Hussein v The Labour Court

• Jurisdiction: Ireland
• Judgment Date: 31 August 2012
• Date: 31 August 2012
• Docket Number: [2012 No. 194 JR]
• Court: High Court

Hussein v. The Labour Court

Amjad Hussein

Applicant

and

The Labour Court

Respondent

Muhammed Younis, Notice Party

[2012] IEHC 364,

[2012 No. 194 JR]

High Court

Employment law - Contract - Foreign national - Absence of employment permit -Legality of employment contract where no permit - Entitlement to claim relief under employment legislation on foot of such contract - Whether such employment contract substantively illegal - Whether employee having entitlement to claim relief on foot of such employment contract - Whether Labour Court or Rights Commissioner having entitlement to entertain claims on foot of such employment contract - Unfair Dismissals Act 1977 (No. 10), s. 8 - Terms of Employment (Information) Act 1994 (No. 5) - Organisation of Working Time Act 1997 (No. 20) - National Minimum Wage Act 2000 (No. 5) - Employment Permits Act 2003 (No. 7), s. 2.

Section 2 of the Employment Permits Act 2003, as inserted by s. 2 of the Employment Permits Act 2006, provides, inter alia, as follows:-

"(1) A foreign national shall not -

(a) enter the service of an employer in the State, or

(b) be in employment in the State, except in accordance with an employment permit … that is in force …

(2) A person shall not employ a foreign national in the State except in accordance with an employment permit … that is in force …

(3) A person who contravenes subsection (1) or (2)… shall be guilty of an offence …

(4) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention ofsubsection (2) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance withsubsection (2)."

The notice party was a foreign national who claimed to have been employed by the applicant from 2002 until 2009. The notice party did not have an employment permit after July, 2003. Upon resigning in 2009, the notice party made formal complaints against the applicant under the terms, inter alia, of the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000. The Rights Commissioner found for the notice party in respect of these complaints and directed the applicant pay to the notice party sums totallingcirca EUR91,000. The applicant did not pay these sums. The complaints were referred to the Labour Court. The Labour Court upheld the findings of the Rights Commissioner. The applicant who had not appeared at either hearing did not pay the sums. The notice party commenced Circuit Court enforcement proceedings. Before this matter was heard, the applicant applied for and was granted leave to seek by way of judicial review, inter alia, an order ofcertiorari of the determinations of the Labour Court. The applicant contended that the notice party had no standing to invoke the protection afforded by the employment legislation, since by definition the alleged contract of employment was an illegal one in the absence of the applicant having an employment permit.

Held by the High Court (Hogan J.), in granting the relief sought, 1, that so far as illegal contracts were concerned, the courts must, where possible, avoid applying too severe an approach, still less some formalistic approach which assumed that the enforcement of an illegal contract always presented insuperable public policy objections. In some cases, however, the court had no alternative but to hold that the contract in question was rendered substantively illegal by statute.

Downing v. O'Flynn [2000] 4 I.R. 383 applied.

2. That the general effect of the provisions of s. 2 of the Act of 2003 was that they prohibited a non-national from being employed without the appropriate employment permit. Applying standard principles of statutory interpretation, s. 2(1) of the Act of 2003 created an absolute offence for breaching this prohibition so far as an employee was concerned, since the very structure of the section in general - and s. 2(4) in particular - was 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.

• C.C. v. Ireland [2005] IESC 48, [2006] 4 I.R. 1applied.

3. That the fact that the Oireachtas must be taken to have intended that a non-national employee to whom the prohibition applied (i.e., non-EU and non-EEA nationals) automatically committed an offence if he or she did not have a work permit irrespective of the reasons for that failure necessarily had implications so far as the civil law was concerned, in that such a contract of employment must also be taken to be void. It was not a case of where there was some incidental illegality in the performance of the contract. It could not be regarded as a case where an illegality in the method of the payment of wages could be overlooked in the absence of evidence that the employees themselves had knowingly participated in the illegality.

• St. John Shipping Corporation v. Joseph Rank Ltd.[1957] 1 Q.B. 267 and Re Red Sail Frozen Foods Ltd.(In receivership) [2006] IEHC 328, [2007] 2 I.R. 361distinguished.

4. That the Oireachtas had declared that a contract of employment involving a non-national was substantially illegal in the absence of the appropriate employment permit so that, accordingly, a contract of this kind had been expressly prohibited by statute. In view of the fact that the s. 2(4) due diligence defence under the Act of 2003 was unavailable to an employee, the reasons for the employee's failure to secure a work permit were irrelevant to that substantive illegality.

5. That parties to a contract which produced illegality under a statute passed for the benefit of the public could not sue upon a contract unless the legislature had clearly given a right to sue. The Act of 2003 was enacted in the public interest and for the public benefit in order to regulate the employment market. There was no saving clause which might operate in favour of the employee by allowing him or her to seek effective redress where the administrative agency in question was satisfied that the failure to obtain an employment permit was not their personal fault.

Martin v. Galbraith, Ltd. [1942] I.R. 37 applied.

6. That the point raised as to whether or not the non-national notice party had standing to invoke the protection afforded by the employment legislation in circumstances where he was employed under a contract of employment in the absence of an employment permit was so central and so vitally affected the integrity of the Labour Court decisions (and the Circuit Court) that it would not be appropriate to find against the applicant on grounds of delay or unsatisfactory behaviour in the absence of irremediable prejudice to the...