In the recent case of Hussein v the Labour Court & Anor (High Court, 31 August 2012), the High Court has held that where an employee is required to have a work permit and for whatever reason fails to obtain one but takes up employment, the employment contract is void and the employee cannot avail of the protection afforded by employment legislation.
Mr. Younis, a Pakistani national worked for Mr. Hussein as a chef from 2002 until he left the job in 2009. Mr. Younis and Mr. Hussein were second cousins. Mr. Younis claimed that he had received no written statement of his terms and conditions; had no holidays and; had been paid below the national minimum wage. He took a claim to the Rights Commissioner.
The Rights Commissioner upheld the claims and awarded Mr. Younis compensation in the region of €92,000. Mr. Hussein who was not represented at the Rights Commissioner hearing did not pay the compensation. Mr. Younis referred the decision to the Labour Court which upheld the Rights Commissioner’s decision. Again Mr. Hussein did not attend the Labour Court hearing. Ultimately Mr. Hussein applied to the High Court for judicial review of the Labour Court’s decision.
Hogan J. found that the Employment Permits Act 2003 places an absolute prohibition on a non-national being in employment in this State without an employment permit. Section 2(1) creates an absolute offence so far as the employee is concerned since the very structure of this section in general, and section 2(4) in particular, is consistent only with the conclusion that while an employer can defend criminal proceedings on the grounds that it took all reasonable steps to ensure compliance, the employee cannot. The Court held that the absence of an employment permit, where required, renders the contract of employment substantively illegal and is not just a case of some incidental illegality in the performance of the contract.