ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015406

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/08/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant attended. The Respondent did not. The Respondent was notified correctly.

The Complainant states that he worked 15 days with the Respondent and confirmed that all the employees get paid cash. The Complainant did not have a work permit. It was agreed with the Respondent that they would use the money from the work he did to get his work permit/visa to legally work with the Respondent. The Complainant was never paid for all the work he did.

Summary of Complainant’s Case:

The Complainant states that the Respondent said he would pay him when Ramadan was over. He got annoyed when he didn’t get paid and the Respondent told him he was fired on 20th of June 2018. He thinks this was a Wednesday.  The Complainant states the he got cash of €150 on the 1st week. The second week he got €180. He asked him about the rest of the money. He states that he was told that he must wait until Ramadan is over. He claims he should have got €360 additionally.

The Complainant states that he was supposed to get €600 for doing the website and social media and taking pictures. The Complainant states that he has pictures and proof that he did the work.  He got no contract or written documents from the Respondent regarding his terms, payment, payslip etc. The Complainant states that he is owed €600 for the website and €360 for work done.  The Complainant states that he is staying in a hostel and that the Respondent got other staff there to work for him also. 

The Complainant states that he got his work permit yesterday.  The Complainant states that one of his friends from the hostel that works there stated that the Respondent had said that he was attending the hearing with his lawyer, he therefore states that he must have known about the hearing.

Summary of Respondent’s Case:

The Respondent did not attend on the day but was notified of the hearing.

Findings and Conclusions:

The Complainant had applied for his work permit from Department of Jobs, Enterprise & Innovation and he alleges that the Respondent agreed that the money he would earn from his employment with him initially would cover the cost of same and was fully aware that he did not have a permit.  Because he did not have a valid work permit he was not working legally in the State.

I have considered the case law of Hogan J’s judgement in the Hussein v The Labour Court and the implications of the Supreme Court appeal decided as published under reference [2015] IESC 58.

In the High Court, Mr. Justice Hogan found the employee complainant was employed in the absence of a work permit and therefor the contract of employment was illegal.

In the appeal of the judgement of Hogan J, the Supreme Court found that the High Court erred in finding as a fact that the absence of a work permit rendered the contract of employment illegal. The Supreme Court held that the scope of Mr. Justice Hogan’s jurisdiction was limited to examining the lawfulness of the two Labour Court decisions, which both concerned determinations that the Respondent pay the Applicant the sums of money as ordered by the Rights Commissioner for its breaches under the relevant legislation. The Supreme Court held that the two decisions of the Labour Court were not concerned with the merits or lawfulness of the decision of the Rights Commissioner and that the Rights Commissioner’s decision was not the subject matter of the judicial review before the High Court. The Supreme Court allowed the appeal and although it found it was unnecessary to examine the question of illegality of an employment contract in the case in hand, Mr. Justice Murray provided some useful comments, albeit obiter in his judgement. These related to the principal of proportionality.

Since the Hussein decision there has been an amendment to the Employment Permits Acts 2003.   There were introduced to provide further protection to non-national employees that are employed without a valid work permit. There have been no amendments to the Unfair Dismissals Acts. Section 8(11) of the Unfair Dismissals Acts allows an employee to maintain a claim of unfair dismissal despite the contract of employment being tainted with illegality by reason of breaches of the income tax legislation only.

I have considered the current approach of the UK courts for guidance. The Courts of England and Wales have issued judgement in Hounga -v- Allen [2014 UKSC 47] regarding illegal contracts and the effect on statutory employment claims. The Court held that the inextricable link test is the most appropriate test to be applied. Lord Wilson stated

“thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident it requires quite extreme circumstances before the test will exclude a tort claim”.

Considering the illegality of contract as the employee had no work permit.  The parties entered this contractual relationship setting terms of payment in turn for work done.  The Respondent was in agreement that the money earned from the work in turn would facilitate and pay for the employees work permit.

The Respondent was aware that the Complainant did not have a valid permit and that he was taking reasonable steps to get his permit and had received same by the hearing date. 

The Payment of Wages act defines a contract of employment as follows:

Whether the contract is express or implied and if express, whether it is oral or in writing;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer.

Contract of employment

“means, subject to subsection (3)

•        A contract of service or apprenticeship, or

•        Any other contract whereby

• an individual agrees with another person personally to execute any work or service for that person, or

• an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract).

1. Whether the contract is express or implied and, if express, whether oral or written.

I take into account here the “inextricable test” which is whether or not the claim is so closely connected or inextricably linked with their own illegal conduct that the court could not allow them to recover without appearing to condone that conduct. 

In this occasion this test has been passed as both parties were aware of the absence of the permit and a contract was entered in full knowledge of this.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and the Payment of Wages Act, 1991.

The Complainant states in his original form that he was due €520 but following discussion it was established that he was due €360.

1. CA-00020050-001: I find that the claim succeeds, and the Complainant is to be awarded €360 based on the claim that the Complainant did not receive payment for the hours that he worked.
2.  
3. CA-00020050-002: I find that the claim succeeds, and the Complainant is to be awarded €600 based on the claim that the complainant did not receive payment for designing and developing a website.

Dated:   24th July 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery