The High Court set aside Labour Court decisions that had awarded a Pakistani worker more than €91,000 in compensation and back pay, ruling that the employment contract was illegal because he lacked the required work permit.
In a judgment delivered on 31 August 2012, Mr Justice Hogan held that the Rights Commissioner and Labour Court could not lawfully grant relief arising from such a contract. The case came before the court by way of judicial review brought by the employer, who challenged the Labour Court decisions. The court did not determine the worker’s underlying allegations afresh; it noted that the Commissioner and Labour Court had accepted his account.
The worker had complained that he was recruited by his second cousin, who operated at least one Pakistani restaurant in Ireland, and was made to work seven days a week for cash, without proper leave or breaks. He also alleged that his employment and tax position had not been regularised. The employer disputed those claims, saying the worker had a permit for a year from July 2002 and thereafter lived with him as an extended family member.
The worker filed complaints under employment information, working time and minimum wage legislation in April 2010. A Rights Commissioner found for him in March 2011. The Labour Court upheld those findings in two decisions in September 2011. The awards included €1,500 for employment documentation breaches, €5,000 for working time breaches and €86,132.42 in minimum wage back pay.
Justice Hogan reasoned that the Employment Permits Act 2003 prohibited non-national workers from working without a valid permit, and that the prohibition applied to both employee and employer. The Act provided an employer with a due diligence defence to a criminal charge, but no equivalent defence for the employee. He concluded that employment without a permit was substantively illegal and that, without a statutory provision preserving a right to employment remedies, the Labour Court could not treat the contract as lawful.
The judgment acknowledged that the result could leave a worker who had suffered serious exploitation without an effective remedy. The judge said that if the worker’s account was correct, the consequences were troubling, while noting that the employer had not been legally represented at the earlier hearings and a different picture might have emerged with representation.
The court directed that copies of the judgment be sent to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation so the Oireachtas could consider the law’s policy implications. The judgment does not record any further remedy for the worker.