The recent Labour Court decisions in TA Hotels Limited t/a Lynam's Hotel v Vireshwarsingh Khoosye and TA Hotels Limited t/a Lynam's Hotel v Preeti Khoosye have significant ramifications for migrant workers employed in Ireland without the required immigration permissions.
Background
The complainants' visas expired in 2013 and 2014 respectively. They applied to renew their visas in 2015. However, due to a delay and a case going through the superior courts, they were not granted new visas until 2019. They brought a number of claims to the WRC relating to their alleged dismissal, in August 2016. Their former employer (the "Hotel") claimed their contracts had been terminated some months earlier because of their failure to get new work visas.
The WRC found in the complainants' favour and awarded them more than €10,000 in compensation (in addition to their statutory redundancy entitlements), a decision which the Hotel appealed.
The Labour Court had initially refused to hear that appeal for want of prosecution where the Hotel entity had been struck off the register but were compelled to hear it following the Hotel's successful judicial review challenge to that decision in the High Court.
Meaning of "civil proceedings"
This case turned on what the term "civil proceedings" means in the Employment Permits Acts 2003-2014. Section 2B of the Acts seeks to provide a route for migrant employees, without valid immigration permissions, to recover monies owed to them by their employer. The Acts empower such employees (or the Minister for Employment Affairs and Social Protection) to take "civil proceedings for an amount of money to recompense the foreign national for such work done or services rendered."
The Labour Court's interpretation of the High Court's judgment in Hussein v Labour Court and the Supreme Court's judgment in Quinn v IBRC proved central to the determination of the correct interpretation of the term "civil proceedings".
Hussein saw the High Court overturning a Labour Court award to an employee because that employee did not have a valid employment permit. The Supreme Court subsequently overturned the High Court decision for technical and procedural reasons unrelated to the substantive question. Essentially, it found that the High Court should never have heard the case because it was outside of its jurisdictional limits for a judicial review challenge.
The position of the parties
The Hotel argued that the complainants' contracts of employment were illegal and unenforceable due to their lack of the required immigration permissions. The Hotel argued that it followed that they could not enforce their statutory employment rights. The Hotel argued the Hussein High Court decision (notwithstanding its reversal by the Supreme Court) still bound the Labour Court as to the consequences for employment rights claims of working without valid immigration permissions.
The complainants argued that the Hussein Supreme Court decision meant that immigration status "should no longer be permitted to undermine basic employment rights". They reminded the Labour Court that the Acts contained a defence for an employee who took all such steps as were reasonably open to him or her to ensure compliance, and to seek monies owed through "civil proceedings". The complainants contended that this protection was brought in by amendment following the Hussein High Court decision.
The Labour Court
The Labour Court overturned the first instance WRC decisions which had found in the complainants' favour. The Labour Court distinguished Hussein from the present case and instead relied on Quinn, which it considered of far greater relevance.
The Labour Court concluded that:
- the employees' only option was to seek compensation through "civil proceedings"; and
- the term "civil proceedings" did not include claims brought before the Labour Court because "[i]n law, the Labour Court was not such a court" but instead was a "quasi-judicial tribunal exercising a specialist jurisdiction in respect to statutory employment rights." The Labour Court's reasoning was that "civil proceedings" were not defined by the Acts to include the Labour Court. The Labour Court considered that the Acts used "civil proceedings" only to distinguish from criminal proceedings.
The Labour Court accordingly found it clear that the Acts only granted jurisdiction to the District Court, Circuit Court and High Court, depending on the monetary threshold applicable to a particular claim. Relying on Quinn, the Labour Court found the complainants' contracts of employment could only be enforced in the ordinary courts and not before it or the WRC. The Labour Court concluded that section 2B of the Acts provided a common law remedy precisely for situations where work was performed under a contract both parties believed valid but which turned out to be void. This is precisely the position in relation to these cases, where the Labour Court found the complainants' contracts of employment void and unenforceable. Accordingly, they had no locus standi before it.
The Labour Court overturned all of the decisions made in the complainants' favour, including in relation to redundancy payments, payment of wages, working time and terms of employment claims.
Assessment
The consequences of the Labour Court's decisions may prove extremely severe for non-EEA migrant employees without immigration permissions. The Labour Court's decisions strongly suggest those employees without valid immigration permissions will be prevented from bringing employment rights claims through the statutory bodies set up to deal with such claims.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
