The recent case of Amjad Hussein v The Labour Court and Mohammad Younis (Notice Party) [2012] IEHC 364 identified a perceived lacuna in the Employment Permits Acts 2003 to 2012 (the “Employment Permits Acts”). The Hussein case provoked considerable consternation amongst the public as a non-national employee was placed in the position whereby he was unable to invoke the various protections afforded by Irish employment legislation by reason of the illegality of his contract of employment. The illegality arose from the employee’s failure to hold the required employment permit and, despite allegations of gross exploitation, no redress was available against the employer. A Private Members’ Bill was published on 20 November 2012 to address and rectify the perceived anomalies highlighted in the Hussein case.

Facts

Mr Younis, the notice party and claimant in the case, was a Pakistani national who had worked for his cousin and applicant in the case, Mr Hussein, as a chef from 2002 until he left this job in 2009. Mr Younis brought a case to the Rights Commissioner Service claiming that he was grievously exploited during this period by having to work seven day weeks with no holidays. Furthermore, he contended that his remuneration from Mr Hussein effectively “amounted to pocket money in cash” and that Mr Hussein had failed to regularise his position with the Revenue Commissioners. Mr Younis also contended that he relied completely on Mr Hussein to manage his employment permit, taxes and passport affairs.

Mr Hussein strongly opposed the allegations of mistreatment and claimed that Mr Younis had lived with him as a member of the extended family. Furthermore, Mr Hussein contended that whilst Mr Younis had initially secured a work permit for the period between July 2002 and July 2003, he had not been granted a work permit since this latter date and was fully aware of the legal requirement to hold such a permit.

Evidence was adduced to show that Mr Younis had sought to avail of an amnesty operated for undocumented workers by the Department of Enterprise and Employment in December 2009.

Rights Commissioner Decision and Labour Court Determination

Before the Rights Commissioner, Mr Younis was successful with his claims under the Terms of Employment (Information) Acts 1994 to 2012, the National Minimum Wage Act 2000 and the Organisation of Working Time Act 1997. The case was subsequently referred to the Labour Court. The Labour Court upheld the decision of the Rights Commissioner and awarded Mr Younis the sum of €92,632 for the combined breaches of the above statutes. Mr Hussein then judicially reviewed this decision in the High Court.

Judicial review to the High Court

In the High Court, Mr Hussein contended that, by virtue of the absence of an employment permit, Mr Younis’ contract of employment was illegal and, therefore, he did not possess the requisite standing to invoke the protections afforded by Irish employment legislation. The case centred on an analysis of Section 2 of the Employment Permits Acts. Section 2(1) provides that a non-national may not enter the State or be in employment in the State except in accordance with an employment permit. This imposes a positive obligation on the employee to obtain an employment permit. Section 2(2) address the obligations incumbent on employers and provides that a person shall not employ a non-national in the State except in accordance with an employment permit. A breach of Section 2(1) or 2(2) constitutes a criminal offence.

Interestingly, while Section 2(4) provides that it shall be a defence for an employer charged with an offence to show that he/ she “took all such steps as were reasonably open to him or her to ensure compliance” with Section 2(2), there is no similar defence available for an employee. Thus, Section 2(1) creates an absolute offence for employees.

High Court Judgment

Hogan J. overturned the determination of the Labour Court and found in favour of Mr Hussein. Mr Younis was not permitted to avail of the employment law protections by virtue of the illegality of the contract of employment. Addressing the illegality point, Hogan J. quoted from previous case law and restated the principle that the “parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the Legislature has clearly given a right to sue.” While there is a limited carve out under the Unfair Dismissals Acts 1977 to 2007 in respect of the Income Tax Acts and the Social Welfare Acts, there is no similar carve out under the Employment Permits Acts. He also remarked that due to the provisions of the Employment Permits Acts “one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantive illegality”.

In concluding his judgment, Hogan J. recognised the perceived anomaly present in the Employment Permits Acts and, in a highly unusual act, indicated that he would sent a copy his judgment to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation to ensure that the legislation was reviewed.

Conclusion

As noted above, a Private Members’ Bill was published on 20 November 2012 to address and rectify the perceived anomaly highlighted in the Hussein case. Although like most Private Members’ Bills, it is unlikely this Bill will pass, it is a useful demonstration of any legislation that is introduced to deal with the perceived issue. The Bill provides that a non-national employee would be permitted to pursue redress pursuant to his/her contract of employment and seek to enforce the applicable employment law rights as if a valid employment law permit had been in place.

Hogan J.’s judgment also raises interesting considerations in respect of the enforcement of illegal contracts generally. It is a well enshrined legal principle that it is unconscionable to allow an individual to rely on his/her own act of illegality. It must be remembered that on the facts of the case both Mr Hussein and Mr Younis were aware of the breach of the Employment Permits Acts and, in such circumstances, the contract was not enforceable by either party. However, employers should be cognisant that it is their responsibility to obtain and process work permits on behalf of their employees. Consequently, in the event that an employer fails to comply with the Employment Permits Acts but the employee is unaware of this non-compliance, the employee may still be entitled to obtain redress under employment legislation. An Employment Appeals Tribunal case in 2005 (Dubyna v Hourican Hygiene UD781/2004) held in favour of the employee in such circumstances. While the facts in the Dubyna case are different to the Hussein case, it is interesting that it was not cited in Hogan J.’s judgment.

Employers should ensure that appropriate employment permit records are maintained and all relevant documentation submitted to the Department of Jobs, Enterprise and Innovation to ensure that nonnational employees are compliant with the requirements under the Employment Permits Acts. A failure to do so will result in an offence under the Employment Permits Acts and may expose the employer to a claim under employment legislation, e.g. the Unfair Dismissals Acts 1977 to 2007. Comprehensive record keeping will also assist employers in defending any potential criminal proceedings which may be initiated for an breach of Section 2(2) of the Employment Permits Acts.