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The Workplace Relations Commission (WRC) recently determined that a Galway-based Brazilian national was unfairly dismissed from her employment as a fashion buyer while awaiting her visa renewal[1]. The WRC awarded the former employee €25,000 in compensation.
Background
The complainant in this case was a Brazilian national living in Ireland since 2018. She commenced employment as a fashion buyer with the respondent, a Galway-based clothing retailer, on 2 August 2022.
The complainant held an Irish Residence Permit (IRP) card permitting her to lawfully work in Ireland. The complainant was required to renew her IRP card annually. The complainant applied to the Department of Justice on 20 November 2023 to have her IRP card renewed, well in advance of its expiry date of 23 January 2024. The respondent’s payroll administrator gave evidence that the complainant informed her in November 2023 that her IRP card was due to expire and that she had applied for it to be renewed.
The respondent’s office manager discovered on 23 January 2024 that the complainant’s IRP card was due to expire on the same day. Having sought legal advice on the ramifications of employing someone without a valid working visa, the office manager handed the complainant a letter of dismissal and informed her that her employment was being terminated with immediate effect because her IRP card had expired. The office manager admitted that he did not speak to the complainant about her visa situation, nor did the letter of dismissal provide the complainant with the opportunity to appeal the decision to dismiss her.
What did the WRC decide?
In this decision, the WRC Adjudication Officer, Niamh O’Carroll, stated that the office manager dismissed the complainant on 25 January 2024 despite her informing him that her IRP card would be renewed on 28 January 2024, one working day later. Ms. O'Carroll also noted that the complainant was not offered an opportunity to appeal the respondent's decision to dismiss her. Additionally, the office manager did not have a conversation with the complainant about her visa situation prior to dismissing her. Furthermore, no investigation was carried out.
In respect of the legal advice the office manager received, Ms O’Carroll noted that this advice did not inform him of the eight-week grace period allowed for by the Department of Justice[2], which allows employees who apply for a renewal of their IRP card before its expiry, but do not receive their new IRP card before said expiry date, to remain in the State on the existing conditions of their current IRP card for up to eight weeks.
In finding in favour of the complainant, Ms. O'Carroll outlined that she was satisfied that the complainant met the criteria set out by the Department of Justice and was entitled to the benefit of the eight-week grace period. She also noted that the respondent, in the absence of any procedures whatsoever and acting on incorrect information, unfairly dismissed the complainant.
Noting that the complainant had made “strenuous efforts” to secure new employment but had not at the date of the hearing been successful, Ms O’Carroll awarded the complainant €25,000 in compensation for unfair dismissal, pursuant to section 7 of the Unfair Dismissals Acts 1977 – 2015.
Key takeaway for employers
The decision of the WRC highlights the importance of following fair procedures before taking steps to terminate an employee’s employment, even in circumstances where it appears an employee may not have a legal entitlement to work in Ireland.
Equally, this case is a reminder to employers that, where there are immigration issues at play that impact the employment relationship, they should seek legal advice before dismissing an employee or taking any other actions in relation to their employment.
ALG’s Corporate Immigration team advises clients on all aspects of Irish immigration law. The team manages and assists clients with their corporate immigration and global mobility requirements. For further information in relation to this topic, please contact Noeleen Meehan, Partner or Colm Byrne, Associate from our Corporate Immigration team.
