Hussein -v- The Labour Court & Anor, [2012] IEHC 364 (2012)

Docket Number:2012 194 JR
Party Name:Hussein, The Labour Court & Anor
Judge:Hogan J.
 
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THE HIGH COURT [2012 No. 194 J.R.]BETWEENAMJAD HUSSEINAPPLICANTANDTHE LABOUR COURT RESPONDENTANDMOHAMMAD YOUNIS NOTICE PARTYJUDGMENT of Mr. Justice Hogan delivered on 31st August, 20121. 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. 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. 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. 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...

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