Employee awarded €25,000 for unfair dismissal while awaiting visa renewal

Background

The Complainant is a Brazilian national who has lived and worked in Ireland for six years with an IRP card. She commenced her employment with the Respondent in August 2022.

The Complainant renews her IRP card annually. On 20 November 2023, the Complainant applied to renew her IRP card in advance of its expiry on the 23 January 2024. The Complainant had a conversation with the Respondent’s payroll administrator about her visa on that date. The Complainant was confident that her IRP card would be renewed because she satisfied the criteria, and her position was stronger than in previous years as she was now engaged to an Irish citizen and had applied for a mortgage in Ireland with her fiancée.

The Respondent’s office manager reviewed the Complainant’s file on 23 January 2024 and stated that he only become aware of the expiration of the Complainant’s IRP card on this date. The office manager allowed the Complainant to work on the 24^th and 25^th January 2024 whilst he sought legal advice. The legal advice informed the Respondent of the serious ramifications of employing an individual without a working visa but did not inform the Respondent of the eight week grace period allowed for by the Department of Justice. The office manager terminated the Complainant’s employment with immediate effect on Thursday, 25 January 2024 because her IRP card had expired. The Complainant explained to the office manager that her visa would be renewed on Sunday, 28 January 2024 but was told to go upstairs, gather her belongings and leave.

Grace Period

The Department of Justice published a Notice to Employers regarding employees awaiting renewal of their IRP card (the “Notice”) in 2022. The Notice provides as follows:

“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.”

Decision

The Adjudication Officer found that the Complainant was unfairly dismissed and awarded her €25,000 in compensation. In reaching her decision, the Adjudication Officer noted the following:

1.      The letter of dismissal did not provide an opportunity for the Complainant to appeal the decision to dismiss her.

2.      The office manager of the Respondent did not have a conversation with the Complainant about the status of her IRP card at any stage prior to dismissing her.

3.      The Respondent did not carry out any investigation prior to dismissing the Complainant.

4.      The Complainant met the criteria set out by the Department of Justice in the Notice in that she applied to renew her visa well before it expired, and she informed the Respondent’s payroll administrator about this on the date of her application. 

5.      The Complainant was dismissed without being afforded any procedures and the Respondent acted on incorrect information.

6.      The Complainant made strenuous efforts to secure new employment but, as at the date of the hearing, had not been successful.

Conclusion

This decision is a timely reminder to employers that the principles of fair procedures are extremely important when considering taking any action which may lead to the dismissal of an employee. Employers should always proceed with caution in dismissal situations even if there is a concern about the employee’s legal permission to remain or work in the State. 

Click here to read the WRC decision.

Click here to read the Department of Justice Notice to Employers.

For further information on this topic, please contact Triona Cody or any member of the Employment Team.

This document has been prepared by Kane Tuohy LLP on 31 October 2024 for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.