Hussein v Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 31 August 2012
• Neutral Citation: [2012] IEHC 364
• Court: High Court
• Date: 31 August 2012

Hussein v Labour Court

BETWEEN

AMJAD HUSSEIN

APPLICANT

AND

THE LABOUR COURT

RESPONDENT

AND

MOHAMMAD YOUNIS

NOTICE PARTY

[2012] IEHC 364

[No. 194 J.R./2012]

THE HIGH COURT

Judicial Review - Employment - Migrant workers - Regulation of the labour market - Public policy - Exploitation in employment - Employment permit - Terms of Employment (Information) Act 1994 - Organisation of Working Time Act 1997 - National Minimum Wage Act 2000

Facts: The notice party was a Pakistani national, who worked for his cousin, the applicant, from September 2002 to December 2009. During the course of his employment, the notice party alleged he was subjected to consistent exploitation in that he was paid less than the national minimum wage, the hours he was compelled to work were excessive and the applicant failed to confirm his employment with the relevant public authorities. The notice party did not speak English and was unaware of the illegality of these circumstances until he visited a Migrants' Rights Centre in August 2009. He subsequently resigned his position in December 2009 and commenced his complaints.

A Rights Commissioner found in favour of the notice party for breaches of the Terms of the Employment (Information) Act 1994 (as amended), the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000. The applicant did not attend nor pay the directed sum so the matter was referred to the Labour Court where the applicant once again didn't attend and the Commissioner's ruling was upheld. The notice party subsequently commenced proceedings in the Circuit Court for payment of the award. At this point, the applicant applied and obtained leave to apply for judicial review on the basis that the notice party had no legal standing to invoke employment legislation protection and the decision of the Labour Court should be set aside as he only ever had a work permit between July 2002 and July 2003. The notice party in turn claimed he relied entirely on the applicant to obtain an employment permit for him.

Held by Hogan J that s. 2(1) to s. 2(4) of the Employment Permits Act 2003 clearly laid out that employment of a non-national without a relevant employment permit was illegal on both of the parts of the employer and employee. However, a defence of due diligence to comply with the work permits requirement could only possibly be invoked by an employer. As such, the notice party's contract of employment was automatically illegal and so, he had no locus standi.

Hogan J concluded by outlining his dissatisfaction that the state of the law had allowed the notice party's exploitation, assuming his account was correct, without permitting recourse. Doubting that the legislators had intended to leave a scenario like the present when the Employment Permits Act 2003 was enacted, Hogan J stated his intention to relay a copy of the decision to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation so that further consideration on the law could be given.

ORGANISATION OF WORKING TIME ACT 1997

NATIONAL MINIMUM WAGE ACT 2000

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 S3

EASTERN HEALTH BOARD v FARRELL 2000 1 ILRM 446 1999/11/2672

HILLARY v MIN FOR EDUCATION & ORS 2005 4 IR 333 2004/21/4944 2004 IEHC 121

DOWNING v O'FLYNN 2000 4 IR 383 2000/6/2081

EMPLOYMENT PERMITS ACT 2003 S2(1)

EMPLOYMENT PERMITS ACT 2003 S2(2)

EMPLOYMENT PERMITS ACT 2003 S2(3)

EMPLOYMENT PERMITS ACT 2003 S2(4)

EMPLOYMENT PERMITS ACT 2006 S3

C (C) v IRELAND & ORS 2006 4 IR 1

ST JOHN SHIPPING CORP v JOSEPH RANK LTD 1957 1 QB 267 1956 3 WLR 870 1956 3 AER 683

RED SAIL FROZEN FOODS LTD & ORS (IN RECEIVERSHIP), IN RE 2007 2 IR 361 2006/51/10956 2006 IEHC 328

MARTIN v MESSRS GALBRAITH LTD 1942 IR 37 1942 76 ILTR 94

SHOPS (CONDITIONS OF EMPLOYMENT) ACT 1938 S20

UNFAIR DISMISSALS ACT 1977 S8(11)

UNFAIR DISMISSALS (AMDT) ACT 1993 S7(D)

1 1. The treatment of migrant workers is a vexed one which poses considerable difficulties with regard to the regulation of the labour market and the enforcement of public policy. 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.

2 2. Both the applicant and the notice party are Pakistani nationals and are in fact second cousins. The applicant operates at least one Pakistani restaurant in Ireland and Mr. Younis, the notice party, claims that he was recruited by the applicant, Mr. Hussein, in September 2002 to work here as a tandoori chef when the latter returned to Pakistan for a holiday. Although Mr. Younis arrived in Ireland in the summer of 2002, he does not speak English and he seems to have had no real contact with the Irish community. 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. Mr. Younis 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 is averred on his behalf 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.

3 3. Mr. Hussein strongly disputes these contentions. He says that Mr. Younis had a work permit under the Employment Permits Act 2003 ("the Act of 2003") for the period between July 2002 and July 2003, but that he never had a work permit after that date. Mr. Hussein maintains that Mr. Younis thereafter effectively lived with him as a member of his extended family. He also says that Mr. Younis was fully aware of the necessity to have a work permit and that this came to light when the latter sought unsuccessfully to avail of amnesty for undocumented workers operated by the Department of Enterprise and Employment in December 2009.

4 4. For his part, Mr. Younis says that that he resided with other employees in a form of work hostel provided by the applicant in Leixlip. He further contends that he relied completely on his cousin, Mr. Hussein, in relation to both his employment permit, taxes and passport. By way of example, he claims that when his Pakistani passport expired in 2006, Mr. Hussein retained both his new and old passport, saying that he needed both documents for the purposes of obtaining a work permit. Mr. Younis says that he only became aware of the true position when Mr. Hussein's wife (who speaks English) brought him to the Migrants' Rights Centre in August 2009 whereupon his rights and entitlements were explained to him. This set in train a series of events which culminated in his resignation from employment and the making of these complaints.

The Labour Court determination

5 5. At all events, Mr. Younis made a formal complaint against Mr. Hussein on 30 ^th April 2010 under the terms of the Terms of the Employment (Information) Act 1994 (as amended), the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000.A Rights Commissioner initially found for Mr. Younis in respect of all three complaints by decision of 31 ^st March 2011. Mr. Hussein was not represented at that hearing and he did not pay the sums which the Commissioner had directed him to pay.

6 6. The complaints were then referred to the Labour Court by Mr. Younis on 24 ^th June 2011. The findings (and, by implication, the reasoning) of the Commissioner were then upheld in two separate decisions dated 7 ^th September 2011 and 9 ^th September 2011.

7 7. So far as the 1994 Act is concerned, the Commissioner had found that Mr. Hussein had not been provided "with any formal documentation in relation to his employment over an extended period of time" as required by s. 3 of the Act. Mr. Hussein was awarded €1,500 compensation to be payable for breaches of that...