Hussein v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice John Murray
• Judgment Date: 25 June 2015
• Neutral Citation: [2015] IESC 58
• Court: Supreme Court
• Docket Number: [S.C. Nos. 594 & 606 of 2012],[Appeal Nos. 594/12 & 606/12]
• Date: 25 June 2015

Between:

Amjad Hussein

Applicant/Respondent

and

The Labour Court

Respondent/Respondent

And by Order:

Mohammad Younis

Notice Party/Appellant

[2015] IESC 58

Murray J.

Hardiman J.

MacMenamin J.

[Appeal Nos. 594/12 & 606/12]

THE SUPREME COURT

Terms of employment – Organisation of working time – National minimum wage – Applicant seeking to set aside decisions of the respondent – Whether respondent acted pursuant to and in accordance with its jurisdiction

Facts: The applicant, Mr Hussein, is a national of Pakistan as is the notice party, Mr Younis. The applicant operates a restaurant in Ireland. In September 2002 the applicant recruited the notice party to come and work in Dublin as a chef. The notice party contended that he was exploited by the applicant when he arrived in Ireland. He resigned from his employment in December 2009. In April 2010, the notice party brought three complaints before the Rights Commissioner: 1) that he never received written terms and conditions of employment as provided by s.3 of the Terms of Employment (Information) Act 1994; 2) that the applicant was in breach of the provisions of the Organisation of Working Time Act 1997 by failing to provide annual leave entitlements, to provide holidays entitlements, his Sunday premium breaks or any proper breaks and by requiring the notice party to work in excess of 48 hours per week; 3) that the respondent failed to pay the national minimum wage, claimed under the National Minimum Wage Act 2000. In March 2011, the Rights Commissioner made a decision in favour of the notice party on all three claims and made monetary awards to the notice party against the applicant. The applicant did not pay to the notice party the sums which the Commissioner had directed should be paid. The notice party exercised his right to bring the issue of enforcing the award of the Commissioner before the respondent, the Labour Court, in respect of each claim namely, pursuant to s.28(8) of the 1997 Act and s.31(1) of the 2000 Act. In September 2011, the Labour Court determining that the appellant pay to the notice party the sums of €5,000 and €86,134.42 respectively. In March 2012, the applicant obtained from the High Court leave to bring judicial review proceedings in respect of the two decisions of the Labour Court which were subsequently set aside by the High Court. The basic premise and anchor point of the applicant”s case for the setting aside of the Labour Court decisions was that the earlier decision of the Commissioner was tainted by illegality in making an award on foot of an employer/employee relationship which was unlawful. The same basic point was made in relation to an alleged want of jurisdiction by the Commissioner in respect of the award made pursuant to the 1997 Act. The notice party appealed to the Supreme Court against the order of the High Court, submitting that the applicant sought to quash the decision of the Commissioner although he did not appeal the decision within the time available to him, and did not seek judicial review of that decision; he could not, in any event, do that because it was out of time. The essence of the submission of the notice party in this respect was that the Labour Court, in making the two decisions which it did, acted entirely and strictly within the ambit of its powers.

Held by Murray J that the decisions of the Labour Court were not concerned with the merits or lawfulness of the decision of the Rights Commissioner. Murray J held that once the Labour Court had objective evidence of a decision and Determination, and evidence that the employer had not paid the amount of the award in each case, it was bound to make the decisions which it did pursuant to s.28(8) of the 1997 Act and s.31(1) of the 2003 Act; it was not permitted to act otherwise under those sections. Murray J held that the Labour Court clearly acted pursuant to and in accordance with its jurisdiction. Since the Labour Court exercised its powers properly and within the parameters defined by the sections in question, Murray J held that there was no basis for setting aside its two decisions by way of judicial review.

Murray J held that he would allow the appeal and set aside the order of the High Court.

Appeal allowed.

JUDGMENT of Mr. Justice John Murray delivered the 25th day of June, 2015

1 This is an appeal against the order of the High Court which, by way of judicial review, set aside two decisions of the respondent, the Labour Court. Those two decisions are respectively:

(a) A decision dated 7th September, 2011 pursuant to s.28(8) of the Organisation of Working Time Act, 1997, determining that the employer, who is the appellant in this case, pay to the above named notice party the sum of €5,000.

(b) A decision dated 9th September, 2011 of the said Labour Court, pursuant to s.31(1) of the National Minimum Wage Act, 2000, determining that the appellant pay to the notice party the sum of €86,134.42.

2 A curious feature of these proceedings is that in the judicial review neither of the decisions of the Labour Court are impugned for the manner, as such, in which it exercised its statutory powers. It is rather that those decisions are impugned by reason of an alleged fundamental frailty in an earlier adjudication of the Rights Commissioner under the respective Acts, although that earlier adjudication is not the subject of judicial review. This is a crucial element in the consideration of the issues in this appeal. At this point I think it would be convenient to set out the two statutory provisions under which the Labour Court made the two decisions which are now impugned.

Section 28(8) of the Organisation of Working Time Act, 1997, as amended by s.19 of the Protection of Employees Act, 2003

‘ (8) Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.’

Section 31(1) of the National Minimum Wage Act, 2000

‘ (1) Where a decision of a rights commissioner in relation to a dispute under this Act has not been fully complied with by the employer concerned and the time for bringing an appeal against the decision has expired and no such appeal has been brought or if such an appeal has been brought it has been abandoned, the employee concerned may bring the dispute before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision of the rights commissioner.’

Section 28(8) of the Organisation of Working Time Act, 1997, as amended by s.19 of the Protection of Employees Act, 2003

Section 31(1) of the National Minimum Wage Act, 2000

Background Facts and Circumstances

3 According to the High Court judgment the applicant is a national of Pakistan as is the notice party Mr. Younis. The applicant operates at least one restaurant with Pakistani or Asian cuisine in Ireland. The applicant and the notice party are second cousins. In September 2002 the applicant had returned to Pakistan on holidays and the claim of the notice party, which he made before the Rights Commissioner, is that he was then recruited by the applicant to come and work in Dublin as a Tandoori chef. The notice party arrived in Ireland in the summer of 2002. He does not speak English and has had no real contact with the Irish community. The claim which he brought before the Rights Commissioner arose out of his contention that he was exploited by his cousin when he arrived in Ireland. On his account he was required to work seven days a week with no holidays (save for one month in September 2009) which was unpaid. He was paid what amounted to pocket money in cash. Being dissatisfied with his position it appears that he obtained advice from an immigrant advice body and resigned from his employment in December, 2009. He then set in train a series of claims pursuant to the Terms of Employment (Information) Act, 1994, the Organisation of Working Time Act, 1997 and the National Minimum Wage Act, 2000. As appears from the Determination of the Rights Commissioner, referred to below, his claims were, inter alia, based on the fact that he would work eleven hours per day, and was not in receipt of scheduled rest breaks. From February, 2005 some two and a half years into his period of employment he worked until midnight culminating in an eight hour day. The claim was based also on the fact that he worked seven days a week without one day off and the only day off he received was the 25th December when the restaurant was closed. He did not receive any annual leave with the exception of one month in September, 2009, which was unpaid. He also complained about poor accommodation provided by the applicant.

4 For his part, the applicant has always contested the facts as stated by the notice party. It was his claim that the notice party worked for him with a work permit under the relevant legislation for the period between July 2002 and July 2003 but that he had never obtained a work permit for him after that date. The applicant maintained that the notice party thereafter effectively worked with him as a member of his extended family. Before the Rights Commissioner he claimed that the notice party was working in the restaurant as a member of the family by helping out in the kitchen and that he had no specific job. He told the Rights Commissioner...