In a posting last week we highlighted a recent decision in the case of Amjad Hussein -v- The Labour Court and Mohammah Younis [2012] No. 194 J.R. where the High Court ruled that Muhammad Younis was not entitled to a Rights Commissioner award of €92,000 because his employment contract was substantively illegal. The full decision has now been published and as this weeks Landmark Decisions series we are looking at a review of what will no doubt be a very important determination in relation to migrant workers.
From the outset the Court had set that the decision taken in relation to this case posed great difficulty "The Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment, as failure to do so could have serious medium term implications for both employment and immigration policy. If, however, that legislation is applied in a rigorous and unyielding manner it might have serious consequences for vulnerable migrants who found themselves exploited by unscrupulous employers. The nature of the legislator’s dilemma is well illustrated by the facts of the present case." Background This case was originally heard by the Labour Court on 24th June 2011, and following an award of €91,134 (€5,000 in respect of breach of the Organisation of Working Time Act, €1,500 in respect of breaches of the terms of employment (information) Act, and €86,132.42 for breach of the National Minimum Wage Act). The employer failed to comply with this award and an application was made, by the employee, to the Circuit Court for enforcement of the award. This is how the case found its way to the High Court to be heard by Mr. Justice Hogan. Summary Mr. Younis (Employee) claims that he was recruited by Mr. Hussein (Employer) in September 2002 to work in Ireland as a tandoori chef . Mr. Younis’ contention is that he was grievously exploited by his cousin when he arrived in Ireland. He maintains that he was required to work seven days a week with no holidays (save for one month in September 2009) which was unpaid. The Employee contends he was paid what amounted to pocket-money in cash and that his employer had failed to regularise his position with the relevant authorities, including the Revenue Commissioners. It was stated that these matters only come to his attention in December 2009, whereupon he resigned from his employment and then set in train a series of claims under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000. It is these claims which form the background to the present judicial review proceedings. Mr. Hussein disputed these allegations and said the employee had a work permit from July 2002 to July 2003, but did not have one thereafter. He states that the employee was fully aware that he was required to hold a valid work permit as he sought to avail of the amnesty for undocumented workers in 2009. The employee contended that he relied completely on his cousin (the employer - Mr Hussein) in relation to both his employment permit, taxes and passport. Following the finding against the employer in the labour court it was referred to the Circuit Court when the employer failed to comply with the award. This brings us to the current position and the decision of Justice Hogan. In his determination Justice Hogan states "the point now raised is so central and so vitally affects the integrity of the Labour Court decisions (and, indeed, the Circuit Court whose enforcement jurisdiction has been so lately invoked) that it would not be appropriate to find against Mr. Hussein on grounds of delay or unsatisfactory behaviour in the absence of irremediable prejudice to a notice party such as Mr. Younis such as might have occurred if the compensation had already been paid to him and he had altered his position as a result" He is referring to the employees failure to hold a work permit and the conclusion therefore that their employment was illegal and as such is deprived of any benefit of employment legislation. Justice Hogan goes on to state "At the heart of the applicant’s case is that Mr. Younis has no standing to invoke the protection afforded by the employment legislation of this State, since by definition any contract of employment was an illegal one in the absence of an employment permit. So far as illegal contracts are concerned, the courts must, where possible, avoid applying too severe an approach, still less some formalistic approach which assumes that the enforcement of an illegal contract always presents insuperable public policy objections: see, e.g., the comments of Geoghegan J. in Downing v. O’Flynn [2000] 4 I.R. 383, 399. In some cases, however, the court has no alternative but to hold that the contract in question is rendered substantively illegal by statute. This, as we shall see, is one such case" Paragraph 17 then goes on to conclusively state that the employees contract is illegal and as a result courts or bodies such as the Labour Court cannot give appropriate remedies to parties as if the contract was perfectly lawful. " the present case the Oireachtas has declared that a contract of employment involving a non-national is substantively illegal in the absence of the appropriate employment permit, so that, accordingly, a contract of this kind has been expressly prohibited by statute. It would scarcely be a sensible construction of the Act of 2003 if it is admitted that such a contract is expressly prohibited by statute and yet the courts permitted administrative bodies such as the Labour Court to give appropriate remedies to the parties as if the contract were perfectly lawful. Specifically, in view of the fact that the s. 2(4) due diligence defence is unavailable to an employee, one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantive illegality" Justice Hogan then states "neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract which is substantively illegal in this fashion. For those reasons, the decisions of the Labour Court cannot be allowed to stand." Impact This case will impact on the general employment relationship between employers and migrant workers and Justice Hogan made special reference to this in paragraphs 14 & 15. In paragraph 14 he laid out the text of the Employment Permits Act 2003 section 2(1) - (4) which prohibits a non-national from being employed without a valid work permit, and breach of this is a criminal offence. However he continues to say "It is, moreover, clear from the terms of s. 2(4) that while an employer can defend criminal proceedings on the ground that he or she took all reasonable steps to secure compliance with the 2003 Act, no such defence is available to the employee. Applying standard principles of statutory interpretation, therefore, one is compelled to hold that the s. 2(1) creates an absolute offence so far as an employee is concerned, since the very structure of the section in general – and s. 2(4) in particular - is consistent only with the conclusion that the Oireachtas intended that a due diligence-style defence of an endeavour to comply with the work permits requirement would be available to the employer only and not to the employee" As such an employer can defend themselves against criminal proceedings on the ground they took all reasonable steps and no such defence is available to an employee. It may also see a remodelling of the 2003 Act as Justice Hogan made a pointed reference to the Employment Permits Act 2003 having no clause which may operate in favour of an employee who has been exploited to seek effective redress where a body can be satisfied that failure to seek an appropriate permit was not their fault. This case will no doubt be a talking point and impact on the employment relationship as it may see some employers look to exploit what is potentially a loop-hole in the current Act, and the Oireachtas must work quickly to remedy this to avoid further cases of exploitation similar to that experienced by Mr. Younis. It should be noted that Justice Hogan was emphatically clear in the determination that "If Mr. Younis' account is correct – and let it be recalled that both the Commissioner and the Labour Court found that it was - then he has been the victim of the most appalling exploitation in respect of which he has no effective recourse. (In fairness to Mr. Hussein, it should be pointed out that he was not legally represented at those hearings and it may be that a different picture would have emerged if he had been so represented.)"
