RPD1917

FULL RECOMMENDATION

RPA/17/29

DETERMINATIONNO.RPD1917

ADJ-00006896 CA-00009334-005

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 -

PREETI 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-00006896CA-00009334-005.

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 number ADJ-00006896, CA-00009334-005 of an Adjudication Officer in a complaint by Ms Preeti Khoosye against her 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 the complaints to be well founded and directed that the Respondent pay the Complainant her statutory redundancy entitlements.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Preeti 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 her 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 Limtied 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 Certiorai 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. The Complainant arrived in Ireland on 12th December 2009. She commenced employment with the Respondent as a waitress on 4th February 2011. She arrived in Ireland on a student visa and therefore worked part-time while studying and worked full-time during student holidays, in accordance with her visa restrictions. Her visa expired on 4th June 2014 and she continued in full time employment with the Respondent. In February 2015 she 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 Complainants were granted “Stamp 4S” permission to stay in Ireland, which allows her to take up employment without a requirement to hold an employment permit.

In July 2016 she was informed by the Respondent that the hotel was closing, and her 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 she could not enforce her 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 her failure to furnish proof of her legal right to work within the State. He said that the Respondent had afforded her every opportunity to rectify her visa situation however, she 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 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 she had ample opportunity to regularise her 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 her statutory redundancy payments, amounting to €4,260.18, 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 her immigration status and therefore obtain employment permits and did so as soon as she became aware of such steps available to her.

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 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 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 Mc Cormack contended that it was clear from that reasoning, that Hogan J found that the contract of employment inHusseinwas illegal because, and only because, there is 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 her 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 Complainants 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 her employment rights arising from the existence of that contract.

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

Ms Preeti Khoosye, The Complainant

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

The witness told the Court that she came to Ireland from Mauritius in December 2009 on a Stamp 2 student visa. This allowed her to work for 20 hours per week during term time and 40 hours per week during holidays. After her visa expired in June 2014 she was working 36 hours per week. She commenced working for the Respondent in January 2011 as a waitress in the café in the hotel and her manager was LK. She said that lots of other managers came and went. She told the Court that she met the Respondent principal, Ms Theresa Andreucetti, when she commenced employment but had very little dealings with her thereafter. She was paid every week into her bank account and received weekly payslips until March 2016. From March 2016 until 1^stAugust 2016, when her employment terminated, she was paid by cheque and received no payslips. She told the Court that she was given no written contract of employment by the Respondent at any stage.

She said that she was working full-time after her visa expired in June 2014, 30-40 hours per week but usually 36 hours. She was still paid through the payroll into her bank account, she still received payslips, her hourly rate of pay was the same and her duties were the same in the hotel’s café.

She told the Court that in January 2015 she went to a solicitor to get assistance with her visa situation. An application for a visa for herself and her husband was made. She said she gave the solicitor documentation to assist her application. This included bank records and an employment reference from the Respondent. The reference stated that she was employed by the Respondent and would have continued employment should she obtain a visa. She continued working for the Respondent after her visa application was submitted. She told the Court that, following a delay due to a High Court case (involving similar applications to her own) in the intervening period, she obtained a 4S visa in February 2019 which permits her to work fulltime until 2021.

The witness said that in March 2016, a NAMA official came to the building and closed the hotel. She said that everything was closed for 2 days and there was no advanced notice. She went back to work after 2 days doing the same job on the same hours but from that point was paid weekly on a Friday by cheque handed to her by her manager LK and received no payslips from that point. She said that the cheques were the Respondent company’s cheques and were signed by LK. She said that because she believed that the Respondent company was in trouble she cashed her weekly cheque in her bank branch which was local to the hotel. She said that there was no difficulty in doing this and she was just required to produce her passport. She said that she subsequently sought records from the bank to confirm the cheque transactions but was referred by the bank back to her employer.

The witness said that on 29^thJuly 2016 there was a case in the High Court, and she heard on the news afterwards that the hotel was to be closed on 1^stAugust. She said that LK confirmed it would be closing. She said that she worked on the last day and got her final payment by cheque from LK with no payslip during the first week of August. She said that she never received a P45 and said that the purported P45 document opened to the Court by the Respondent was never sighted by her before seeing it in the course of her employment rights proceedings. She said that she had received a P60 by email from LK in January 2016. She had previously received a 2014 P60 also by email in January/February 2015.

The witness said that she sought to regularise her tax affairs in August/September 2016, and she contacted the Revenue Commissioners. She said that Revenue told her that she was never registered with them. She said that they told her that they could not identify her through the PPS number that she provided to them. She subsequently obtained the services of a tax advisor who assisted her in regularising her tax matters.

The witness said that she was given paid holidays in 2015. She said that she did not receive paid holidays in 2016 and said that she was told by LK that she was not entitled to holidays as she didn’t have a work visa. She confirmed that she was not paid for outstanding holidays when she finished employment in August 2016. She said that she worked on Sundays throughout her employment and was never paid anything extra for it. She said that the last Sunday she worked was 31^stJuly 2016 from 7.30am – 1.00pm.

The witness told the Court that she asked LK on her last day on 1^stAugust 2016 as to whether or not she would receive a redundancy payment. She said that LK responded that she was not entitled to a redundancy payment as she did not have a work visa. She told the Court that she was aware that some of her colleagues had transferred to another restaurant owned by Ms. Andreucetti and some received redundancy payments. The witness said that she was given to understand that she was not offered alternative employment or redundancy because she had no work visa.

Under cross-examination, the witness repeated that she had never received the written contract of employment document opened to the Court and purported to have been given to her by a Respondent manager, but she confirmed that the terms set out in the document corresponded with her terms of employment. She confirmed that she never requested a written contract from the Respondent.

The witness confirmed that after her visa had expired in June 2014, the Respondent enquired of her as to her visa situation. She confirmed that she told the Respondent that she had engaged a solicitor and was making an application for a visa. She confirmed that the Respondent had requested documents from her to verify the situation and she had given the Respondent copies of letters that her solicitor had received from the Irish Naturalisation and Immigration Service (INIS) confirming receipt of her visa application.

It was put to the witness that the representative from NAMA did not attend at the hotel premises until 5^thApril 2016, and not in March as stated by the witness. In response the witness stated that it was quite long ago, and she could not recall the exact date.

It was put to the witness that after her employment was terminated by the Respondent in March 2016, she had pleaded a hardship case to Ms. Andreucetti to be taken back and given work and that this ultimately happened. The witness denied this and stated that after NAMA appeared, she went back to work and was on the roster as normal.

When asked about the period of time that elapsed between June 2014, when her visa expired, and January 2015, when she engaged a solicitor to deal with the visa matter, the witness stated that she had spent time seeking to persuade the college, where she was a student, to fund the costs of the visa, as it was a considerable cost. She said that she was unsuccessful in this regard.

Theresa Andreucetti, the Owner of the Hotel

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

The witness was asked about P60’s and P45’s in relation to the Complainants. 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 P45’s for the Complainants, opened up to the Court, were generated by the Respondent’s payroll function. She said that the P45’s were uploaded to the Revenue Commissioners and the copies were given to the Complainants.

The witness confirmed that it was her understanding that the Complainant’s visa expired in June 2014 and that her husband’s visa expired in October 2014.

The witness said that the Complainant’s visa expired in June 2014 and that she and LK had had many conversations with Complainant about the visa situation with her. She said that Complainant and her husband, who also worked for the Respondent, were pleading for time to sort the visa situation and were trying to get their language school to put up the funds to cover the visa costs, however those efforts were unsuccessful The witness said that she was told by the Complainant that she had gone to a solicitor to apply for a visa. She told the Court that on every occasion she sought to gain details of her employment status, the Complainant insisted that the matter was in hand and that her solicitor was actively seeking a visa and that while her application was under consideration by INIS she was allowed to remain in Ireland and that the solicitor had told her that she could continue working while her 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 the Complainant did not have a visa or permission to work and it was unlawful to continue her in his employment. In addition, she said that she believed that the Complainant had given her false information when she told her that her solicitor had said that she could work while the visa application was being processed.

She said that that LK prepared a P45 for her. She said that after the Complainant was let go, she came back and asked for work because she had no employment and no money. She said she 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 her own tax affairs. She believed that she could not be an employee as she 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 she didn’t have a visa, therefore she was not made redundant. In relation to minimum notice, the witness said that she had been in court and she 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 said that she could not understand how there would have been a need for the Complainant to work on Monday 1^stAugust as the hotel was being cleared out and closing that day.

She confirmed there was an open offer for staff to take up alternative employment with another business 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 Complainants 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 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 her visa situation. The witness said that she terminated the employment of the Complainant because she could not legally work. It was because she did not have a visa. She said that the Complainants told her that she was allowed to work while her visa application was in process, but the witness 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 the Complainant was not allowed to work while applying for a visa. She said that she was most concerned about employing workers who were required to have a visa, but did not, therefore she had made every effort to ascertain the Complainant’s status. She said that she had been following up with the solicitor for months and months and the solicitor 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 2014.

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 1, sets 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 her claim under the Redundancy Payments Act, 1967 was tainted with illegality and therefore unenforceable in law. Consequently, she 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.