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High Court concludes migrant workers without work permits unable to avail of employment legislation

Date Published: 17-09-2012

The High Court has quashed a decision by the Labour Court that awarded a Pakistani national migrant worker, working in the State as a Tandoori chef since 2002, in excess of €90,000 against his employer for what was, if the Labour Court was correct in its findings, appalling exploitation in breach of employment legislation. Mr Younis, the migrant worker, maintained that he was required to work seven days a week with no holidays, that he was only paid pocket money in cash, and that his employer, and cousin, Mr Hussein failed to regularise his position with the relevant authorities.

Upon learning of his rights and entitlements from the Migrants’ Rights Centre in 2009, Mr Younis made complaints against his employer under the employment legislation. The Labour Court upheld a Rights’ Commissioner’s findings in respect of the claimed breaches, and awarded Mr Younis in excess of €90,000. The employer sought judicial review of the Labour Court’s decision on the basis that Mr Younis had no standing to bring his case because the employment contract was void.

The High Court stated that the legislation prohibits non-nationals such as Mr Younis from being employed without an employment permit, and that while an employer can rely on a ‘due diligence’ defence, no such defence is open to an employee. The Court held that Mr Younis had no standing to invoke the protection afforded by the legislation as his contract of employment was illegal in the absence of an employment permit, and that therefore the decision of the Labour Court could not be allowed to stand. The Court sent a copy of its decision to the Oireachtas so that it could give consideration to the legislation’s policy implications.

For more information:

See case summary Hussein v The Labour Court & Anor

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