Court upholds chef’s award of €91,000

A chef who was forced to work seven days a week for “pocket money”, with just Christmas Day off, has had a €91,000 award made against his employer upheld by the Supreme Court.

Muhammad Younis (59) worked up to 77 hours a week at his second cousin's Poppadom restaurant in Newlands Cross, Dublin, for as little as 51 cent an hour.

He left Pakistan in 2002 to come to Ireland to work as a tandoori chef for his cousin, Amjad Hussein.

He did not speak English, had no real contact with the Irish community and was required to work seven days a week with no holidays (save for one month in September 2009) which was unpaid, he said. He was paid what amounted to pocket money in cash, he said.

He obtained advice from the Migration Rights Centre, and in 2011 a rights commissioner awarded him €91,134, of which €86,134 was back pay.

When his cousin did not pay, the Labour Court subsequently made an order directing the money be paid.

Mr Hussein, who had not contested the Labour Court decision, brought judicial review proceedings in the High Court, which in 2012 quashed the award.

Protection

Mr Hussein argued that Mr Younis could not invoke the protection afforded by Irish labour law because any contract of employment held by him was illegal as the chef did not have an employment permit.

The High Court ruled that because Mr Younis was working illegally, his employer having failed to renew his work permit, he was not protected by Irish employment law.

Mr Younis, supported by Amnesty International and the Migrant Rights Centre of Ireland, appealed the High Court ruling to a three-judge Supreme Court, which yesterday overturned that decision.

Mr Justice John Murray, on behalf of the court, said the High Court referred to the Labour Court as having "upheld" the rights commissioner's decision.

Function

Because Mr Hussein had not contested the rights commissioner decision, it was “manifestly not the function of the Labour Court” to uphold or refuse to uphold the merits of the decision of the rights commissioner, he said.

The Labour Court was concerned objectively only with the fact a decision had been made but not complied with by the employer, he said. The Labour Court decision did not, as the High Court seemed to suggest, implicitly engage in upholding the reasoning of the rights commissioner.

Judicial review proceedings are not an appeal of a decision but are concerned only with reviewing whether the decision maker acted within his or her powers, he said.

There was no basis in this case for suggesting the employer, Mr Hussein, would be entitled to have the Labour Court decision set aside.

This was because the form and subject matter of the rights commissioner’s decision – an inherently lawful activity of employer/employee relationship – was outside the scope of the judicial review proceedings which had been brought, he said. The Labour Court cannot therefore be said to have erred in law, the judge ruled, and set aside the order of the High Court.