Access to Justice and the Impact of Delay on Migrant Workers in Ireland

• Author: Elaine Dewhurst
• Position: BCL (Hons) (NUI), PhD (UCC), Parliamentary and Law Reform Executive at the Law Society of Ireland
• Pages: 41-55

41

(2009) COLR

ACCESS TO JUSTICE AND THE IMPACT OF DELAY ON MIGRANT

WORKERS IN IRELAND

Elaine Dewhurst *

A INTRODUCTION

An essential characteristic of any employment dispute resolution procedure is the

assurance that the process will guarantee an adequate remedy to the affected party. The

current structures of employment dispute resolution in Ireland provide for the remedies of

compensation, reinstatement and reengagement, all of which could be considered to be

adequate remedies for an afflicted worker.

However, the substantial delays in the employment dispute resolution procedures

in Ireland has meant that many migrant workers,1 whether from the EU or third countries,

find that the remedies which they can be offered on the determination of their dispute are

substantially reduced. As third country national migrant workers depend on the existence

of the employment permit for their permission to remain in the State, the termination of

their employment contract, and as a consequence their employment permit, inevitably

means the termination of their residence in Ireland. Similarly, EU migrant workers also

find that the termination of their employment contract can often signal the end of their

stay in Ireland should they be unable to find alternative work. Due to the delay in hearing

their case before the tribunals and other dispute resolution bodies and the lack of social

welfare payments due to the habitual residence rule,2 many migrant workers find that

they will have returned to their sending state before the determination of the hearing and

as such the only available remedy open to the tribunal is that of compensation.

This article explores some solutions to this particular problem in an effort to

restore the concept of an adequate remedy back into the employment dispute resolution

process. The article will examine the possibility of introducing interim measures to

enable the migrant worker to remain in the State until the final hearing of their case and

to ensure that other remedies are available to them. This is relevant to the situation of all

migrant workers. However, the situation of third country nationals is more pressing in

this context and so the article will also explore the benefits of bridging visas for such

* BCL (Hons) (NUI), PhD (UCC), Parliamentary and Law Reform Executive at the Law Society of Ireland.

1 In this article, a migrant worker is defined as any non-national who is in Ireland with the intention of

partaking in employment. This includes EU, EEA (European Economic Area) and Swiss nationals,

accession country nationals and third country nationals who are in Ireland on working permits such as

employment permits, green card permits, intra-company transfer schemes, spousal/dependant permits and

graduate schemes.

2 Under the habitual residence rule, the Department of Social and Family Affairs are not liable to pay any

social welfare entitlements to a person unless they have been resident in the State in the past and can show

a prospect and expectation of residence in the future. The Social Welfare (Miscellaneous Provisions) Act

2004 section 17 and Schedule 1 which inserts section 208A into the Social Welfare (Consolidation) Act

1993 provides that a person must be present in the State or in the common travel area in the past two years

in order to be considered habitually resident and entitled to certain benefits.