The Workplace Relations Commission (WRC) has found that a book-keeper “never actually took up” a higher-paid job at a craft brewery where he worked which would qualify him for a work permit, but “used the situation” to deal with his to deal with his visa status
The tribunal accepted the evidence of the craft brewery’s former owner, who said the worker, Rodolpho Dos Santos, “set the terms” of the contract and then “reneged” on it the same day it was signed.
Mr Dos Santos has failed in a series of statutory complaints against his former employer, The Dublin Lager Company, trading as Larkin’s Brewing Company, in which he accused the firm of unfair dismissal, a contract breach and unlawful pay deductions.
He said the company had been “happy to sponsor me” and denied accusations of underperformance.
The tribunal heard the complainant started work in June 2020 on a probationary contract as an office manager doing bookkeeping for the microbrewery, which was until recently owned by its founder Cillian Fahey and members of his family.
“Mr Dos Santos told me he wanted to apply for a work permit and needed a higher salary,” Mr Fahey said. He said the complainant made a proposal to take on sales duties and start exporting to Portuguese and Brazilian markets.
“Of all the tasks Rodolpho had, the one major skill he had was chasing invoices. He’s incredibly tenacious. He managed to get us paid by people we never thought we’d be paid by,” Mr Fahey said, adding that he believed the complainant could be a successful salesman and that the extra salary cost of €2,000 was worth it.
“The [enhanced] contract was entered into in good faith. When he reneged on that contract, that was the end of it as far as we were concerned. He’d set the terms, not us. We’d agreed to them, he’d cancelled them,” Mr Fahey said in his evidence.
He said the complainant pulled out the same day they signed the contract, 25th January, 2021, and never performed any of the duties set out in the contract.
Mr Dos Santos said he would “continue to use the new contract ... for the purpose of his employment permit”, Mr Fahey said.
Under cross-examination by Mr Dos Santos’s solicitor, Frances Whelan of Tbook McLynn, Mr Fahey agreed that the complainant approached him because his visa was “about to expire” and that he was “happy to sponsor” the complainant.
“You said you weren’t familiar with the process and you asked him to draft the contract?” counsel asked.
“I don’t recall, but I can confirm I’m not familiar with the immigration process,” Mr Fahey said.
“Do you accept it was yourself who directed Mr Dos Santos to carry on [with] the role in the first contract?” Ms Whelan asked.
“No, absolutely not,” Mr Larkin said.
Adjudicating officer Niamh O’Carroll then intervened in the cross-examination and said: “Mr Fahey, just be careful – I’m getting the impression that this second contract was drafted disingenuously for the purpose of pulling the wool over whoever issues the work permit.”
Gerry Sheehan, the company’s accountancy contractor, said in evidence that the bookkeeping records prepared by Mr Dos Santos were “in no way fit to be used as a basis for company accounts”.
“We were led to understand he did not understand the basic rules of bookkeeping,” Mr Sheehan said – leaving him with no option except to quadruple his firm’s fee from €500 to €2,000 for the preparation of the accounts.
“It was the longest job I had that year. I wasn’t aware Mr Dos Santos has previous qualifications in bookkeeping. That wasn’t apparent to me for the quality of work that was done,” he said.
The chief brewer at the company, Dylan Sturdy, said Mr Dos Santos at one stage cost the firm €900 by ordering a tonne of the wrong malt which was left “taking up space in the warehouse”.
In his own evidence, Mr Dos Santos denied allegations of underperformance and said other colleagues had been responsible for the bookkeeping function alongside him, blaming another colleague in the office for the malt mix-up.
He said Mr Fahey “knew my salary had to be increased” and his existing role as operational manager was not on the list of eligible occupations for the visa he was seeking.
“I explained to [Mr Fahey] that my visa would expire at the end of February 2021 and in order to stay, if happy with my work, the company had to sponsor my work permit. He said to me, yes, he’d be happy to sponsor me because he wanted me to stay in the company,” he said.
“He said I could take over the procedures to get the work permit,” he said, adding that performance issues, which he denied, were only raised with him in April 2021.
“It basically destroyed my confidence, my mental health ... I have to pay rent, food, also my visa issues that arose. It was a really tough time,” he said of his dismissal by the firm.
“So, Mr Fahey was giving you an increase for a role you weren’t performing, is that your evidence?” asked the company’s solicitor, Anna Butler of Peninsula Business Services.
“I did what I was asked,” the complainant said.
“You didn’t inform Mr Fahey he could export into the Portuguese market, you didn’t suggest that?” counsel asked.
“No, I was just asking for my job to be continued on,” he said.
“Did you ever inform Mr Fahey you could export [to those markets]?”
“I didn’t suggest – he’s the employer, he asked me to carry over the same job I was doing,” the complainant said.
In her decision on the case, the adjudicator, Ms O’Carroll, wrote that it was “very clear” that Mr Dos Santos “never” started the new sales job and had no entitlement to the €2,000 salary increase set out in the contract for it.
“I am satisfied that the complainant used the situation to assist him with this visa situation bit never actually took up the role. I do not accept his evidence in that regard,” Ms O’Carroll ruled.
The adjudicator rejected Mr Dos Santos’s Payment of Wages Act and Terms of Employment (Information) Act claims on that basis.
Ms O’Carroll found that as the complainant’s employment had continued past the end of his probation he did have the right to fair procedures.
However, Mr Dos Santos “voluntarily left” in June that year, she wrote, without raising a grievance about training or appealing the decision to dismiss him.
“In the unusual circumstances of this case I can find no reason to deem the dismissal of the complainant unfair,” she concluded, rejecting the Unfair Dismissals Act complaint as well.
