In Polaine Fernandes Lima v Elland Distributors Born Clothing ADJ-00049872, the Complainant brought a complaint to the Workplace Relations Commission (“the WRC”) under section 8 of the Unfair Dismissals Act, 1977.
The Adjudicator, Niamh O’Carroll, found that the Complainant was unfairly dismissed and awarded the Complainant €25,000 as compensation.
Facts: The Complainant is from Brazil and lives and works in Ireland with an Irish Residence Permit card (“IRP Card”). She has been here for six years. She previously worked in Dublin for Zara and Gucci. She renews this card annually. On 20th November 2023 she applied to renew her visa. It was due to expire on the 23rd of January. She had a conversation about it with the Company’s Payroll Administrator on that date. The Complainant was certain that it would be renewed because she satisfied all of the criteria, and her position was now stronger than in previous years as she was now engaged to an Irish citizen and had applied for a mortgage here with her fiancé.
The Respondent stated that it reviewed her file on the 23rd of January and seemingly realised that her visa was due to expire that day.
Employing someone without valid employment permission is a criminal offence.
The witness for the Respondent stated that he allowed the Complainant to work on the 24th and 25th January while he was getting legal advice despite knowing the possible ramifications of employing someone who wasn’t legally entitled to work in the State.
It seems the legal advice received did not inform the Respondent of an applicable eight week grace period allowed for by the Department of Justice in respect of the immigration status of a person in the Complainant’s situation.
The Department of Justice had published a “Notice to Employers regarding employees awaiting renewal of their IRP Card”, stating: “If an employee’s IRP card has expired and they are unable to obtain a valid registration card by the expiry date of their current IRP card, they are still legally permitted to remain in the State on the existing conditions of their current IRP card for a maximum of 8 weeks. This 8-week provision is subject to the employee providing proof that they have applied to renew their registration, including when changing stamp category, prior to their current IRP card expiring.”
It sems the Respondent was not aware of this notice.
The Respondent dismissed the Complainant on the 25th January by handing her a letter of dismissal and telling her she was being let go because of her visa had expired. The Complainant confirmed that it would be renewed on the 28th, one working day later. Nonetheless she was told to go upstairs, get her belongings and leave. The Respondent’s witness accepted there had been no investigation and the Complainant was not given any opportunity to appeal the decision to dismiss her
Decision: The Adjudicator was satisfied that the Complainant did meet the criteria set out by the Department of Justice in that she had applied to renew her visa before it expired, and she informed the Respondent about that on the date of her application. The Adjudicator stated that the information regarding the eight week grace period in relation to the visa is on the Department website and is readily available to anyone who looks for it. Such research was not carried out by the Respondent prior to terminating the Complainant’s employment.
The Adjudicator found that in the absence of any procedures and acting on incorrect information, the Respondent dismissed the Complainant and the dismissal was unfair.
At the time of the hearing, the Complainant had not found alternative employment despite making strenuous efforts to mitigate her loss. In the circumstances, the Adjudicator made an award of €25,000 for the unfair dismissal (which would appear to be over 6.5 months pay).
Takeaway for Employers: This decision reflects the challenges that can sometimes arise in practice in terms of trying to reconcile employment law rights and immigration rules. On the one hand an employer needs to be very careful not to commit a criminal offence by employing someone who does not have a valid employment law permission. However, on the other hand, the Employer is under an obligation to conduct all necessary investigations to ensure they are correctly interpreting the relevant immigration/employment permission rules because premature termination on the basis of a misunderstanding of those rules will not shield the employer from a successful unfair dismissal claim by the employee.
The rules governing visas and work permits can sometimes be complex which can make this a tricky area for employers and their advisers to navigate. It is advisable that employers keep a close eye on the expiry dates of any immigration/employment permissions and take appropriate legal advice in good time ahead such expiry.
Link – https://www.workplacerelations.ie/en/cases/2024/september/adj-00049872.html
Authors – Jane Holian and Laura Killelea
31st October 2024
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.
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