Court upholds right of Gama workers to take cases in Ireland

The Court of Appeal has upheld decisions clearing the way for 491 Turkish construction workers to bring actions in Ireland, rather than Turkey, against their employers for some €40.3 million compensation over alleged underpayment of wages and benefits while working here on State contracts.

The three-judge appeal court rejected appeals by Gama Endustari Tesisleri Imalat Montaj AS (Gama Turkey) and its wholly owned Irish company, Gama Construction Ireland Ltd, against two High Court decisions permitting the Irish courts hear the workers action against both companies.

The workers are claiming some €40.3 million compensation and damages for alleged breach of contract and breach of duty. They are also seeking exemplary damages over how their wages were allegedly withheld and/or how their employment was terminated when they made complaints.

The cases arise as a result of the involvement from 2000 of both Gama companies in National Development Programme infrastructural works here. Gama employed 1,066 people here in 2003 and in 2005, when a dispute over wages broke out, had 927 permits for workers from the Department of Enterprise, Trade and Employment.

In February 2005, Socialist Party TD Joe Higgins told the Dáil Gama “imports” workers from Turkey and paid them about €2 to €3 per hour, in breach of the minimum wage law. The workers were required to work “grotesque” hours, accommodated in company barracks and their situation was a modern version of “bonded labour”, he alleged.

The Minister for Enterprise, who said his department war given assurances from Gama Ireland all provisions of Irish employment law would be observed and the ‘going rate’ would be paid to all Turkish workers, ordered its labour inspectorate to investigate the claims.

Gama Turkey later sought an undertaking that inspector’s report would not be published. When that was not given, it took legal proceedings and the Supreme Court ultimately ruled in 2009 there were no powers of general publication of the report and only State bodies with a criminal prosecutorial function could see it.

Both Gama defendant companies had entered conditional appearances in the workers’ proceedings for the sole purpose of contesting the jurisdiction of the Irish courts to hear the action.

In seeking to have the case heard in Ireland, the workers argued they were employed here under the terms of a Registered Employment Agreement, the applicable law is Irish law and there was “clear” evidence the defendants had breached Irish employment law.

The workers argued a key issue in the case will be “the investigation required to clarify and ascertain the method by which monies were routed from Ireland, and presumably Gama Ireland, to Finans Bank and then transferred to Ryder Investments MV”. They also argued large amounts of their claims would be statute barred in Turkey.

In her High Court decision, Ms Justice Elizabeth Dunne ruled the workers had established the appropriate forum for the hearing of the proceedings is Ireland, not Turkey.

Separately, in another High Court decision, Mr Justice Michael White permitted the workers correct a procedural error in their claim.

In the Court of Appeal judgment delivered on Friday, Mr Justice Michael Peart, Ms Justice Mary Irvine and Mr Justice Alan Mahon upheld both High Court decisions.

The court upheld a finding by Ms Justice Dunne the Irish courts have jurisdiction, under an EC 2001 regulation concerning jurisdiction and enforcement of judgments in civil and commercial matters, to decide the workers’ claims. A procedural irregularity by the plaintiffs in not including a specific endorsement in their plenary summons did not deprive them of entitlement to invoke the Regulation, the court ruled.

Ms Justice Dunne had found the failure to adhere to the correct procedure could be addressed by an application to amend the summons, the appeal court noted. It was a correct exercise of discretion by Mr Justice White to later permit that amendment, the court added.