A foreign national and his employer were placed in a "Kafkaesque situation" when immigration officials wrongly claimed that he was not entitled to work in Ireland, the Workplace Relations Commission (WRC) has said.
The worker, Erik Fernando Policarpo, lost his unfair dismissal case against his former employer Euro Farm Foods, based in Cooksgrove, Duleek, Co Meath.
The employer, who is engaged in beef processing, said Mr Policarpo was laid off due to actions outside their control or the control of the employee.
Dismissing Mr Policarpo's claim, the WRC acknowledged that both parties had been placed in a "Kafkaesque situation" by the Garda National Immigration Bureau (GNIB) who determined the complainant had been working illegally at the plant.
The WRC heard that the factory was subject to an unannounced site visit by members of the GNlB and WRC inspectors on June 8, 2022.
Mr Policarpo, who had been working as a general operative at the plant since December 2020, was one of eight non-EU workers identified by gardaí as individuals they believed were not entitled to work in Ireland.
As a result of the inspection, the complainant was sent home the following day, even though he said he was entitled to work at the time.
Both he and his employer raised the issue of his status on a number of occasions but it took over three months for the GNIB to acknowledge that five of the eight workers, including Mr Policarpo, were in fact allowed to work.
In evidence, Mr Policarpo said he believed he was dismissed and then later reinstated to his position.
He also claimed that Euro Farm Foods had taken a negative view of him after he had earlier brought a personal injury claim against the company.
The general manager of Euro Farm Foods, Ciaran Boyle, gave evidence that there was no termination of Mr Policarpo’s employment.
Mr Boyle said the company was bound to follow the GNIB’s instructions and did their best to challenge them via their solicitors.
He claimed that Mr Policarpo knew at all times that he was on temporary unpaid leave or lay-off.
The WRC heard that Mr Policarpo returned 20 days after being sent home for an update and was informed by the company that they were raising the matter but they could not allow him to work until the issue was resolved.
It noted that the complainant could not navigate the Irish social welfare system and was under extreme financial stress.
He had obtained a loan but ultimately had bought a plane ticket for himself and his son as he intended to go back to Brazil to work and to send money to Ireland where the rest of his family were to remain.
However, he was told on September 15, 2022 that he could return to work three days later.
WRC adjudication officer, David James Murphy, noted that the company held a meeting with the complainant and his colleagues following the GNIB inspection and told them they were being laid off and being paid in arrears.
Mr Murphy also observed that Mr Policarpo had agreed under cross-examination that he was on unpaid leave at this time and that he had asked Euro Farm Foods for a letter to confirm the same.
He accepted the company had sought to challenge the GNIB’s error over several employees not being allowed to work at the plant but had received no substantive reply for months.
After reviewing correspondence between the parties and between Euro Farm Foods and the State, Mr Murphy said it was clear that it was "an exceptional situation" which made Mr Policarpo’s employment temporarily untenable.
He said Euro Farm Foods could not reasonably be expected to ignore directions from the GNIB and allow Mr Policarpo to continue to work under the threat of criminal prosecution.
"They placed the complainant on lay-off which was an option provided for in his contract of employment," said Mr Murphy.
He said it was also clear that the situation was understood by both parties.
Mr Murphy said he did not accept that Mr Policarpo was dismissed and ruled that his claim for unfair dismissal could not succeed as it was not well founded.
