UD2317/2010, UD2318/2010

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms B. Glynn

Members:     Mr D. Morrison

                     Mr T. J. Gill

heard these appeals at Roscommon on 28 June 2013 

Representation:

Appellants: 

Mr Paul Hutchinson BL instructed by Mr Sean Ormond,

Employment Matters, Suite 9, The Atrium,

Canada Street, Waterford

Respondent:

          Mr Aidan Phelan, Peninsula Business Services (Ireland) Limited,

          Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3        

This case came before the Tribunal as a result of appeals by the employees (the appellants) against two recommendation of the Rights Commissioner under the Unfair Dismissals Acts R-071691-UD-08 and R-071677-UD-08/EOS

The determination of the Tribunal was as follows:

These being claims of constructive dismissal it fell to the appellants to make their case

The second named appellant not being in attendance at the hearing the Tribunal found, being satisfied that she was properly on notice of the hearing and on application in that regard on behalf of the respondent, that her appeal must fail for want of prosecution.

Preliminary Issue

It was contended on behalf of the respondent that as the first named appellant (the appellant) was not the holder of an employment permit at the time she was claiming to have been constructively dismissed then, following the finding of the High Court in Hussein v The Labour Court on the Employment Permit Acts, 2003 to 2006 (the Act of 2003) in which Hogan J. found

“Neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract which is substantively illegal in this fashion. For those reasons, the decisions of the Labour Court cannot be allowed to stand.”

In this case the High Court found that regardless of the reasons for the failure to secure a work permit such failure was irrelevant to the substantive illegality of the absence of the appropriate employment permit.

The appellant’s position was that she commenced her employment with the respondent in December 2003. At that time she transferred into the respondent from another enterprise in the mushroom industry. The respondent’s position was that her employment began in June 2004. In order for the respondent to obtain an employment permit for the appellant it was necessary for the respondent as her employer to produce both the claimant’s passport and her Garda National Immigration Bureau (GNIB) card.

The appellant’s position was that the respondent only renewed her employment permit on one occasion that was in December 2005. This renewed permit expired on 16 December 2007 and was not renewed. The respondent’s position was that they had applied for renewed permits for four employees, including the appellant, had been successful in renewing two of the four whereas the appellant was one of the two renewals which were unsuccessful. There was an issue over the stamping of the GNIB card.

The appellant’s position was that she had given her documents to the managing director some three months before the renewal date of December 2007 and these had not been returned to her prior to her leaving the employment in October 2008, having given notice of termination of her employment in August 2008 

Determination

Reference was made to other Determinations, and, in particular, the 2012 Judicial Review High Court entitled Hussein -V- The Labour Court and Younis, and the Tribunal were handed a copies of these Determinations and Judgement for their consideration. The Tribunal then withdrew to discuss and determine this matter.

Central to the submission is the contents of the 2003 Act, with specific reference to Section 2(1) which clearly sets out that a non national cannot work in Ireland without an Employment Permit granted by the Minister. Subsection (3) makes such action a criminal offence, and while subsection (4) sets out grounds of defence for an Employer, if charged with this offence, there is no corresponding subsection for an employee. In other words, it is an absolute offence for a non national to work in Ireland without a Permit, and if they do so work, there is no defence if they are so charged, and while this situation offends every tenet of natural justice, it is, nevertheless, the law. In addition such illegality has implications in the civil law, in that such contracts must be taken to be void. To hold otherwise would make a mockery of the Act.

It therefore follows that as this is the law, the Tribunal is left with little choice but to hold that any contract entered into by an employee, without a work permit, is illegal.  In addition, because the Act does not allow for any defence to this ‘crime’, the reasons as to why the employee is so working, however compelling, are irrelevant to that substantive illegality.

In this case, it was the appellant’s position that it was the failure of the employer to process the work permits in a timely fashion that led to her working without it. However, and as stated above, the Tribunal cannot deal with, or, consider same in mitigation of the employees crime. Such facts are irrelevant. The reality is that pursuant to the 2003 Act the fact that the applicant worked without a work permit meant that she committed a criminal offence, with the unfortunate consequence that any contract created pursuant to same was illegal, and we, as a Tribunal, while conscious of the inherent injustice of this law, have no jurisdiction to entertain any claim pursuant to same. This would be for consideration by another Court in another forum. Accordingly the Tribunal has no jurisdiction to hear the appeal under the Unfair Dismissals Acts, 1977 to 2007

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)