It has been reported in the Irish Times today that the High Court has quashed a €92,000 award made to a Pakistani chef which had been the subject of much media attention after the Labour Court judgement of 9th September 2011.
An original Rights Commissioner decision No. r-095000-mw-10/MMG of 31st March 2011 originally found in favour of M. Muhammad Younis C/O Migrant Rights Centre and a complaint was subsequently made to the Labour Court for implementation of the decision. The Labour Court directed Mr. Younis’s employer to pay him €86,134.42.
In overturning the award, Mr Justice Gerard Hogan said his ruling “gave him little satisfaction” and that a copy of the decision would be furnished to various bodies including the Minister for Employment so the Oireachtas might consider the consequences of his decision on existing employment legislation.
Mr Justice Hogan held that the Labour Court could not lawfully have awarded the money, most of it was for back pay, for breach of rights to chef Mohammad Younis in respect of an employment contract that was substantively illegal.
Mr Justice Hogan said Mr Hussein contended that Mr Younis had no standing to invoke the protection afforded by employment legislation since any contract of employment was an illegal one in the absence of an employment permit which he did not have. Mr. Hogan stated that the Labour Court could not lawfully entertain an application for relief in respect of an employment contract that was substantively illegal and for this reason its decisions could not be allowed to stand.
The ruling was described by Siobhan O’Donoghue, of the Migrant Rights Centre Ireland, as devastating for all undocumented migrants and called for the Government to urgently address the problem found to exist with the Employment Permits Act.
Mr Justice Hogan stated that if Mr Younis’ account was correct, and the Labour Court had found that it was, then he had been the victim of the “most appalling exploitation” in respect of which he had no effective recourse.
It is reported that Justice Hogan went on to note:
“While I am bound to apply the policy as articulated by the Oireachtas via the 2003 Act, there must be some concern that this legislation will produce, and perhaps has produced, consequences which were not foreseen or envisaged,” he said.
It might not have been intended by the Oireachtas that undocumented migrant workers, not least a vulnerable one such as Mr Younis, should be effectively deprived of the benefit of all employment legislation by virtue of their illegal status.
While fully respecting the divisions which must necessarily exist between the legislative and judicial branches, a healthy dialogue between them could only serve the public interest.
The judge said the treatment of migrant workers was a vexed one which posed considerable difficulties with regard to the regulation of the labour market and the enforcement of public policy.The judge said the nature of the legislator’s dilemma was well illustrated by the facts in the case before him.