Complainant

Respondent

Parties

Serdar Goksel  Sen

Specialised Air Products Ltd

Representatives

  Self

Alastair Purdy, Alastair Purdy & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054408-001

12/09/2021

The Complainant referred his complaint to the Director General of the WRC on 12th September 2021 alleging that he was discriminated against by reason of his religion and his race. He also claimed that the Respondent treated him unlawfully by discriminating against him in getting a job, in conditions of employment and that he was victimised.

The Respondent denies the claims.

This complaint was heard in conjunction with ADJ-00034976.

In his complaint form, the Complainant alleged that that he was discriminated against by reason of his religion and his race. He also claimed that the Respondent treated him unlawfully by discriminating against him in getting a job, in conditions of employment and that he was victimised.

In the complaint form, the Complainant alleged also that his complaint refers to a contravention of the Transfer of Undertakings Regulations. He named Specialised Air Products Limited as the Transferor. The Complainant did not provide any further details with regard to the alleged transfer of undertakings or the alleged contravention.

In the complaint form, the Complainant submitted that he is a Turkish citizen living in Ireland since 28th May 2019. He came to Ireland with a critical skills employment permit to work as a compressed air service engineer.  Due to the pandemic and payment issues, he lost his job on 2nd June 2020. The Complainant’s colleague, Mr. Bermingham, started to deal with air compressors before the Complainant had lost his job. The Complainant was always in touch with Mr. Bermingham and helped him with the new business. When the Complainant lost his job, Mr. Bermingham offered him employment/partnership in his company so the Complainant would not have to return to his home country. The Complainant submitted that Mr. Bermingham was aware that the Complainant needed to have a work permit to be able to work legally.

The Complainant further submitted that he had all his gear, tools and spare parts to repair and service air compressors. These were sent to him by his father from Turkey. The Complainant asserts that Mr. Bermingham told him to bring his stuff to the workshop as capital investment so when they sorted out the work permit situation, the Complainant would be legally his partner. The Complainant started working for Mr. Bermingham. Because it is illegal to be paid without a work permit, the Complainant asserted that Mr. Bermingham told him to hold on until he got the permit and then he would be paid whatever was owed to him. Meanwhile, to be able to survive, the Complainant applied for the Jobseeker’s Benefit and rent support from the Department of Social Protection. The Complainant submitted that he started to help Mr. Bermingham a few days a week, but it then turned into a full-time job.

The Complainant submitted that Mr. Bermingham owns a packaging company, Specialised Tapes Ltd., and the Complainant started working for that company which traded as Specialised Air Products Ltd.

The Complainant submitted that whenever he asked Mr. Bermingham about his work permit, Mr. Bermingham would not deal with the matter. The final excuse was that the Complainant could not get the permit through the old company and a new one needed to be set up. The Complainant agreed.

In February 2021, Mr. Bermingham set up a new company and applied for a work permit for the Complainant in May 2021. Due to Covid-19, the Complainant got a reply from the Department of Enterprise, Trade and Employment only 10 days before the submission of his complaint to the WRC. His application was refused because neither the wage, the company nor other specifications matched the permit requirements.  The Complainant submits that it was all done so Mr. Bermingham can learn the job from him and get on with the business with bigger customers after getting rid of him.

The Complainant submitted that, because he is well known in the industry, he brought his own customers to Specialised Air Products Ltd. He believed that he worked for his own company.

The Complainant submitted that he bought and paid for a company van but Mr. Bermingham registered it in his own name and transferred it to his company as he used the fear factor that the Complainant could not own a commercial vehicle while jobless. The Complainant also made allegations in relation to non-reporting of certain matters to the Revenue Commissioners by Mr. Bermingham.

The Complainant submitted that after he had received notification from the Department of Enterprise, Trade & Employment refusing his permit application, he met with Mr. Bermingham and asked him what to do. Mr. Bermingham said nothing but changed the lock to the workshop and cancelled the fuel card he had provided the Complainant with. Mr. Bermingham also kept the Complainant’s tools and spare parts.

The Complainant asserts that Mr. Bermingham used his situation as a non-EU citizen and his religion was mentioned many times.

The Complainant submits that Mr. Bermingham gave him €200-300 a couple of times so he could buy diesel before he got a diesel card and a few times he gave the Complainant money to pay rent.

In response to the Respondent’s written submission, the Complainant furnished an additional submission on 29th August 2022.

With regard to the matter of the correct respondent, the Complainant submitted that “technically” he was never employed by Specialised Tapes Ltd. or Specialised Air Products Ltd. as his work permit has never been issued.

The Complainant furnished copies of documents from Specialised Air Products showing that work had been done for customers of the company.

Regarding the Respondent’s assertion that there is no valid existing contractual relationship between the Complainant and the Respondent, the Complainant agreed. He submitted that Mr. Bermingham told the Complainant that he would set up a new company and separate the operations and invoices from Specialised Tapes Ltd. so his other unofficial partner would not benefit from the compressors business. The Complainant furnished copies of “Job Cards” written and signed by Mr. Bermingham before setting up Specialised Air Products Ltd.

Regarding the matter of comparator, the Complainant submits that he was “doing as good as he can”.

The Complainant confirmed that he was not formally employed but that he helped Mr. Bermingham on the understanding that he would become a business partner. The Complainant confirmed that he was furnished with a contract of employment on 11th May 2021 by Specialised Air Products Ltd. The Complainant also confirmed that Mr. Bermingham issued a letter to the Department of Social Protection dated 20th May 2021 confirming that the Complainant accepted a job offer with Specialised Air Products Ltd.

The Complainant confirmed that the work permit application was refused, and he blamed Mr. Bermingham for not sending all relevant documents with the application. He also confirmed that on 31st August 2021 he sent a text message to Mr. Bermingham stating he was finished working and that he would be taking up employment elsewhere.

In his written submission, the Complainant also asserted that Mr. Bermingham started to make jokes about the Complainant’s religion around the time when the Complainant returned to his own country to have his son circumcised. The Complainant said in his submission that during summer of 2021 Mr. Bermingham went “beyond the line”.  He further asserted that on the New Year’s night of 2021, the Complainant and his friends and Mr. Bermingham and his friends were in the workshop and Mr. Bermingham made racist jokes, so they had to leave the warehouse.

Summary of the Complainant’s direct evidence and cross-examination

At the adjudication hearing, the Complainant confirmed that he did not have a work permit at the relevant time. He said that Mr. Bermingham was always joking about his religion, he said that there are “hundreds of examples”, however, he could not provide any specifics. He said that at some stage Mr. Bermingham called his little son a “Turkish bastard”. He said that Mr. Bermingham has many Gardaí friends, and he told the Complainant that he would have him deported.

With regard to victimisation, the Complainant said that he is a victim, left with nothing, his tools etc. were all left in the workshop.

In relation to the allegation that the Respondent discriminated against him in conditions of employment, the Complainant said the matter relates to the work permit application and the non-payment of money owed to him.

In cross-examination, the Complainant said that he could not give any examples of discrimination, dates, comparators, etc. It was put to the Complainant that he resigned voluntarily on 31st August 2021, and he confirmed same and added that he thought he was working for himself.

It was put to the Complainant that Specialised Air Products Ltd. has no other employees and he agreed.

The Respondent’s solicitor submits as follows.

The Respondent asserts that there is no valid existing contractual relationship between the Complainant and the Respondent.

The Complainant has not listed a comparator.

By way of background, the director of the Respondent Company, Mr. Michael Bermingham, and the Complainant had worked together previously at Air Energy. Mr. Bermingham resigned in February 2020 whilst the Complainant did so in or around May 2020.

In May/June 2020 the Complainant began assisting Mr. Bermingham in his air compressor business but was not formally employed at that time. On the 8th September 2020, the Complainant sent a text message to Mr. Bermingham in which he stated he was awaiting his work permit. A copy of the message was exhibited at the adjudication hearing.

In or around February 2021, Mr. Bermingham set up the Respondent company, Specialised Air Products Limited, which specialises in air compressors. The Respondent opened a bank account for the new company and also purchased a BMW and a company van. The company van was initially registered in Mr Bermingham’s name and was later re-registered in the Respondent’s company name. The Complainant occasionally used Mr. Bermingham’s spouse’s car, an Opel Insignia, for carrying out work for the Respondent.

On 11th May 2021, the Respondent issued the Complainant with a contract of employment. The contract was issued for the purpose of assisting the Complainant in obtaining a work permit which at that time had yet to be approved. Copies of the contract of employment and the work permit application form were exhibited at the hearing.

On 20th May 2021, Mr. Bermingham sent a letter to the Social Welfare Office confirming that the Complainant had accepted the job offer and they are now waiting for the Complainant’s work permit to be approved. A copy of the letter was exhibited at the hearing.

In August 2021, the Complainant was refused his work permit. On 31st August 2021, the Complainant sent a text message to Mr. Bermingham stating he was finished working and that he would be taking up employment elsewhere. At this time the Complainant’s employment terminated. Notably at this time, no complaint or issue was made by the Complainant against the Respondent and/or Mr. Bermingham personally. A copy of the text message was exhibited at the hearing.

The Complainant also informed Mr. Bermingham that he wanted to leave the company and split the assets which consisted of tools, parts and objects in the company’s warehouse, even though he was never a shareholder or owner of the company. Mr. Bermingham wanted to keep the company as a going concern.

On 9th September 2021, Mr. Bermingham received a phone call from an employee who informed him that the Complainant had entered the company warehouse and had started removing tools and parts and placing them into the Opel Insignia. The Complainant returned to the warehouse at approximately 7:30pm to remove more parts. He was unable to gain access into the warehouse and made a phone call to another employee informing them of this. Mr. Bermingham changed the locks to the company warehouse and the company office. Between the 10th and the 15th September 2021, Mr. Bermingham received threatening messages from the Complainant. A copy of the messages was exhibited at the hearing.

Before leaving the company, the Complainant made contact with clients and encouraged them to no longer work with the Respondent. The Complainant also closed down the company’s social media platforms. A copy of the email to the clients was exhibited at the hearing.

An incident arose where the Complainant switched the ownership of the company BMW car without authorisation and/or agreement to himself by changing the name of the owner on the company logbook, this occurred four weeks prior to the Complainant leaving the company. The Complainant also took possession of the Opel Insignia. Mr. Bermingham reported this to the Gardai at Roxboro Garda Station Limerick and this incident has since been dealt with. The Opel Insignia has since been returned to the Respondent but the BMW remains missing and there is an ongoing investigation into this matter.

On 12th September 2021, the Complainant lodged a complaint with the WRC.

On 21st September 2021, the Complainant emailed the WRC in which he alleged Mr. Bermingham made ‘jokes’ about the Complainant being of Muslim faith, made attempts to deport the Complainant and he described an incident where he was allegedly arrested for stealing his own car.

LEGAL POSITION

The Complainant contends that he was discriminated against by the Respondent on the grounds of race and religion, he is also claiming victimisation. The Respondent strongly rejects any such assertion.

To ground a successful claim under Employment Equality Acts, the Complainant must establish a prima facie case. This requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to himself. It is the Respondent’s case that the Complainant has failed to establish the existence of a prima facie case in accordance with Section 85A (1) of the Acts. The Respondent refers to the decision Melbury v Valpeters EDA/0917, wherein it is stated that this section: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. In other words, assertions cannot be mere speculation or unsupported evidence. There is no evidence in this instance that the Complainant was discriminated against on the race or religion ground and as stated the Respondent is a stranger to these assertions and indeed to the claim of victimisation.

Regarding the latter, the Complainant had never raised any issue or any complaint so he could not have been victimised.

Notwithstanding and without prejudice to the foregoing, in circumstances where the Adjudicator finds that a contractual relationship existed, the Respondent submits that any such contract, whether oral or implied, was ultimately illegal and by virtue of its illegality, the Complainant is prohibited from availing of relief under the Acts.

The Respondent relies on the following case law in support of this argument.

In the case of Hussein v The Labour Court and Younis 2012 IEHC364 the complainant was unable to invoke various protections afforded by Irish employment legislation by reason of the illegality of the contract of employment. The illegality arose from the employee’s failure to hold the required employment permit. These facts are akin to the case at hand as the Complainant did not have a work permit.

Similarly, in TA Hotels Limited trading as Lynams Hotel v Khoosey RPA17/30 RPD1916 the Labour Court found that the contract of employment relied upon by the complainant to ground a claim for certain statutory employment rights was tainted with illegality and therefore unenforceable in law. Consequently, the complainant could not maintain a claim under the Employment Equality Act.

In Sobhy v Chief Appeals Officer & ors [2022] IESC 16 an employment contract entered into by a person who did not have a work permit or permission to be in the State could not be regarded as a “contract of service” for the purposes of the contribution requirements in the Social Welfare Code. The contract of employment had been illegal under legislation and public policy required that the contract of employment be treated as illegal for all purposes. The Supreme Court referred to an earlier decision which held that “rights cannot flow from contracts of employment made without a necessary work permit or by a person unlawfully present in the State”.

Direct evidence of Mr. Bermingham

In his direct evidence Mr. Bermingham said that he suspended his mortgage and put all money he had in the company. He said that there were no other employees in the company.

As a preliminary matter, the Respondent asserts that there is no valid existing contractual relationship between the Complainant and the Respondent. The Respondent also assert that the Complainant has not listed a comparator.

As per my findings in ADJ-00034976, on 11th May 2021 the Complainant was issued with a contract of employment stipulating that his employment with the Respondent would commence on 15th June 2021. For the avoidance of doubt, the Complainant did not pursue the matter of the alleged transfer of undertakings.

With respect to the legality of and enforceability of a contract, there was no dispute that the employment of the Complainant was subject to the Employment Permits Acts. As the Complainant, at the time of entering into the employment contract did not have a valid employment permit, the contract was illegal. The question that arises is whether, despite the illegality, the contract can be said to be enforceable.

The judgment of Hogan J. in Hussein v The Labour Court [2012] IEHC 364 addressed the legitimacy and enforceability of an illegal contract in circumstances where an employee in question was working without a valid work permit. Although it was overturned by the Supreme Court on appeal this was on technical grounds. The Supreme Court did, however, make obiter comments 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.

The Supreme Court in Quinn v IBRC [2016] 1 IR 1 sets out the current law on contracts rendered illegal by virtue of statute. Clarke J.’s reasoning in Quinn was applied by the Labour Court in TA Hotels Limited T/A Lynams Hotel v. Khoosye RPD1917 where it was held that the contract of employment relied upon by the complainant to ground her claim for certain statutory employment rights was tainted with illegality and therefore unenforceable in law. Consequently, the complainant could not maintain a claim under the Redundancy Payments Acts. The Labour Court pointed to alternative remedies available through the civil courts which had been provided for by amendment to the Employment Permit Acts in the aftermath of the Hussein decision. These reliefs are not remedies capable of being pursued in the Labour Court. The Labour Court was satisfied the contract was unenforceable and determined that the complainant had no remedy before the Labour Court under Section 2B of the Employment Permits Acts. The Court held as follows;-

“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 the Quinn case, 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)”

The Labour Court in TA Hotels Limited T/A Lynams Hotel v. Khoosye case examined whether the Employment Permits Acts 2003 expressly renders a contract of employment, in circumstances where the employee requires but does not have a work permit, void or unenforceable.

The Court noted that the long title to the 2003 Act says that one of the objectives of the Act is to prohibit the employment of non-nationals who do not have an employment permit. (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 an employment permit granted by the Minister in accordance with section 8 of the 2006 Act.  Section 2(3) makes the contravention of 2(1) a criminal offence.

The 2014 Act inserted section 2(3A) which provided a defence to prosecution if the non-national could show that they took all reasonable steps to comply.

The Court went on to note that the 2014 amendments were brought in partly to ameliorate the High Court decision in Hussein and the long title sets out its objectives as follows:

“An Act to amend the Employment 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 the Employment 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 the Taxes 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 foreign 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 2C sets out the jurisdiction of the civils courts in terms of the amount claimed. Although this section does not define “civil proceedings”, the Labour Court has not accepted that it should be interpreted so as to permit a foreign national without an employment permit to pursue statutory employment rights through the Workplace Relations Commission and the Labour Court. The expression referred to “proceedings before a court exercising its normal civil jurisdiction”.

The Labour Court held that:

“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 of quantum 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.”

In line with the above, I find that the proceedings before the WRC are not civil proceedings as defined. The contract of employment relied upon by the Complainant to ground his claim under the Employment Equality Acts was tainted with illegality and therefore unenforceable in law and, consequently, the Complainant cannot maintain a claim under the Act.

I declare this complaint to be not well founded.

Discrimination – illegality of contract