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 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.
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.
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.