventually, when he decided to ask, he did manage to receive a quick answer. Had he asked when the Company requested him to, he would have been returned to work immediately.

Even when clarification was obtained, the Complainant refused to engage with the Company or return to work. This ultimately led to his dismissal.

Following this, the Complainant did not obtain permission to reside or work in Ireland.

One might assume, through the words and actions of the Complainant, that he did not want to return to work. As if he did, it would be evident in his approach to furnish the Company with the documents or communication requested from day one.

CA – 00049167 – 001 – complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977.

As per complaint form the Complainant contends that he was constructively dismissed from employment on 12thSeptember 2021.

Constructive dismissal is defined in s.1 of the Act 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 has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

The obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract. In Travers v MBNA Ireland Limited, UD720/2006the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found:

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Tribunal thus found in that case that the Complainant was not constructively dismissed.

In Fitzsimons v Mount Carmel Hospital,UD855/2007 the EAT stated:

“It is regrettable that this final step [of acceptance of the return-to-work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”

In the instant case the Complainant failed to utilise the internal procedure and it is for this reason that I find the complaint as presented under s.8 of the Unfair Dismissals Act, 1977 to be not well-founded. This complaint fails, there was no constructive dismissal.

CA – 00049167 – 002 – complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

I note that the cover letter issued with the Statement of Terms and Conditions on 31st October stipulates that this offer of employment is subject to:

·       All information supplied by you to the Company being true and complete

·       Receipt by us of satisfactory written reference for the last three years

·       Proof of your identity

·       Proof of your eligibility to work in the ROI.

The Complainant satisfied these requirements and commenced employment on 14th October 2019.

When it was discovered by the Respondent that the Complainant’s operative visa allowing him to work had expired the Respondent notified the Complainant and asked him to renew his operative visa. The steps taken by the Respondent are comprehensively summarised above.

The Complainant’s action to achieve this task left a lot to be desired. The Respondent submitted that although the Complainant was unhappy with the situation there was no more the Respondent could do to resolve the issue and it was difficult to establish what more the Respondent could have done to return the Complainant to work if his permission could not be established.

The Respondent has also stated that the Complainant was consistently treated in the same manner as his work colleagues who achieved updated working visas as required.

In the case of ADJ – 00027527 (Retail Employee v Service Station) the Adjudication Officer has quoted section 6.4 (d) of the Unfair Dismissals Act 1977 – 2015 where she thought it was relevant to the circumstances of that case. The Circumstances of the instant case are very similar. This section specifies that the dismissal of an employee shall be deemed for the purpose of this Act , not to be an unfair dismissal, if it results wholly or mainly from one or more of the following….”(d) the employee being unable to work or continue to working the position which he held without contravention (by him or his/her employer) of a duty or restriction imposed by or under statute, or instrument made under statute”

After many unsuccessful attempts to establish the Complainant’s status regarding an operative visa the Respondent eventually accepted that the Complainant could return to work. The Complainants level of co-operation in the task of returning him to work left a lot to be desired and the Respondent were left with no alternative but to dismiss him from employment.

I find that there was no discrimination involved and therefore the complaint as presented must fail. The complaint as presented is not well-found.

CA – 00045530 – complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Respondent includes the following in their submission:

Section 6 of the Payment of Wages Act, 1991

The Complainant has submitted that his “employer has made an unlawful deduction from my wages”.

The Complainants representative, in his submission, has stated that the Complainant:

“did not receive his wages contrary to the express terms of his contract of employment”.

However, one of the express terms of the contract of employment is that the Complainant is required to have the right to work.

The Complainants representative also states,

“the Complainant was entitled under his contract to be paid for every hour worked at an hourly rate of €10.50 - increased to €10.80 – for a 40-hour week”.

The Respondent wishes to draw attention to the term used here, “every hour worked”. The Complainant did not work any hours during the time in question, therefore there is no wage “properly payable”.

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the remuneration stated in the Complainant’s contract.

At no point has the Complainant received a salary below his contractual salary. In making this statement the Respondent is considering not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant is arguing that there was a deficiency in payment of his wages on the period in question. The Payment of Wages Act, 1991, under section 5(6) states:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The Complainant was contractually required to work a 40-hour week. Had the Complainant fulfilled the contract, he would have been paid his full salary. The Complainant did not work these hours as there was a concern about his right to work in the Republic of Ireland.

I agree with the above and find that the complaint as presented under the Payment of Wages Act, 1991 is not well-founded.

As outlined above.