Award to migrant quashed over illegal job status

 

A €92,000 award by the Labour Court to a Pakistani man over employment law breaches arising from his employment in an Indian restaurant in Dublin must be quashed, the High Court has ruled. This was because his employment was unlawful, as he had no work permit.

Mohammad Younis secured the award after alleging he worked 11 hours a day, seven days a week, for “pocket money” for a number of years from 2002 in the Poppadom restaurant, operated by his second cousin, Amjad Hussein. He said he lived in “hostel-type” accommodation provided by Mr Hussein, who denied the claims.

Yesterday, Mr Justice Gerard Hogan said his judgment on the case had important policy implications that the Minister for Jobs and the Oireachtas might consider addressing.

It may not have been intended by the Oireachtas that undocumented migrant workers, not least a vulnerable migrant such as Mr Younis, should be deprived of the benefit of all employment legislation because of their illegal status, he said. Such workers might not be responsible for, or even realise, the nature of the illegality.

If Mr Younis’s claims of his treatment were correct, and both the Labour Court and a Rights Commissioner had accepted those claims, he had been the victim of “the most appalling exploitation”, the judge added. Mr Hussein had not been legally represented before the Labour Court and commissioner.

He made the remarks in his reserved judgment upholding the judicial review challenge by Mr Hussein, trading as Poppadom restaurant, to the Labour Court decision. The case raised important issues concerning undocumented and low-paid workers’ rights, particularly over whether undocumented workers may seek redress for alleged exploitation.

While the Oireachtas must regulate the labour market by specifically deterring illegal immigrants from taking up employment, that legislation, if applied unyieldingly, might have serous consequences for vulnerable migrants exploited by unscrupulous employers, the judge said.

In this case, Mr Younis, who did not speak English and arrived here in the summer of 2002, claimed he was grievously exploited by Mr Hussein and required to work seven days a week with no holidays, except for one month in September 2009, which was unpaid.

Mr Younis claimed Mr Hussein paid him “pocket money” in cash, failed to regularise his tax position and retained his Pakistani passport.

He alleged he only became aware of his true position when Mr Hussein’s wife brought him to the Migrant Rights Centre in August 2009. He later resigned his job and initiated claims under the Terms of Employment (Information) Act, Organisation of Working Time Act and National Minimum Wage Act, resulting in the Labour Court award of €92,000.

Mr Hussein rejected the claims. He alleged Mr Younis had a work permit from July 2002 to July 2003, but not after that, and effectively lived with Mr Hussein as a member of his extended family. Mr Younis was fully aware he needed a work permit, he said.

In September 2011, the Labour Court upheld a Rights Commissioner’s findings that Mr Hussein failed to provide Mr Younis with documents concerning his employment over an extended period, and breached annual leave, working time and holiday entitlements.

The award to Mr Younis included €86,132 in back pay based on underpayments from September 2002.

Mr Hussein challenged the Labour Court decision on the central ground that Mr Younis had no entitlement to the protection of employment laws because he had no work permit.

Mr Justice Hogan agreed that a non-Irish national could not be employed without an appropriate permit and said the prohibition on employment applied to both employers and employees. However, while an employer could defend criminal proceedings on grounds they took all reasonable steps to ensure compliance under the Employment Permits Act 2003, that defence was not available to an employee.

The 2003 Act provided that a non-Irish national employee who worked without a permit automatically committed an offence and their contract of employment was void, he said.

The Rights Commissioner and Labour Court could thus not make an award in relation to an employment contract which was substantively illegal.

While that conclusion appeared inescapable, it was not a result which yielded much satisfaction, the judge added. While the court must apply the 2003 Act, there must be concern that the law was producing consequences not foreseen or intended, including that undocumented workers be deprived of the benefits of employment laws.

As healthy dialogue between the legislature and judiciary could only serve the public interest, he would refer his judgment to the Oireachtas for consideration of policy implications of the 2003 Act, if it chose to do so.