Hussein v Labour Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 26 October 2012
• Neutral Citation: [2012] IEHC 599
• Court: High Court
• Date: 26 October 2012

[2012] IEHC 599

THE HIGH COURT

[No. 194 J.R./2012]

Hussein v Labour Court & Anor

BETWEEN/

AMJAD HUSSEIN

APPLICANT

AND

THE LABOUR COURT

RESPONDENT

AND

MOHAMMAD YOUNIS (No.2)

NOTICE PARTY

HUSSEIN v LABOUR COURT 2012 2 ILRM 508 2012 23 ELR 293 2012/17/5006 2012 IEHC 364

EMPLOYMENT PERMITS ACT 2003

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

ORGANISATION OF WORKING TIME ACT 1997

NATIONAL MINIMUM WAGE ACT 2000

JUDGE MAHON & ORS (MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS) v KEENA & KENNEDY (NO 2) 2010 1 IR 336 2009/38/9325 2009 IESC 78

MCILWRAITH v JUDGE FAWSITT & GILROY AUTOMATION LTD 1990 1 IR 343 1990 ILRM 1 1989/7/1937

O'CONNOR v JUDGE CARROLL 1999 2 IR 160 1998/28/11205

F (O) v JUDGE O'DONNELL & ORS 2010 1 ILRM 198 2009/21/5263 2009 IEHC 142

CONSTITUTION ART 34.5.1

RSC O.106 r5

CASEY v PRIVATE SECURITY APPEALS BOARD UNREP DUNNE 1.12.2009 2009/8/1906 2009 IEHC 547

PRACTICE AND PROCEDURE

Costs

Award in favour of notice party set aside - Whether appropriate to award costs against applicant or notice party - Whether respondent having quasi-immunity from costs order - F(O) v Judge O'Donnell [2009] IEHC 142, (Unrep, Ó Néill J, 27/3/2009); Casey v Private Security Appeals Board [2009] IEHC 547, (Unrep, Dunne J, 1/12/2009) and Hussein v Labour Court [2012] IEHC 364, (Unrep, Hogan J, 31/8/2012) considered - No order (2012/194JR - Hogan J - 26/10/2012) [2012] IEHC 599

Hussein v Labour Court

Facts: The Court had set aside a substantial award made by the Labour Court in favour of an individual, a Pakistani employee, in respect of whom an illegal contract of employment had been entered where no required work permit had been in existence. The Court considered the question of costs and whether there was a jurisdictional bar to the award of costs.

Held by Hogan J. that the Labour Court had to be regarded as enjoying quasi-immunity in respect of costs orders where there was no suggestion of impropriety. The Labour Court had been exercising quasi-judicial powers. The Court could not award the costs of judicial review.

1 1. In the aftermath of my judgment delivered on 31 ^st August, 2012, in Hussein v. Labour Court [2012] IEHC 364, I am now required to consider the questions of costs. It may be recalled that in that judgment I set aside a substantial award which had been made by the Labour Court in favour of Mr. Younis on the ground that the contract of employment between Mr. Hussein and Mr. Younis was substantively illegal by reason of the fact that the latter, a Pakistani national, lacked the requisite work permit in the manner required by the Employment Permits Act 2003 (as amended). Given that the contract of employment had been rendered illegal in that fashion, I concluded that neither the Rights Commissioner nor, by extension, the Labour Court had any jurisdiction under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, and the National Minimum Wage Act 2000, to entertain this claim for arrears of wages. It was for that fundamental reason that I held that I must accordingly quash the award which had been made in favour of Mr. Younis.

2 2. It is important also to stress that the Labour Court did not appear at the hearing before me, but simply wished to be heard on the question of costs. Counsel for the Labour Court, Mr. Jeffers, informed me at the outset that as his client considered that as it enjoyed what amounted to an immunity from costs orders in those cases where it does not participate at the hearing, it did not propose so participate in the present case. While accepting that cases of alleged impropriety fell into a different category - although nothing of the kind arose in the present case - he contended that the Court was in the same position as judges of the Circuit Court and the District Court. The Labour Court thus sought to avail of the quasi-immunity in question.

3 3. Mr. Hussein originally confined his costs application to seeking costs against Mr. Younis but he later extended the application in order to seek costs as against the Labour Court. Mr. Younis sought costs as against the Labour Court and Mr. Hussein. The Labour Court submitted that there should be no order for costs against it.

The position of Mr. Younis

4 4. I propose to commence this consideration of the costs question by examining the position of Mr. Younis. In strict law, he has lost his case and he should therefore be subject to a costs order. But this bears no relationship at all to the underlying merits - both legal and moral - of Mr. Younis' case. As I noted in my judgment, the Rights Commissioner found that Mr. Younis was the victim of appalling treatment in the workplace. I appreciate that Mr. Hussein has always disputed this and, in fairness to him, it should be acknowledged that (as I pointed out in my first judgment) he was not legally represented before the Rights Commissioner and it may that if he had been so represented a different picture would have emerged.

5 5. Nevertheless, given the findings which were made, it would simply add insult to injury if a costs order was made against Mr. Younis. The court has a discretion to depart from the standard costs order where there are special and unusual circumstances ( cf. the judgment of the Supreme Court in Mahon v. Keena (No. 2) [2009] IESC 78). In my judgment, these underlying facts as found by the Rights Commissioner constitute such a special circumstances and I would not accordingly countenance the making of any costs order against Mr. Younis.

6 6. Indeed, were the matter res integra, I would consider that Mr. Younis' case for costs against the Labour Court would be an exceptionally powerful one. If I believed that I had such a jurisdiction, I would undoubtedly exercise it in his favour. Consider the underlying facts. The State has welcomed this...