The applicant, Mr Hussein, and the notice party, Mr Younis are Pakistani nationals and cousins. In 2002, Mr Hussein, who operates a restaurant in Ireland, recruited his cousin to work as a Tandoori chef. Mr Younis maintained that he was required to work seven days a week with no holidays, that he was paid what amounted to pocket money in cash, and that Mr Hussein failed to regularise his position with the relevant authorities.
Upon learning his rights and entitlements from the Migrants’ Rights Centre in 2009, Mr Younis made formal complaints against Mr Hussein under the terms of Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, and the National Minimum Wage Act 2000. In 2011, a Rights Commissioner found for Mr Younis in respect of all three complaints. Later in 2011, Mr Younis referred the complaints to the Labour Court, which upheld the Commissioner’s findings. The Labour Court ordered that Mr Hussein pay Mr Younis €1,500 for breaches of the 1994 Act; €5,000 for breaches of the 1997 Act; and €86,132.42 in respect of back pay under the 2000 Act.
The High Court (Hedigan J) granted Mr Hussein leave to apply for judicial review of the Labour Court’s decision on the ground, essentially, that Mr Younis had no standing to invoke the protection afforded by the legislation since his contract of employment, in the absence of an employment permit, was illegal.
The High Court stated that the relevant legislative provisions, s. 2(1) to s. 2(4) of the Employment Permits Act 2003, prohibit a non-national from being employed without the appropriate employment permit. The Court stated that, critically, the prohibition applies to both employer and employee, but that while a due diligence style defence is open to an employer under s. 2(4), s. 2(1) creates an absolute offence for an employee, and that the reasons for an employee’s failure to secure a work permit are irrelevant to the substantive illegality of not having a work permit.
The Court held that neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract that is substantively illegal for want of a work permit. Thus, the decision of the Labour Court could not be allowed to stand.
The Court stated that if Mr Younis’s account, which the Labour Court accepted, is correct, he has been the victim of the most appalling exploitation in respect of which he has no effective recourse, and that it may not have been intended by the Oireachtas that undocumented migrant workers should be deprived of the benefit of all employment legislation, even where they are not responsible for their unlawful status. The Court sent a copy of its decision to, inter alia, the Oireachtas and the Minister for Jobs, Enterprise and Innovation so that consideration could be given to the policy implications of the 2003 Act.