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Hussein v Labour Court

Respondent/Defendant: The Labour Court
Citation/s: [2015] IESC 58
Nature of Proceedings: Judicial Review
Court/s: Supreme Court
Judgment Date/s: 25 June 2015
Judge: Supreme Court (Murray, Hardiman and MacMenamin JJ.)
Category:Employment
Keywords:Employee; Employer; Employment; Employment (Illegal); Employment of LEGALLY resident third-country national (Illegal); Migrant Worker; Illegality; Rights Commissioner; Award; Enforcement
URL: http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/67b523d012e20c[...]
Geographical Focus:Ireland

Notice Party: Mohammad Younis

Facts:
The applicant was a restaurateur in Dublin, who employed his relative, the notice party, to carry out work in his restaurant pursuant to a contract of employment. Both of them were Pakistani nationals. The notice party brought claims against the applicant under inter alia the Organisation of Working Time Act 1995 and the National Minimum Wage Act 2000, alleging various breaches thereof. A rights commissioner decided that the claims were made out and awarded him approximately € 92,000.00 compensation in respect thereof. The applicant was notified of that decision but did not appeal it nor judicially review it. He failed to pay the notice party the sums due, whereupon the notice party decided to enforce the awards under, respectively, s. 28(8) and s. 31(1) of aforementioned Acts in the Labour Court. Those provisions entitled the Labour Court to enforce a decision of a rights commissioner where it had not been appealed or complied with. It accordingly directed enforcement in the circumstances.

The applicant then sought judicial review of the Labour Court’s decisions. He was successful before the High Court (Hogan J.), which  quashed them. It did so having found that the notice party did not have an employment permit in respect of the work being done for the applicant, in contravention of the Employment Permits Act 2003, as amended, and that the contract of employment between him and the applicant was therefore illegal. It concluded that neither the rights commissioner nor the Labour Court had jurisdiction to entertain an application for the relief sought by the notice party in respect of such a contract.

The notice party appealed to the Supreme Court (Murray, Hardiman and MacMenamin JJ.) which allowed the appeal.

Reasoning:
The Supreme Court noted that, under the aforementioned legislation, the Labour Court’s function was limited to establishing whether there was an existing decision of the rights commissioner in favour of the notice party; that the applicant had not appealed and that the time for doing so had expired; and that the applicant had not complied with the decision of the rights commissioner. The Labour Court had no jurisdiction to review the decisions of the rights commissioner and, once it was satisfied as to the existence of the objective elements referred to, it was bound to determine that the applicant pay the sums due to the notice party.

The Supreme Court noted that the High Court had made a finding of fact that the notice party did not have an employment permit for at least most of the period when he worked for the applicant and that he was therefore precluded from making claims against him before the rights commissioner, and that the Labour Court had adopted the reasoning of the rights commissioner in making its decisions. The Supreme Court held the High Court to have erred in both respects: first, because it was not open to the High Court in judicial review to make a new finding of fact on the merits; and, secondly, because it was not within the statutory function of the Labour Court under the relevant legislation to consider or make any finding of fact concerning the merits of the rights commissioner’s decision. The Supreme Court noted that the Labour Court had not made any finding of fact relating to the merits of the claim before the rights commissioner, least of all any finding related to the existence of a work permit. It held that, in setting aside its decisions, the High Court had wrongly allowed the applicant to impugn unchallenged decisions of the rights commissioner.

The Supreme Court pointed out that if the applicant had been dissatisfied with findings of fact in the decisions of the rights commissioner or considered that he had erred in law in his decisions, he could have appealed them under the legislation to the Labour Court (and thereafter on a point of law to the High Court). In such a situation, the Labour Court would have had jurisdiction to hear the matter on its merits as to both fact and law. The applicant had not done that. The Supreme Court therefore rejected his argument that he was entitled to relief ex debito justitiae, i.e. as of right. It distinguished the applicant’s reliance on the case of State (Vozza) v. O Floinn [1957] IR 227, pointing out that in that case, the court was concerned with a criminal conviction and that the applicant had sought certiorari by way of judicial review of the convictions recorded at first instance in the District Court and, on appeal, in the Circuit Court.

Finally, the Supreme Court noted in passing that, given the multiplicity of regulatory measures in a modern economy concerning employment relationships and the supply of goods and services, the question of the circumstances in which some form of illegality in a contractual relationship might be considered a ground for not enforcing it, was a complex one. It indicated that traditional judicial dicta on the point might have to be reviewed or nuanced in the light of the modern regulatory environment, and applied with the principle of proportionality in mind.

Decision:
The Supreme Court therefore allowed the appeal of the notice party, allowing the decisions of the Labour Court to stand.

Principles:

Where the Labour Court directs enforcement of a decision of a rights commissioner under such legislation as s. 28(8) of the Organisation of Working Time Act 1997, as amended, or s. 31(1) of the National Minimum Wage Act 2000, as amended, it is not open to the subject of such a direction to seek judicial review of it by mounting a collateral attack on the validity of the decision of the rights commissioner upon which it is based.

Should such a person be aggrieved with a decision of the rights commissioner, the correct procedure is to appeal it to the relevant forum or to seek judicial review of it.

It is not open to the High Court in judicial review to make a new finding of fact on the merits for the purpose of determining whether the original decision was right or wrong or should be upheld.


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