- within Immigration topic(s)
In the recent case of Hussein v The Labour Court and Younis, the High Court quashed a €92,000 award made by the Labour Court to a non-national man in relation to employment law breaches because his employment was unlawful, as he did not have a work permit.
The Facts
The applicant, Mr Hussein and the notice party, Mr Younis, were
Pakistani nationals and cousins. Mr Hussein who operates a
restaurant in Ireland recruited his cousin to work as a chef in
2002. Mr Younis originally had no English and had a work
permit for only his first year in Ireland. He claimed that he
worked seven days a week with no holidays, was paid merely pocket
money, and that his cousin Mr Hussein failed to legitimise his
position with the authorities.
In 2009 Mr Younis obtained information from the Migrants Rights
Centre regarding his rights and entitlements and thereafter made
formal complaints against Mr Hussein under the Terms of Employment
(Information) Act 1994, the Organisation of Working Time Act 1997
and the National Minimum Wage Act 2000. In 2011 a Rights
Commissioner found in favour of Mr Younis under all three
complaints. Mr Younis referred the complaints to the Labour Court,
which upheld the Commissioner's findings. The Labour
Court ordered that Mr Hussein pay €1,500 under the Terms of
Employment Information Act 1994; €5,000 for various breaches
of the Organisation of Working Time Act 1997 and €86,132.42 in
respect of back pay in accordance with the National Minimum Wage
Act 2000.
Mr Hussein sought and was granted a judicial review of the Labour
Court's decision on the grounds that Mr Younis had no legal
standing to invoke the protection of Irish employment legislation
as his contract of employment, in the absence of an employment
permit, was illegal.
Judgment
In deciding the case, High Court stated that the Employment
Permits Act 2003 prohibits a non-national from being employed
without the appropriate employment permit, and that this
prohibition applies to both employer and employee. However,
while an employer can defend criminal proceedings on grounds that
it took all reasonable steps to comply with the 2003 Act, no such
defence is available to the employee.
The High Court held that neither the Rights Commissioner nor the
Labour Court could lawfully entertain an application for relief in
respect of an employment contract that was illegal as a result of
the employee to whom it related not holding a work permit.
The decision of the Labour Court could therefore not be allowed to
stand. Notwithstanding the decision it felt obliged to
make, the High Court accepted that were Mr Younis' version of
events correct, he had been the victim of appalling exploitation in
respect of which he had no effective recourse.
Outcome
The Court made it clear that, while it felt compelled to apply the 2003 Act, there must be concern that that law creates unintended consequences, including that undocumented workers be deprived of the benefits and protections afforded to workers by Irish employment law. Accordingly, the Court felt it appropriate to send a copy of its decision to the Minister for Jobs, Enterprise and Innovation for consideration of policy. The Government has confirmed that it will review the decision and determine what action is to be taken.
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