Oireachtas asked to look at Employment Permits Act

Mon, Oct 22, 2012, 01:00

HIGH COURT JUDGMENT:Hussein -v- The Labour Court & Anor

Neutral Citation IEHC 364

High Court

Judgment was delivered on August 31st by Mr Justice Hogan

Judgment

An undocumented migrant worker could not avail of the protection of employment legislation as his contract of employment was illegal under the Employment Permits Act.

Background

Mohammad Younis is a Pakistani national who came to Ireland in 2002 to work for his second cousin, Amjad, who owned a restaurant. He claimed he was required to work seven days a week with no holidays and was paid only pocket money. He said his employer failed to regulate his position in relation to a work permit with the relevant authorities, including the Revenue Commissioners, and kept his passport.

These matters came to his attention in 2009 when he sought the assistance of the Migrants Rights Centre. He made a formal complaint to a Rights Commissioner under the Employment (Information) Act, the Organisation of Working Time Act and the National Minimum Wage Act, where his complaints were upheld. This was confirmed by the Labour Court, and a sum of €91,134 was awarded in compensation and back pay.

His solicitor wrote to Mr Hussein several times seeking payment, but this was not forthcoming, and Mr Younis then applied to the Circuit Court for the enforcement of the award. Mr Hussein obtained leave to seek a judicial review. He claimed that, because any contract of employment was an illegal one in the absence of an employment permit, Mr Younis had no standing to seek redress.

Mr Justice Hogan said that, though Mr Hussein had delayed and vacillated in the face of the requests of payments, the issues raised were of such fundamental importance that it would not be appropriate to find against him on the grounds of delay.

Decision

Mr Justice Hogan pointed out that the Act stated that a non-national could not enter employment except in accordance with an employment permit granted by the Minister, and breach of this is a criminal offence for both employer and employee.

However, it was clear that while an employer can defend criminal proceedings on the ground that he or she took all reasonable grounds to secure compliance with the Act, no such defence was available to the employee. It created an absolute offence for an employee to take up employment without a permit.

The fact that the Oireachtas must have intended that a non-national employee from outside the EU and EEA automatically commits an offence if he or she does not have a work permit, irrespective of the reasons for that failure, necessarily has implications as far as the civil law is concerned, he said.

It would not be a sensible construction of the 2003 Act if it was admitted that such a contract was expressly forbidden, yet the courts permitted administrative bodies such as the Labour Court to give remedies.

There was no saving clause in the Act that might operate in favour of the employee by allowing him to seek effective redress when the failure to obtain the appropriate permit was not his personal fault.

Mr Justice Hogan said that, while he was bound to apply the policy as articulated by the Oireachtas, there must be concern that the legislation would produce unforeseen consequences. It may not have been the intention of the Oireachtas that a vulnerable migrant worker such as Mr Younis should be effectively deprived of the benefit of employment legislation by virtue of his illegal status, even if he was not responsible or even not aware of it.

He therefore said he was going to transmit a copy of the decision to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise, Employment and Innovation so that they could, if they wished, give consideration to the policy implications of the 2003 Act as manifested in the judgment.

The full judgment is on courts.ie.


Richard Humphreys SC and Cathal McGreal BL, instructed by Trayers Co, for Mr Hussein; Bernadette Kirby BL and Patrick McCann SC, instructed by James MacGuill and Co, for Mr Younis; Joe Jeffers BL, instructed by the Chief State Solicitor, for the Labour Court

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