RPD1916

FULL RECOMMENDATION

RPA/17/30

DETERMINATIONNO.RPD1916

ADJ-00006898 CA-00009335-006

REDUNDANCY PAYMENTS ACTS, 1967 TO 2014

PARTIES :

TA HOTELS LIMITED T/A LYNAMS HOTEL
REPRESENTED BY MARTIN CANNY B.L.
INSTRUCTED BY P.M. MARTIN SOLICITORS

- AND -

VIRESHWARSINGH KHOOSYE
REPRESENTED BY MICHAEL MCCORMACK B.L.
INSTRUCTED BY WILLIAM FRY SOLICITORS

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Mr Hall

SUBJECT:
1. Appeal Of Adjudication Officer Decision No. ADJ-00006898 CA-00009335-006.

BACKGROUND:

2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 10 November 2017. A Labour Court hearing took place on the 24 May 2019. The following is the Court's Determination:

DETERMINATION:

This is an appeal by TA Hotels Limited t/a Lynams Hotel against decision ADJ-00006898, CA-00009335-006 of an Adjudication Officer in a complaint by Mr Vireshwarsingh Khoosye against his former employer TA Hotels Limited t/a Lynams Hotels. The complaint relates to alleged contraventions of Redundancy Payments Act 1967 (the Act). The Adjudication Officer found his complaints to be well founded and directed that the Respondent pay the Complainant his statutory redundancy entitlements.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Vireshwarsingh Khoosye will be referred to as “the Complainant” and TA Hotels Limited t/a Lynams Hotel will be referred to as “the Respondent”.

The Complainant referred his claim to the Workplace Relation Commission on 26^thJanuary 2017. The complaints were heard by the Adjudication Officer on the 19^thApril 2017 and the Respondent failed to appear. The Adjudication Officer issued a decision upholding the complaints on the 6^thJuly 2017. The Respondent appealed the Adjudication Officer Decision to the Court on 26^thOctober 2017. The appeal came before the Court on 24^thMay 2019.

Respondent’s Appeal Out of Time

The Respondent’s appeal was submitted outside of the statutory time limit. On 12^thJanuary 2018, the Court held a hearing on the preliminary issue of time limits.

The Respondent applied to have the Court direct, in accordance with Section 44(4) of the Act that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act. Following which the Court held that the appeal was made within time and the Court had jurisdiction to hear the appeal.

Appeal Hearing of the Substantive Case Before the Court

At the hearing of the Court on 13^thJuly 2018 the Respondents legal representative made an application to the Court to substitute Ms Theresa Andreucetti Company Director for the Company name as the Company had been struck off the Companies Registration Office Register (the Register) and it sought an adjournment to have the Company restored to the Register, which Counsel for the Respondent confirmed was restored to the Register in September 2018. The Respondent was therefore confirmed as TA Hotels Limited T/A Lynams Hotel.

The Court decided that the appeal could not proceed and accordingly held that it failed for want of prosecution. On that basis the Court upheld the Decision of the Adjudication Officer.

Judicial Review Application to the High Court

The Respondent applied to the High Court for an Order of Certiorari by way of judicial review of the Labour Court Decision RPD1810. By Order 2018 No 808 JR, dated 18^thDecember 2018, the High Court decided in favour of the Applicant and ordered that the Decision and all records and entries relating to it be quashed without any further Order. And it Ordered that the appeal be remitted to the Labour Court for further hearing consideration and determination in accordance with law.

Labour Court Hearing of the Substantive Case

Background

The Complainant is a Mauritian national. He arrived in Ireland on 4th February 2008. He commenced employment with the Respondent on 2nd July 2010 and latterly worked as a Chef. He arrived in Ireland on a student visa and therefore worked part-time while studying and worked full-time during student holidays, in accordance with his visa restrictions. His visa expired on 4th June 2013 and he continued in full time employment with the Respondent. He left the employment in June 2013 and returned to work for the Respondent in October 2013. In February 2015 he made an application to the Minister for Justice and Equality for leave to remain and the Respondent provided letters in support of this application. The Complainant’s applications, along with many other similar applications, awaited the outcome of a High Court matter (to which the Complainant was not a party), which was awaiting the outcome of a Supreme Court matter.

In or around February or March 2019, subsequent to the previous hearings before this Court, both the Complainant and his wife were granted “Stamp 4S” permission to stay in Ireland, which allows him to take up employment without a requirement to hold an employment permit.

In July 2016 he was informed by the Respondent that the hotel was closing, and his employment terminated on 1st August 2016.

Legality of Contract of Employment

The Respondent alleged that the Complainant’s contract of employment was illegal, and therefore he could not enforce his statutory employment rights.

Summary of the Respondent’s Position

Mr Martin Canny, B.L. instructed by Patrick M. Martin Solicitors on behalf of the Respondent, stated that the Complainant was dismissed on 4th March 2016 due to his failure to furnish proof of his legal right to work within the State. He said that the Respondent had afforded him every opportunity to rectify his visa situation however, he failed to obtain an appropriate work visa.

Mr Canny said that the issue of the effect of illegality (i.e. absence of a work visa) on the ability of an employee to claim compensation from the employment tribunals has recently been the subject of judicial consideration inHussein v. The Labour Court[2012] IEHC 364; [2012] 2 I.R. 704; [2012] 2 I.L.R.M. 508(Hogan J on 31st August 2012). He said that although theHusseincase was a Judicial Review, the High Court and Supreme Court gave guidance on the correct interpretation of the law.

He said that these comments (obiter dicta) are now binding on the Labour Court and ought only to be challenged (if at all) if any decision made in this matter is further appealed to the Superior Courts. The starting point must obviously be the judgment of Murray J. in the Supreme Court. While he reversed the High Court decision of Hogan J. he did so on the basis of what can and cannot be raised as arguments in judicial review proceedings. Murray J. quoted at length from the judgment of Hogan J., as follows:-

At para 13 of his judgment the learned trial judge stated:
- “At the heart of the Applicant’s case is that Mr Younis has no standing to invoke the protection afforded by the employment legislation of this State, since by definition any contract of employment was an illegal one in the absence of an employment permit, so far as illegal contracts are concerned, the courts must, where possible, avoid applying
  too severe an approach, still less some formalistic approach which assumes that the enforcement of an illegal contract always presents insuperable public policy objections….. In some cases, however, the court has no alternative but to hold that the contract in question is rendered substantively illegal by statute. This, as we shall see, is one such
  case”.

He then went on to refer to a key provision of the Employment Permits Act 2003 (as amended by the Employment Permits Act 2006). He correctly pointed out that the effect of the provisions of this Act is that a non-national may not enter the service of an employer or be in employment in the State unless he has an employment permit granted by the Minister. He also pointed out that it was an absolute offence for a non-national to be in employment without such a permit. He concluded that this was the position as a matter of fact in this case that the notice party was in the employment of the Applicant without a work permit. He concluded that a contract of employment between the Applicant and the notice party must be taken as void it was not simply a case of an incidental illegality.

- At para 18 he stated
  - - “To my mind, therefore, the present case cannot be sensibly distinguished from the decision of the Supreme Court in Martin v Gaibraith (1942) P 37. Here the Plaintiff sued to recover overtime payments which had been earned in circumstances where he had worked in excess of a statutory prohibition contained in a statute.”
  He referred to the statement of Murnaghan J in that case to the effect
  - - “Parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the Legislature has clearly given a right to sue”.

The learned trial judge concluded that any contract of employment between the Applicant and the notice party would be contrary to the provisions of statute and substantively illegal. He concluded therefore that ‘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’ and for these reasons, he set aside the decisions of the Labour Court.Hogan J then added in Paragraph 52 of his judgment:

- “... Since any issue of illegality concerning the employment relationship between the relevant parties in this case does not arise within the proper parameters of this judicial review, it is not necessary to address those issues (or other contingent issues) in any way.”

Mr Canny respectfully submitted that while the decision of the High Court judge to set aside the award in Mr Hussein’s favour on grounds that he was working illegally (as he had no valid work visa) was set aside on appeal by the Supreme Court, the comments of Mr. Justice Murray giving the judgment of the Supreme Court do not challenge or undermine the validity of the comments of Mr. Justice Hogan in the High Court in theHusseincase. Instead, the comments of Mr. Justice Hogan on the consequences of working without a valid work visa still represent the law and remain binding on the Labour Court. Accordingly, Mr Canny contended that the Court ought to dismiss the complaints of the Complainant on grounds of illegality, as he had ample opportunity to regularise his work visa situation and did not do so.

- Summary of the Complainant’s Position

Mr Michael McCormack, B.L., instructed by William Fry Solicitors on behalf of the Complainant argued that the Adjudication Officer’s Decision which found in favour of the Complainant’s entitlement to his statutory redundancy payments should be upheld.

Mr McCormack asserted that it is well established that the onus of proving any alleged illegality in a contract is on the party seeking to rely on the illegality. He said that the Complainant took all reasonable steps to address his immigration status and therefore obtain employment permits and did so as soon as he became aware of such steps available to him.

Mr McCormack referred toHusseinwhere the Hogan J held that the employee could not rely on the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000 as, in the absence of an employment permit, his alleged contract of employment was illegal. On appeal, inHussein, the Supreme Court overturned the finding in favour of the employer on the ground that the impugned decision of the Labour Court was a procedural enforcement decision only, and that it was incorrect for the High Court to review the underlying Rights Commissioner decision in the particular circumstances of that case.

Mr McCormack stated that while Hogan J’s decision in the High Court inHusseinis technically anobiter dictum, he contended that it was certainly very persuasive, as the issues in this case were exhaustively argued before the High Court and the Supreme Court. It is submitted that Hogan J’s decision, and the obiter comments thereon by the Supreme Court, are a useful starting point in considering whether the Complainant’s contract was illegal, and that the decision and comments thereon can be considered in light of recent law on illegal contracts generally.

Mr McCormack stated that in holding that a contract of employment is an illegal contract in the absence of an employment permit, Hogan J relied on a very specific provision of the Employment Permits Act 2003 (as amended, at the time, by the Employment Permits Act 2006). He held that:

- “It is, moreover, clear from the terms of s. 2(4) of the Act of 2003 that while an employer can defend criminal proceedings on the ground that he or she took all reasonable steps to secure compliance with the Act of 2003, no such defence is available to the employee. Applying standard principles of statutory interpretation, therefore, one is compelled to hold that s. 20 of the Act of 2003 creates an absolute offence so far as an employee is concerned, since the very structure of the section in general and s. 2(4) of the Act of 2003 in particular - is consistent only with the conclusion that the Oireachtas intended that a due diligence style defence of an endeavour to comply with the work permits requirement would be available to the employer only and not to the employee...”

Mr McCormack contended that it was clear from that reasoning, that Hogan J found that the contract of employment inHusseinwas illegal because, and only because, there was no defence to criminal proceedings available to an employee in the absence of an employment permit. This is no longer the case.

Section 3 of the Employment Permits (Amendment) Act 2014, which was introduced in response toHussein, inserted subsection (3A) in section 2 of the Employment Permits Act 2003:

- “(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).”

This makes an identical defence available to an employee in criminal proceedings to the defence available to an employer and removes the reason for Hogan J’s conclusion inHussein.

The Supreme Court judgement inHusseinstrongly suggests that employment permit status should no longer be permitted to undermine basic employment rights. The key criteria, was whether the putative contract was inherently lawful in its subject matter, as is the case herein - or for clearly unlawful purposes such as criminal endeavours. The Supreme Court said:-

- “With so many regulatory measures in the modern economy concerning employment relationships and the supply of goods and services, the circumstances in which a contractual relationship which gives rise to some form of illegality might be considered a ground for not enforcing it, is a complex one. 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. Since any issue of illegality concerning the employment relationship between the relevant parties in this case does not arise within the proper parameters of this judicial review, it is not necessary to address those issues (or other contingent issues) in any way.

- 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.”

Mr McCormack stated that the secondary legislative response to theHusseinlacuna was the insertion of sections 2B and 2C in the Employment Permits Act 2003. This explicitly entitles an employee without an employment permit to“institute civil proceedings”where they have been“paid an amount of money that was, having regard to the work done or services rendered during such period, an insufficient amount of money”. He said that the Act does not define“civil proceedings”and the entitlement of an employee without an employment permit to pursue statutory employment rights through the system of statutory employment tribunals and remedies has not been properly addressed by those tribunals (including this Court) or by other courts of law.

Section 2B(4) provides that an employee may be compensated in such civil proceedings on the basis of the national minimum wage or“an amount equal to an amount of pay for the work done or services rendered which is fixed under or pursuant to any enactment”. The second part of that provision potentially includes entitlements under,inter alia, the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991, entitlements on which the Complainant herein relies.

Furthermore, Mr McCormack submitted that section 2B entitles the Complainant to pursue his statutory employment rights through the system of statutory employment tribunals. He referred to Murdoch’s Dictionary of Irish Law which defines“proceeding”as“the institutions of a legal action”and notes that a“proceeding may be criminal or civil”. Specifying“civil proceedings”distinguishes the remedy from criminal proceedings but does not limit it to a civil action for damages in the normal courts system.

Some employment legislation restricts an employee’s entitlement to litigate certain matters outside of the system of statutory employment tribunals in certain circumstances. Such legislative restrictions distinguish court proceedings from statutory employment tribunal proceedings, by using quite specific legal terms such as“proceedings for damages at common law”, (Section 15 of the Unfair Dismissals Act 1977 and section 101 of the Employment Equality Act 1998). Furthermore, other employment legislation frequently uses the term “proceedings” to refer to statutory employment tribunal proceedings.

Mr McCormack said that if the Oireachtas intended that the right to“institute civil proceedings”referred to in section 2B of the 2003 Act, as amended, to be limited to an action in the District, Circuit, or High Court, it would have done so explicitly. Section 2C refers to the District Court and the Circuit Court, but only, it is submitted, because it was necessary to provide which district and circuit would have jurisdiction should an employee wish to issue an action in those courts.

Furthermore, Mr McCormack submitted that subsection 2B (9) states that civil proceedings shall not be brought where the foreign national, in respect of any right of action he may have and whether such right of action arises pursuant to“any enactment or otherwise”has instituted“proceedings”in relation to the same matters or otherwise commenced an action or other claim in relation to those matters. Therefore, he submitted that even if this Court is of the view that the legislature did intend to limit section 2B to an action in the District, Circuit, or High Court, the reference to other proceedings strongly suggests that the legislature accepted that the foreign national would be able to pursue complaints before the statutory employment tribunals, and that section 2B is only to explicitly provide such vulnerable workers with extra protection.

Mr Mc Cormack submitted that even if the Complainant cannot rely on the amended legislation, it is also clear from the Supreme Court’s recent decision inHusseinthat because this is not a contract that was inherently illegal the Complainant is therefore fully entitled to rely on his employment rights arising from the existence of that contract.

Mr McCormack also referred to McDermott & Mc Dermott on Irish Contract Law and the authors note that the current law on the issue of illegal contracts is set out by Clarke J inQuinn v IBRC (in special liquidation) [2016] 1 IR 1.

In summary, any illegality which may have arisen is not so fundamental to the employment relationship as to render the entire contract unenforceable or the Complainant’s employment rights unenforceable.

Witness Testimony

Mr Vireshwarsingh Khoosye, The Complainant

The Complainant’s evidence can be summarised as follows:-

The witness told the Court that he came to Ireland from Mauritius in February 2008. He had a Stamp 2 student visa which permitted him to work for 20 hours per week during term time and 40 hours per week during holidays. He worked at another hotel for two years before commencing employment with the Respondent hotel in July 2010.

He was initially employed as a kitchen porter and later as a chef and then as head chef. He confirmed that he completed and signed the Respondent’s‘Employee Starter Form’on 7^thJuly 2010. He further confirmed that he signed a contract of employment on 7^thSeptember 2010 which was given to him by LK, his manager. He said that in 2010 he was working 30-40 hours per week at €8.65 per hour and was paid by electronic transfer to his bank account. He said that he was promoted to chef during 2013 and to head chef in November 2014. His hours of work as head chef were 50 hours per week. He said that he worked throughout 2013 and 2014 for the Respondent.

He told the Court that his Stamp 2 visa expired in June 2013. He and his wife contacted a solicitor in January 2015 to make an application for a visa. He said that the whole process was delayed due to a High Court case and that, it was not until February 2019, that he was issued with a 4S visa.

The witness said that his visa expired in 2013 and he informed management within a month. LK had left the employment at that point (but she returned some time later), so he told the incumbent manager. He did not speak with the owner, Ms. Andreucetti. He said that from then on, management wanted to know what was going on with his visa.

When his employment ended in August 2016, the witness said that he heard of the hotel closure on the news in relation to a High Court case. He said he had asked Ms. Andreucetti about the situation with the High Court case when a public protest was placed outside the hotel in relation to the prospect of homeless people, who had been accommodated in the hotel on behalf of Dublin City Council, being moved out. He said that Ms. Andreucetti told him that she would win the High Court case. However, Ms. Andreucetti later confirmed, following the case, that the hotel would be closing on 1^stAugust 2016. He said his last day working for the Respondent was Saturday 30^thJuly after which the staff had a small party. He said that he normally worked Sundays but didn’t work on Sunday 31^stJuly nor on Monday 1^stAugust. He got his final pay cheque during the first week of August but got no P45.

Referring to the earlier intervention of NAMA in the hotel’s affairs, the witness said that after the NAMA representative attended at the hotel, it closed for one day. From that point onwards, he was paid by cheques signed by LK and was no longer given payslips. He said he cashed the cheques at a local bank branch and was required to sign the back of the cheque and show his passport. He said that after the NAMA closure and reopening he was still doing the same work and same hours as a head chef, working 50 hours per week.

The witness said that he worked many Sundays during his employment with the Respondent but never got anything extra for it. He got paid for his holidays up until 2016 and didn’t get any holiday pay for 2016. He asked for holidays during 2016 but was told by LK that he was not entitled to it because he didn’t have a visa.

The witness said that when the hotel was due to close, he asked about a redundancy payment but was told by LK that he was not entitled to it because he did not have a visa. He said that he got alternative employment in August 2016 in a retail convenience store and later got a role as a 2^ndchef in a public house in Dublin city centre. He said he didn’t get a P45 when he finished with the Respondent, this resulted in him being placed on emergency tax with his new employer. He contacted the Revenue Commissioners and he was told to obtain the P45 from his former employer. The witness told the Court that LK had told him he could not use the P60 forms he was given by the Respondent during his employment because he didn’t have a visa.

Under cross-examination, the witness said that he didn’t remember signing the contract in September 2010, but he accepted that it was his signature.

It was put to the witness that he did not work continuously for the Respondent between 2010 and 2016 and that he had left the employment of the Respondent in June 2013 and was re-employed in October 2013. In response, the witness said that he left for 2 months, he didn’t have a visa and then returned and worked three days per week, Friday, Saturday and Sunday. He said that the Respondent reduced his hours to three days per week because he did not have a visa.

It was put to the witness that by 2016 he had not had a visa for nearly three years and his employer was enquiring about the situation. He agreed that his employer was making such enquiries and his response to his employer was that he was trying his best to get it sorted but it would take time.

It was put to the witness that Ms. Andreucetti in conjunction with LK had terminated his contract in March 2016 because he had not obtained a visa. The witness disputed this and said he was not dismissed until the hotel closed in August 2016. He said that the Respondent needed a head chef and that he worked throughout March/April 2016 and beyond with the exception of one week when he took a holiday in Donegal with his wife.

Theresa Andreucetti, Owner

Ms Andreucetti’s evidence can be summarised as follows:-

The witness was asked about P60’s and P45’s in relation to the Complainant. She told the Court that if an employee finishes work prior to 31^stDecember in the year then they get a P45 upon leaving, not a P60. She said that the Complainant’s P45, opened up to the Court, was generated by the Respondent’s payroll function. She said that the P45 was uploaded to the Revenue Commissioners and a copy given to the Complainant.

The witness confirmed that it was her understanding that the Complainant’s visa expired in October 2014 (she presented such a visa to the Court). She said that he left the employment in June 2013 and returned to the employment in October 2013. She confirmed that he had left the employment and that this was why he was taken off the payroll. She said there would have been no reason to take him off payroll due to a reduction in his hours of work.

The witness said that she was told by the Complainant that he had gone to a solicitor to apply for a visa She told the Court that on every occasion she sought to gain details of his employment status, the Complainant insisted that the matter was in hand and that his solicitor was actively seeking a visa and that while his application was under consideration by INIS he was allowed to remain in Ireland and that the solicitor had told him that he could continue working while his application was being processed.

The witness said that she wanted to follow up on this. She sought documentary verification and was provided with an INIS letter from the solicitor acknowledging receipt of the visa application. She said that she telephoned the solicitor’s office many times but could not get to speak with the solicitor. In addition, she confirmed that she wrote to the solicitor but received no reply. She said that the solicitor eventually came back to her during 2016 and confirmed that the Complainant had no right to work in Ireland or be in Ireland.

The witness said that following the solicitor’s confirmation of the situation she terminated the employment as he did not have a visa or permission to work and it was unlawful to continue him in his employment. In addition, she said that she believed that the Complainant had given her false information when he told her that his solicitor had said that he could work while the visa application was being processed.

She said that that LK prepared a P45 for him. She said that after the Complainant was let go, he came back and asked for work because he had no employment and no money. She said he was given some work on a self-employed basis and was paid by cheque.

In relation to the NAMA intervention, the witness said that in and around 4^thor 5^thApril 2016, the Tuesday after the Easter weekend, NAMA took over and were on the premises for four days. The restaurant was closed for one day, but guests were still accommodated in the hotel. The witness said that she went to court and got possession back on the Friday of that week and continued trading. She said that the NAMA events had no impact on the staff’s employment.

The witness said that from that point on in April 2016 until the closure in August 2016 she didn’t have any knowledge of the Complainant’s hours of work, as she was not in the hotel much during that period, but she believed that the Complainant was a casual worker, paid by cheque, who looked after his own tax affairs. She believed that he could not be an employee as he was illegal.

In relation to contracts of employment, the witness said that all staff were issued with written contracts. She said that there was a clause in the contract dealing with Sunday working whereby staff were paid for their breaks and provided with meals, this was equivalent to a Sunday premium. The witness said that all staff were paid for holiday leave.

On the question of redundancy entitlement, the witness stated that the Complainant’s employment was terminated as he did not have a visa, therefore he was not made redundant. In relation to minimum notice, the witness said that she had been in court and was given only three days to vacate the hotel. She said that all staff were told on the Friday what the outcome was, and they spent the weekend clearing the premises out.

She confirmed there was an open offer for staff to take up alternative employment with another business that she had and that some staff took this up.

Under cross-examination, the witness was asked about the lack of response from the Respondent to a data access request by the Complainant in December 2017 pursuant to the Data Protection Acts. The witness said that she didn’t deal with the request personally, that LK handled such matters and she does not know why it was not done. She recalled LK mentioning the request.

The witness was asked why the Complainant was not issued with a contract when he was re-employed in October 2013. The witness said that his original contract applied, and the terms and conditions were the same.

The witness was asked about the P45 for the Complainant. She said that it had been produced on 4^thMarch 2016. She said that she was not present when the P45 was given to the Complainant as LK did this.

The witness was asked about the system of issuing cheques for payment to the Complainant from a particular point in time. The witness explained that she had signed a batch of blank cheques and sent them to the business. The relevant manager then filled in the details and issued them accordingly. She said that she signed and sent such cheques every week or every second week and the managers would use the cheques to pay suppliers or to pay staff who didn’t have bank accounts for whatever reason. She said that there was no second signatory in the business, so it was she that signed all the cheques.

In relation to redundancy, the witness accepted that a redundancy situation arose as of 1^stAugust 2016 when the hotel closed. She said that anyone who qualified for redundancy, received it.

The witness was asked about the allegation made by her in evidence that the Complainant had given her false information regarding his visa situation. The witness said that she terminated the employment of the Complainant because he could not legally work as he did not have a visa. She said that the Complainant told her that he was allowed to work while his visa application was in process, but she said that this was false information. She only became aware of this when she received the call back from the Complainant’s solicitor who confirmed that he was not allowed to work while applying for a visa. She said that she had been following up with the solicitor for months and months and the solicitor eventually came back in January/February 2016 and confirmed that the Complainant could not legally work. She clarified that she had been trying to contact the solicitor since February/March of 2015 by telephone and she said that she also wrote to the solicitor.

The witness said that she had been employing people in the hospitality industry since 2000. She said that in that industry you employ many non-Irish nationals, and that she had persistently been trying for over a year to establish if the Complainant had a valid visa to work. She said that she had never had to apply for work permits and was not aware of the work permit system.

Discussions and Conclusions of the Court

Expiry of a visa

If a visa expires the permissions attached to it become exhausted. Consequently. the permission to a person to work without a work permit expires with the visa. The employment of such a person becomes subject to the Employment Permits Acts. Consequently, it would appear, that a person who continues to work after the expiry of a visa, without a work permit, commits an offence.

In this case the employment contract when entered into in February 2011 was perfectly lawful. It became illegal when the Complainant’s visa expired in June 20134, The Court notes that the Respondent was provided with a visa for the Complainant, issued by the Garda National Immigration Bureau, which stated that it expired on 10th October 2014 (copy of which was furnished to the Court), yet the Complainant told the Court that his visa expired on 4th June 2013 and he denied any knowledge of the former visa.]

The question that then arises is whether, despite the illegality, the contract can be said to be enforceable.

Distinction between Hussein Case and the Instant Case

The High Court case inHusseinwas a judicial review of Labour Court enforcement decisions which were granted in circumstances where the respondent had not complied with Rights Commissioner decisions within the allowable timeframe. The High Court decision went beyond a review of the Labour Court’s process in granting the enforcement decisions and strayed into dealing with the substantive case, which involved the question of whether Mr Hussein had been employed under a lawful contract of employment. The High Court found that the contract was unlawful, quashed the Labour Court decisions and overturned the Rights Commissioner award of €92,000. The Supreme CourtAmjad Hussein v The Labour Court and By Order Mohammad Younis and Amnesty International (Amicus Curiae)[2016] 1 I.L.R.M. 55reversed that decision and found that the High Court had gone beyond its remit and there was therefore no basis to set aside the Labour Court decisions.

Notwithstanding that the question of contract illegality was not within scope, the Supreme Court did makeobitercomments on the issue which suggests that where there is a question of illegality in the employment relationship, unless the contract is for something which is inherently unlawful, such as an agreement to rob and distribute the proceeds of the robbery, then some form of illegality in the relationship is not necessarily a ground for not enforcing it, having regard to the modern employment relationship, which is an inherently lawful relationship, and the principle of proportionality.

Around the same time as theHusseincase the Supreme Court inQuinn v IBRC [2016] 1 IR 1sets out the current law on contracts rendered illegal by virtue of statute. The Supreme Court decided that the approach which provides the greatest level of certainty is one which considers whether the public policy purpose of the statute requires that any contract which contravenes the statute must be held to be void or voidable. In setting out that the proper approach is statute specific and not case specific, the Court stated:

- “An alternative approach, which seems to me to give rise to a much greater degree of certainty, seeks to reconcile the competing principles by having regard to what may be seen to be the policy requirements of the relevant statute which creates the illegality in the first place. On that basis, a court is required to assess whether the requirements of public policy, in respect of a particular statutory provision rendering, as a matter of the public law of the State, a particular type of activity illegal, require that contracts sufficiently connected with that particular type of illegality are to be regarded as unenforceable. Such an approach requires each statutory regime (or part of a statutory regime) to be independently assessed to determine whether policy requires particular types of contracts to be treated as unenforceable. However, such an approach does not mandate the court to take a different view as to whether one particular contract or another may be regarded as unenforceable by virtue of being in breach of the same statutory provision by reference to, for example, the severity of the breach concerned or the adverse consequences for the parties. The proper approach, in my judgement, is statute specific but is not case specific.”

The Court went on to set out the issues to be considered as follows:

- 1. … [W]hether the relevant legislation expressly states that contracts of a particular class or type are to be treated as void or unenforceable.
  - (para. 8.9)
  2. Where, however, the relevant legislation is silent … the court must consider whether the requirements of public policy … and the policy of the legislation concerned, … gleaned from its terms, … require that, in addition to whatever express consequences are provided for in the relevant legislation, an additional sanction or consequence in the form of treating relevant contracts as being void or unenforceable must be imposed. (para. 8.9)
  
  3. In assessing the criteria … the court should assess at least the following matters: -
  - - 3(a) Whether the contract in question is designed to carry out the very act which the relevant legislation is designed to prevent (para. 8.32)
      
      3(b) Whether the wording of the statute itself might be taken to strongly imply that the remedies or consequences specified in the statute are sufficient to meet the statutory end. (para. 8.34)
      
      3(c) Whether the policy of the legislation is designed to apply equally or substantially to both parties to a relevant contract or whether that policy is exclusively or principally directed towards one party. Therefore, legislation which is designed to impose burdens on one category of persons for the purposes of protecting another category may be considered differently from legislation which is designed to place a burden of compliance with an appropriate regulatory regime on both participants. (para. 8.37)
      
      3(d) Whether the imposition of voidness or unenforceability may be counterproductive to the statutory aim as found in the statute itself. (para. 8.39)
  4. The aforementioned criteria or factors are, for reasons which will become apparent, sufficient to resolve this case. However, the following further factors may well be properly taken into account in an appropriate case:-
  - - 4(a) Whether, having regard to the purpose of the statute, the range of adverse consequences for which express provision is made might be considered, in the absence of treating relevant contracts as unenforceable, to be adequate to secure those purposes. (para. 8.44)
      
      4(b) Whether the imposition of voidness or unenforceability may be disproportionate to the seriousness of the unlawful conduct in question in the context of the relevant statutory regime in general. (para. 8.47)
  5. Doubtless other factors will come to be defined as the jurisprudence develops.

At para 7.3. of the judgment the Court set out what kind of illegality it was concerned with: “The aspect of the jurisprudence with which the Court was concerned was the allegation that relevant contracts are illegal, and thus, unenforceable by reference to statute.”

At para 7.4 of the judgment the Court said that“the contracts which are at the heart of these proceedings are not, in and of themselves, unlawful in any way. They are contracts to lend money on terms and contracts to provide guarantees or security to back up those lending transactions.”

In theQuinncase, the contracts which on their face were perfectly lawful were rendered illegal because they were entered into in breach of the Market Abuse Regulations 2005 (SI 342 of 2005) and/or section 60 of the Companies Act, 1963.The Court went on to say:“If, for example, identical transactions, including guarantees and security, were entered into for the simple and straightforward purpose of permitting Quinn entities to purchase shares in the ordinary way in a company wholly unconnected with Anglo, then no question of illegality would arise.”

Clarke J then went on to examine in what circumstances an illegal contract might be enforced. He summarises the principal criteria at para 8.55 as follows:

1. The first question to be addressed is as to whether the relevant legislation expressly states that contracts of a particular class or type are to be treated as void or unenforceable. If the legislation does so provide then it is unnecessary to address any further questions other than to determine whether the contract in question in the relevant proceedings comes within the category of contract which is expressly deemed void or unenforceable by the legislation concerned. (para. 8.9)

2. Where, however, the relevant legislation is silent as to whether any particular type of contract is to be regarded as void or unenforceable, the court must consider whether the requirements of public policy (which suggest that a court refrain from enforcing a contract tainted by illegality) and the policy of the legislation concerned, gleaned from its terms, are such as require that, in addition to whatever express consequences are provided for in the relevant legislation, an additional sanction or consequence in the form of treating relevant contracts as being void or unenforceable must be imposed. For the avoidance of doubt it must be recalled that all appropriate weight should, in carrying out such an assessment, be attributed to the general undesirability of courts becoming involved in the enforcement of contracts tainted by illegality (especially where that illegality stems from serious criminality) unless there are significant countervailing factors to be gleaned from the language or policy of the statute concerned. (para. 8.9)

Applying the criteria in theQuinncase the Court needs to examine whether the 2003 Act expressly renders a contract of employment in circumstances where the employee requires but does not have a work permit, void or unenforceable.

The long title to the 2003 Act says that one of the objectives of the Act is to prohibit the employment of non-nationals. The long title reads as follows:

- AN ACT TO PROVIDE FOR THE GRANT OF EMPLOYMENT PERMITS IN RESPECT OF NON-NATIONALS, TO PROHIBIT THE EMPLOYMENT OF NON-NATIONALS WHO DO NOT HAVE SUCH PERMITS, TO PROVIDE FOR THE GRANT OF SUCH PERMITS IN RESPECT OF NATIONALS OF CERTAIN STATES UNDER CERTAIN CIRCUMSTANCES AND TO PROVIDE FOR RELATED MATTERS.

Section 2(1) prohibits the employment of a foreign nationals from being in employment except in accordance with a work permit granted by the Minister in accordance with section 8 of the 2006 Act.

Section 2(1) reads as follows:

- 2(1) A foreign national shall not —
  - - ( a ) enter the service of an employer in the State, or
      ( b ) be in employment in the State,

Section 2(3) makes the contravention of 2(1) a criminal offence.

Section 2(3) reads as follows:

- 2(3) A person who contravenes subsection (1), (2) or (2C) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable—
  - - ( a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
      ( b) if the offence is an offence consisting of a contravention of subsection (2) or (2C) or a failure to take the steps specified in subsection (2B) , on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

Up until 2014 when the 2003 Act was amended by way of the Employment Permits Amendment Act 2014 it was a strict liability offence for a non- national to work without a work permit. The 2014 Act inserted a new provision into the 2003 Act – section 2(3A) which provided a defence to prosecution if the non-national could show that they took all reasonable steps to comply.

The 2014 amendments were brought in partly to ameliorate the harshness of the High Court decision inHusseinand the long title sets out its objectives as follows:

- AN ACT TO AMEND THEEMPLOYMENT PERMITS ACT 2003, TO PROVIDE A DEFENCE TO A FOREIGN NATIONAL IN CERTAIN PROCEEDINGS UNDER THAT ACT, TO PROVIDE FOR CIVIL PROCEEDINGS TO RECOMPENSE CERTAIN FOREIGN NATIONALS FOR WORK DONE OR SERVICES RENDERED IN CERTAIN CIRCUMSTANCES; TO AMEND AND EXTEND THEEMPLOYMENT PERMITS ACT 2006; TO MAKE FURTHER PROVISION FOR THE GRANT OF EMPLOYMENT PERMITS; TO AMEND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000; TO AMEND THE IMMIGRATION ACT 2004; TO AMEND THE ALIENS ORDER 1946; TO AMEND THETAXES CONSOLIDATION ACT 1997; AND TO PROVIDE FOR RELATED MATTERS.

The other ameliorative effect of the 2014 Act was to amend the 2003 Act whereby a non-national working in the State without a work permit could get the protection of the Court to enforce certain rights, in other words the contract, otherwise unenforceable, could be made enforceable by virtue of section 2B.

Section 2B reads as follows:

- Civil proceedings
  
  2B. (1) This section applies to a foreign national who, in contravention of section 2(1) —
  - - (a) had entered the service of an employer in the State, or
      (b) was in employment in the State,
      without an employment permit granted by the Minister under section 8 of the Act of 2006 that was in force and who is no longer in such service or employment.
  (2) Where an employer referred to in section 2(1)(a) or, in the case of employment referred to in section 2(1)(b), a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b) —
  - - (a) has not paid a foreign national to whom this section applies an amount of money in respect of work done or services rendered during the period for which the foreign national was in the employment or service without an employment permit, or
      (b) has paid an amount of money that was, having regard to the work done or services rendered during such period, an insufficient amount of money,
  the foreign national or, in accordance with subsection (5), the Minister, may institute civil proceedings for an amount of money to recompense the foreign national for such work done or services rendered.
  
  (3) Where, in proceedings under subsection (2), a court before which the proceedings are brought is satisfied that the foreign national took all steps as were reasonably open to him or her to comply with section 2(1), it may make an order that in recompense for such work done or services rendered an amount of money shall be paid to the foreign national by the employer who employed the foreign national, or, as the case may be, the person referred to in section 2(1A)(a) or the contractor referred to in section 2(1A)(b).
  
  (4) The amount of money to be paid, pursuant to an order under subsection (3), to a foreign national in recompense for work done or services rendered shall be —
  - - (a) in a case where no amount of money was paid in respect of work done or services rendered during the period for which the foreign national was in the employment without an employment permit, an amount equal to the greater of —
      - (i) an amount calculated by reference to the national minimum hourly rate of pay, or
        (ii) an amount equal to an amount of pay for the work done or services rendered which is fixed under or pursuant to any enactment,
        or
      (b) in a case where an amount of money was paid in respect of work done or services rendered during the period for which the foreign national was in the employment without an employment permit, an amount equal to the difference between —
      - (i) the amount paid, and
        (ii) an amount equal to the greater of —
        (I) an amount calculated by reference to the national minimum hourly rate of pay, or
        (II) an amount equal to an amount of pay for the work done or services rendered which is fixed under or pursuant to any enactment.
  (5) The Minister may, at his or her discretion, institute civil proceedings under subsection (2) in the name, and on behalf, of the foreign national with the consent of that foreign national.
  
  (6) not relevant
  (7) not relevant
  (8) not relevant
  
  (9) Without prejudice to subsection (6), proceedings under this section shall not be brought where —
  - - (a) the foreign national, in respect of any right of action he or she may have and whether such right of action arises pursuant to any enactment or otherwise, has —
      - (i) instituted proceedings in relation to the same, or substantially the same, work done or services rendered as referred to in this section, or
        (ii) otherwise commenced an action or other claim in relation to the same, or substantially the same, work done or services rendered as referred to in this section,
        
        and
      (b) those proceedings have, or that action or claim has, not been finally determined or have, or has, not been discontinued before being finally determined.
  (10) Where —
  - - (a) before the day on which this section comes into operation a foreign national had instituted proceedings or otherwise commenced an action or other claim for work done or services rendered that are, or is, wholly or substantially in respect of work done or services rendered —
      - (i) during the period in which the foreign national was in the service of an employer in the State, or in employment in the State, without an employment permit referred to in subsection (1), and
        
        (ii) for which he or she has not been paid or has been paid an insufficient amount of money,
        and
      (b) the foreign national —
      - (i) has, on or after the day on which this section comes into operation, discontinued the proceedings, action or claim before those proceedings are, or that action or claim is, finally determined, or
        
        (ii) has not, when those proceedings are, or such action or claim is, finally determined, been awarded any amount of money in recompense for such work done or such services rendered,
  the foreign national may institute proceedings under this section not later than 2 years from the day on which the proceedings were, or the action or claim was, discontinued or on which such determination was made in respect of such work done or such services rendered during a period of 6 years prior to the day on which he or she ceased his or her employment or service with the employer, a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b).
  
  (11) In proceedings instituted by the Minister under this section the court shall not award costs in favour of the foreign national but may award costs in favour of the Minister.
  
  (12) not relevant
  
  (13) In proceedings instituted by the Minister pursuant to subsection (5), the foreign national shall not be liable for costs but the court before which the proceedings are brought may order that any costs that might otherwise have been awarded against the foreign national shall be paid by the Minister.
  
  (14) Subsection (5) shall not be in derogation of any right of a foreign national to institute proceedings under this section on his or her own behalf.
  
  (15) In this section —
  ‘ Act of 2006 ’ means theEmployment Permits Act 2006;
  
  ‘ enactment ’ has the meaning assigned to it by the Act of 2006;
  
  ‘ national minimum hourly rate of pay ’ has the meaning assigned to it by the Act of 2006.

Section 2C then goes on to set out the jurisdiction of the various civil courts in relation to the amount of the claim.

Section 2C reads as follows:

- Section 2B: supplemental provisions
  
  2C. (1) The District Court has jurisdiction to hear and determine proceedings under section 2B where the amount claimed in the proceedings does not exceed € 15,000.
  
  (2) The jurisdiction of the District Court under this section shall be exercised by the judge of the District Court for the time being assigned to the district court district in which the person against whom the proceedings are brought resides or carries on business.
  
  (3) The Circuit Court has jurisdiction to hear and determine proceedings under section 2B where the amount claimed in the proceedings does not exceed € 75,000.
  
  (4) The jurisdiction of the Circuit Court shall be exercised by the judge of the Circuit Court for the time being assigned to the circuit in which the person against whom the proceedings are brought resides or carries on business.

The argument made by the Complainant’s representative is that Section 2B should be interpreted as to permit a non-national without a work permit to pursue statutory employment rights through the statutory bodies set up to deal with employment rights given that civil proceedings are not defined in the Act and that the use of the terminology is merely to distinguish between civil and criminal proceedings. The Court does not agree that this is a correct interpretation.

- “civil proceedings”

The expression “civil proceedings” inserted into the 2003 Act refers to proceedings before a court exercising the normal civil jurisdiction. In law the Labour Court is not such a Court. It is a quasi-judicial tribunal exercising a specialist jurisdiction in respect to statutory employment rights. It is clear from a reading of Section 2B, in conjunction with Section 2C of the 2003 Act, as amended, that the jurisdiction in proceedings referred to in Section 2B is conferred on the District Court and the Circuit Court, depending on the value of the claim. The High Court would also have jurisdiction in claims that are above the monetary jurisdiction of the Circuit Court. The Act as amended does not purport to confer a jurisdiction on the High Court as, under the Constitution that Court has inherent jurisdiction in all matters, civil and criminal.

The Court is of the view that the amendment to the Employment Permits Act was intended to allow a worker who cannot claim wages due and owing because his or her contract is void or unenforceable can obtain an award ofquantum meruit.That is a common law remedy, available where work was performed pursuant to a contract that both parties believed was valid but turned out to be void. Such an order could only be made by an ordinary court and not by a statutory tribunal. That is clear from Section 2C of the amended Act.

Accordingly, the Complainant has no remedy before the Labour Court under Section 2B of the Employment Permits Acts.

Applying limb 1 of theQuinntest, on the basis of a literal interpretation of the Act, the Complainant’s contract of employment is enforceable only in the limited circumstances provided for by Section 2B i.e. only in so far as a plaintiff could seek, in civil proceedings in the ordinary courts, to recover monies for unpaid work or services.

The proceedings before the Labour Court, as a statutory employment law tribunal, are not civil proceedings, as defined. Therefore, the Court is satisfied that, otherwise and in the context of the claims before the Court under employment statutes, the contract is unenforceable.

Determination

For all of the reasons set out herein the Court finds that the contract of employment relied upon by the Complainant’s to ground his claim under the Redundancy Payments Act, 1967 was tainted with illegality and therefore unenforceable in law. Consequently, he cannot maintain a claim under the Act. In these circumstances, the Respondent’s appeal is allowed, and the decision of the Adjudication Officer is set aside.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
TH______________________
4 December 2019Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.