Migrant Workers - Younis case update

I have previously blogged about the Muhammad Younis case.

In a surprising development yesterday, the Supreme Court upheld Mr Younis's appeal which means that he is now entitled to his award of more than €91,000 (see Irish Times report here). 

As Liam Thornton explains on humanrights.ie, Mr Younis won on the grounds that the High Court had exceeded its jurisdiction in reviewing the merits of the case.

The full Supreme Court decision is available here.  The decision was written by Murray J. (Hardiman J. and Mac Menamin J. concurring).  Mr Younis was supported in his case by the Migrant Rights Centre of Ireland.  Amnesty International made a submission as amicus curiae.

The Supreme Court's views about illegality and employment contracts

While the Supreme Court did not deliver a decision on the merits of the case, it did make strong statements about illegality and employment contracts.  These statements are not a binding part of the case (they are obiter dicta) but they still carry persuasive weight  and may influence future cases. 

At para. 52, the court states: "Traditional judicial dicta, in the older cases in particular, may have to be reviewed or nuanced in the light of the modern regulatory environment, and applied with the principle of proportionality in mind."  (see the fuller quote in Liam's post).

Murray J. continued (para.53):

I would, however, add, even though it is entirely hypothetical, that if the subject matter of the liability to be enforced involved something which was inherently immoral or inherently against the public interests, such as an agreement to rob or to distribute the proceeds of a robbery, then the issue of illegality and public policy would arise from a different perspective. Obviously, that is not the case and unlikely to be the kind of thing which would be attributed to a Rights Commissioner by statute to decide. In this case one is dealing with an inherently lawful subject matter, namely, the relationship of employer and employee, a relationship which the Rights Commissioner, in his Determination, found to exist and give rise to a liability of the applicant. Again, there was no appeal or judicial review of that decision.

So the court is saying firstly that older cases about illegality (which Hogan J. had relied on in the High Court) may need to be reconsidered and secondly that contracts of employment are normally inherently lawful; they are very different from a robbery contract.  The context for the second point is important as it seems to suggest that Judicial Review might be available for a case where a contract was of an inherently immoral nature, but not in the case of an inherently lawful employment contract.  This statement does not preclude further actions concerning illegality of employment contracts provided those actions take forms other than Judicial Review of enforcement proceedings.

The technical issue on which the appeal succeeded

With the benefit of hindsight, it is strange that the case got this far without this technical point succeeding.  To explain the point briefly:  A Rights Commissioner decision was made to award compensation to Mr Younis.  This decision was not appealed or Judicially Reviewed (there appear to have been delays and the time limits are short).  Mr Younis then brought enforcement proceedings (not an appeal) to the Labour Court.  The employer (Mr Hussein) sought judicial review in the High Court of the enforcement decision.  The High Court reviewed the merits of the case, based on the perceived absence of a work permit (although there was not a finding of fact by the Rights Commissioner or Labour Court on this issue), and quashed the Labour Court decision.  The Supreme Court held that the High Court did not have jurisdiction in a judicial review of an enforcement decision to review the merits of the case. 

The lessons for the legal community are clear:
(1) Watch out for time limits; if you do not abide by a time limit for an appeal or judicial review you may be left without a remedy.  Some time limits are very short, e.g. six months for many employment law matters. 
(2) Scrutinise the jurisdiction of a court carefully and revisit the issue of the court's jurisdiction constantly.  Even if the High Court decides the case as if it has jurisdiction, the issue can be revisited in the Supreme Court.

See further:
Migrant Rights Centre of Ireland press release

Video - evidence to Oireachtas Committee on Employment Permits:

http://www.oireachtas.ie/viewdoc.asp?DocID=26613

(Go to 1:26:47)

School Admissions and the Equal Status Act

I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity. 

The earlier stages  are as follows:

• Equality Tribunal - DEC-S2010-056
• Teehan J., Circuit Court - [2011] IECC 1
• McCarthy J., High Court, 3 February 2012 - http://tinyurl.com/stokes-HC 

Commentary on the High Court stage:

• Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
• Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
• Page at Northern/Irish Feminist Judgments Project 

 I previously posted on travellers in County Clare and the Equal Status Act.

Update on Migrant Workers and Employment Law

Muhammad Younis.  Picture by RTE.  

Further update, June 2015:

The Supreme Court upheld Mr Younis's appeal


In 2012, I blogged about the important decision of Hussein v The Labour Court [2012] IEHC 364.  There have been developments recently which have led me to update this post as follows.  The developments are:

• Enactment of the Employment Permits (Amendment) Act 2014 - see end of blog post below.
• The UK Supreme Court decision in Hounga v Allen - see the fourth bullet below.

Here's the revised blog post in full: 

In a very important decision in 2012, Hussein v The Labour Court [2012] IEHC 364, Hogan J. found that a migrant worker (Mr Muhammad Younis) who had been exploited by his employer could not claim under the working time legislation, minimum wage legislation and the Terms of Employment (Information) legislation.  See news reports at Irish Times and RTE websites.

Liam Thornton has an excellent post over at humanrights.ie summarising the issues, particularly focusing on the international human rights dimension of the case.

Some additional points which have struck me are as follows:

• Hogan J. says at para. 19 that the Employment Permits Act 2003 contains no saving clause such as obtains in the case of unfair dismissals.  However, the National Minimum Wage Act 2000 does contain a saving clause at s.40.  While it is likely that even if he had referred to this section, he would have reached the same conclusion, it is surprising that he does not explicitly address it.  
• Hogan J. does not refer explicitly to the significant Irish employment law case of Lewis v Squash Ireland [1983] ILRM 363.  In that case, the Tribunal stated: "It is public policy that the Courts and this Tribunal should not lend themselves to the enforcement of contracts, either illegal on their face or in which the intended performance of obligations thereunder was illegal to the knowledge of the party seeking to enforce the contract" (emphasis added).  Hogan J. could have explored whether he agreed with such a statement of public policy by the EAT, rather than relying entirely on court decisions.  While of course the courts have superior authority to the tribunals, they have also recognised the specialist expertise of such tribunals in the past.
• Hogan J. also does not refer to Dubyna v Hourican Hygiene  (2005) UD 781/2004, another EAT case in which it was found that a contract in breach of the Employment Permits Act 2003 was enforceable where the employee was unaware of the breach.  Admittedly, the circumstances were quite different but nonetheless it is a more relevant decision than some of those cited in the High Court decision. 
• As far as I can see, the only English case referred to is from 1957.  There is no reference to the recent Court of Appeal case of Hounga v Allen [2012] EWCA Civ 609 which involved breach of work permits legislation.  While the court did not permit the claim in that case, it allowed for the possibility that in some cases an employee might not be an active participant in an illegality, but instead acquiesce in the state of affairs, in which case she might still claim.  (See Laurie Anstis posting on Daniel Barnett blog here.)  [Update in 2014:  The UK Supreme Court has upheld the appeal against the Court of Appeal decision - Hounga v Allen [2014] UKSC 47 - See Vanessa James posting on Daniel Barnett blog here and Chris Monaghan, 'Hounga v. Allen at the Supreme Court: The defence of illegality in race discrimination cases and the competing public interest in preventing the exploitation of illegal immigrants' (2015) International Journal of Discrimination and the Law. ]
• I am not entirely comfortable with the idea of the High Court posting copies of its decisions to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation.  I agree that a judge may highlight a possible anomaly in the law, or possible unintended consequences of legislation, and even state that the law should be changed (as happened in the X. case).  But it is unnecessary and perhaps could be misinterpreted for the judge to post the decision to these three people.   They are all surely aware of the decision, as they are aware of all court decisions.  Perhaps I am splitting hairs here?  

[Further Update in 2014 - The Employment Permits (Amendment) Act 2014 will allow a migrant worker in Mr Younis's situation to bring a civil action seeking compensation for work done.  The Act will come into force on a date specified by the Minister. The new Act was welcomed by Migrant Rights Centre Ireland here. However, as the Centre notes, much more needs to be done.  From an employment law perspective, it is unclear to what extent a migrant worker without a work permit could bring an action other than an action seeking compensation for work done. ]  

Further update, June 2015: 
The Supreme Court upheld Mr Younis's appeal

Migrant worker case in the High Court

Muhammad Younis.  Picture by RTE.  

Further update, June 2015:

The Supreme Court upheld Mr Younis's appeal

In a very important decision yesterday, Hussein v The Labour Court [2012] IEHC 364, Hogan J. found that a migrant worker (Mr Muhammad Younis) who had been exploited by his employer could not claim under the working time legislation, minimum wage legislation and the Terms of Employment (Information) legislation.  See news reports at Irish Times and RTE websites.

Liam Thornton has an excellent post over at humanrights.ie summarising the issues, particularly focusing on the international human rights dimension of the case.

While we are still digesting the judgment as it has only recently been published, some additional points which have struck me are as follows:

• Hogan J. says at para. 19 that the Employment Permits Act 2003 contains no saving clause such as obtains in the case of unfair dismissals.  However, the National Minimum Wage Act 2000 does contain a saving clause at s.40.  While it is likely that even if he had referred to this section, he would have reached the same conclusion, it is surprising that he does not explicitly address it.  
• Hogan J. does not refer explicitly to the significant Irish employment law case of Lewis v Squash Ireland [1983] ILRM 363.  In that case, the Tribunal stated: "It is public policy that the Courts and this Tribunal should not lend themselves to the enforcement of contracts, either illegal on their face or in which the intended performance of obligations thereunder was illegal to the knowledge of the party seeking to enforce the contract" (emphasis added).  Hogan J. could have explored whether he agreed with such a statement of public policy by the EAT, rather than relying entirely on court decisions.  While of course the courts have superior authority to the tribunals, they have also recognised the specialist expertise of such tribunals in the past.
• Hogan J. also does not refer to Dubyna v Hourican Hygiene  (2005) UD 781/2004, another EAT case in which it was found that a contract in breach of the Employment Permits Act 2003 was enforceable where the employee was unaware of the breach.  Admittedly, the circumstances were quite different but nonetheless it is a more relevant decision than some of those cited in the High Court decision. 
• As far as I can see, the only English case referred to is from 1957.  There is no reference to the recent Court of Appeal case of Hounga v Allen [2012] EWCA Civ 609 which involved breach of work permits legislation.  While the court did not permit the claim in that case, it allowed for the possibility that in some cases an employee might not be an active participant in an illegality, but instead acquiesce in the state of affairs, in which case she might still claim.  (See Laurie Anstis posting on Daniel Barnett blog here.)  [Update in 2014:  The UK Supreme Court has upheld the appeal against the Court of Appeal decision - Hounga v Allen [2014] UKSC 47 - See Vanessa James posting on Daniel Barnett blog here.] 
• I am not entirely comfortable with the idea of the High Court posting copies of its decisions to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation.  I agree that a judge may highlight a possible anomaly in the law, or possible unintended consequences of legislation, and even state that the law should be changed (as happened in the X. case).  But it is unnecessary and perhaps could be misinterpreted for the judge to post the decision to these three people.   They are all surely aware of the decision, as they are aware of all court decisions.  Perhaps I am splitting hairs here?  

[Further Update in 2014 - The Employment Permits (Amendment) Act 2014 will allow a migrant worker in Mr Younis's situation to bring a civil action seeking compensation for work done.  The Act will come into force on a date specified by the Minister. The new Act was welcomed by Migrant Rights Centre Ireland here. However, as the Centre notes, much more needs to be done.  From an employment law perspective, it is unclear to what extent a migrant worker without a work permit could bring an action other than an action seeking compensation for work done. ]   

Further update, June 2015: 
The Supreme Court upheld Mr Younis's appeal

An Bord Snip and the Legal System

Colin Scott has a useful blog post on An Bord Snip's proposals regarding the legal system here.
Join in the lively discussion in the comments section.

Frozen Embryos in the High Court

In November 2006 McGovern J. ruled in the High Court that Ireland's constitutional protection of "the unborn" does not include embryos outside the womb.

The full decision is now available on BAILII:
M.R. v T.R. and Others [2006] IEHC 359 (15 November 2006)
www.bailii.org/ie/cases/IEHC/2006/H359.html

The earlier High Court case was
M.R. v T.R. [2006] IEHC 221 (18 July 2006)
http://tinyurl.com/yrpdlu

Sample News Story:
Legislation prospect after embryo ruling
www.rte.ie/news/2006/1115/embryo.html

Extracts:

"The Minister for Health & Children, Mary Harney, has said she had already instructed her Department to begin preparing for legislation in the area of assisted reproduction.

Ms Harney's statement followed a High Court judgment rejecting the case of a woman seeking to have three frozen embryos released to her against the wishes of her estranged husband.

The woman argued that the embryos had a right to life under the Constitution, but the High Court ruled that the protection of the unborn does not include embryos outside the womb.

.....

However, today the High Court concluded that the three frozen embryos are not unborn within the meaning of the Constitution.

Mr Justice Brian McGovern said that it had never been in the minds of people voting on the 1983 Constitutional Amendments on Article 40.3.3 that the unborn meant anything other than the foetus in the womb.

The judge also said it was not possible for the court to decide when unborn life begins - that was not necessary to resolve the issues in this case."

Transgender Law - Lydia Foy in High Court

As many people will know, the High Court has decided in the Lydia Foy case that it will issue the first declaration of incompatibilty of an Irish law with the European Convention on Human Rights. [update April 2008 - The full judgment is available on the Courts Service website at http://tinyurl.com/5v764b. ]

Sample news stories and blog posts:

"State in breach of ECHR in transgender case
www.ireland.com/newspaper/breaking/2007/1019/breaking49.html

The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "

Sex change law incompatible with ECHR:
www.rte.ie/news/2007/1019/foyl.html

The Foy Case (CCJHR Blog - Fiona De Londras):
www.ucc.ie/law/blogs/ccjhr/2007/10/foy-case.html

Tanya Ní Mhuirthile, Time to respect the rights of all gender identities, Irish Times:
www.ireland.com/newspaper/opinion/2007/1101/1193444281616.html

Previous Lydia Foy case:
www.bailii.org/ie/cases/IEHC/2002/116.html

Irish Law RSS Feeds

For those who are fans of RSS feeds I've added two new feeds to the Irish Law Site cases page:

• The IRLII Lastest Irish Cases RSS News Feed
  This feed has been on the IRLII site for quite a while now (about a year?) and is maintained by my colleague John Mee with the assistance of Micheal O'Dowd.


• The www.courts.ie Judgments RSS News Feed
  This is an experimental feed I created using feedyes.com (update 5 October: the feed now uses ponyfish.com.) Unfortunately the headlines consist of the dates of judgments rather than titles, but at least when new judgments are posted on the site they'll show up in your feed reader.

A reminder of two other RSS feeds which we already have:

• Irish Law Updates Blog Feed
• Irish Law Discussion Feed

If you haven't heard of RSS feeds, a brief outline of how they work is available here.

Mahon Tribunal Case 4 July 2007

Yesterday's Mahon Tribunal case in the Supreme Court is available on the Courts Service website at www.courts.ie/Judgments.nsf/Webpages/HomePage

The title is
Fitzwilton Limited and Others -v- Judge Alan Mahon and Others [2007] IESC 27

A brief extract from paragraph 14 of Denham J's judgment:

'I also note the words of the next paragraph. These are:- "The Tribunal may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues which are currently part of a matter designated and listed herein." The words "The Tribunal may decide" is not a record that a decision has been made. The words are not "The Tribunal has decided". Rather, the words, "The Tribunal may decide", indicate that a decision may be taken in the future by the Tribunal. It is clear that the Tribunal has considered the listed matters. This is the first step required by the Houses of the Oireachtas.
The second step the Tribunal was required to take was to make a decision as to the additional matters which should proceed to public hearing. The words in the document "… may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues … listed herein" indicate that the Tribunal reserved its decision to a future date, which may be a reference to the discretion conferred by paragraph J(6). The words "may decide", indicate an action in the future.
This is confirmed by the words stating that the Tribunal may do either of two things. The specific words: "and/or proceed to public hearing", describe a situation where the matters are under consideration not decision.
The third step is to record the decision. On its face the document of the 28th April, 2005, does not record a decision that specified additional matters go to a public hearing.'

Sample media coverage:
http://www.rte.ie/news/2007/0704/mahon.html