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)

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