Complainant

Respondent

Parties

Claudia Ferreira  Borges

Team Weaver Limited

Representatives

  In person

 No appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064506-001

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00064506-002

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00064506-003

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064506-004

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064506-005

02/07/2024

The Complainant has brought five complaints against her former employer, the Respondent.

These relate to unpaid wages, failure to provide a contract in writing, failure to pay holiday pay and bank holiday pay.

The Complainant is a Brazilian non-national and admits that she was working for the Respondent illegally without an employment permit or other form of permission for work.

At all material times the Complainant was within the State on a tourist visa.

The Respondent was on notice of the Adjudication hearing and failed to attend.

In this decision Payment of Wages Act is referred to as POWA; the Organisation of Working Time Act is referred to as OWTA, the Terms of Employment Information Act is referred to as TOEIA and the Employment Permits Act is referred to as EPA.

The Complainant gave evidence under oath as follows:

She came to Ireland from Brazil on a tourist visa and moved to live in Roscommon.

When in Roscommon she learned that cleaning work was available with the Respondent. She contacted the managing director of the company, Dean Weaver who offered her work hours as a cleaner. With the help of a migrant rights solicitor, she applied for and obtained a PPS number.

She commenced work for the Respondent on 14 August 2023.

The Respondent had a cleaning and maintenance services business. Its managing director, Dean Weaver had contracts with private companies and public bodies. The Complainant typically worked Monday to Friday cleaning premises and on Saturdays she, and another employee, cleaned a cinema and cleaned windows of nursing homes in different counties. She also worked every second Sunday.

To get from place to place,  Dean Weaver provided her with a van even though he knew that she was not insured to drive the van.  She was always worried that the gardai would stop her and she would get into trouble.

She worked until 2 January 2024 but was not paid for her work in December 2023.

She asked Dean Weaver for payment of her wages in December, and he said that he had already paid her which was untrue. She asked him to send her proof of this payment and he did not reply.

She believes that all happened because at the start of December 2023 Mr. Weaver asked her to collect him in the van from Knock Airport on a Sunday on her day off. When she refused, he was not happy and his attitude towards her changed.

Nonetheless he still required her to continue working for the rest of December, which she did. She showed text message evidence of 30 screen shots the evidence their communication over the pay dispute.

She was not paid for 4- or 5-weeks work. ie from her last pay date at the end of November 2023 until 2 January 2024. The relief that she seeks is that the Respondent be ordered to pay her for 115 work hours at the agreed rate of €12 per hour, which adds up to €1380.00

When she asked to be paid, he sent her a series of aggressive texts which ended with him stating that she was working for him illegally, implying that she had no enforceable employment rights anyway. This is shown in the screen shot evidence that she provided to the Adjudication hearing.

In addition to the unlawful deduction from her wages, Dean Weaver also did not pay of her holiday entitlements (2 weeks) bank holiday pay (4 bank holidays) and did not provide her with a contract in writing.

After she left her employment on 2 January 2024, she remained in Ireland until June 2024 when she became ill and needed to return to Brazil. She attended the remote Adjudication hearing from her home in Brazil.

She feels that she was exploited by the Respondent because she did not have any protection given that she was working without an employment permit. She came to Ireland because she has two young children at home in Brazil for whom she is solely responsible for. She worked very hard for the Respondent. She was not paid, and she did not receive basic employment entitlements.  She is not the only illegal worker who the Respondent has exploited.

Dean Weaver promised her when she started working for him that he would organise an employment permit for her, but he never did.

No appearance on or on behalf of the Respondent

Having satisfied myself that the Respondent was on written notice of the Adjudication hearing and chose not to attend, I proceeded to hear the Complainant’s evidence in the absence of the Respondent.

Overview

I found the Complainant to be a candid and compelling witness.

She accepted that for the duration of her employment she had no employment permit and that she worked for the Respondent illegally.

This concession brings with it jurisdictional issues that need to be considered before the substantive complaints may be investigated.

Jurisdiction of WRC where employee has no legal permission to work

The jurisdiction to investigate a complaint under PWA; OWT and TOEIA is conditional on the existence of a contract of employment or a contract of service. Without a contract of employment, there is no jurisdiction to investigate a WRC complaint.

Under Irish law, unless a person is one of the following - an EEA national, is a Swiss national, has been granted refugee status,  has temporary permission to stay within the State under the Asylum process, has specific permission from the Department of Justice to work, has a student visa, has a working visa, is a spouse or civil partner of an Irish or EEA national , is the parent on an Irish citizen or is a non-EEA worker who has permission to work in another EU state - a person may only work in Ireland if they have been granted an employment permit.

For the duration that the Complainant lived in Ireland she accepts that she did not fall into any of the above categories and that under a tourist visa, she was working illegally.

Employment Permits Acts [EPA] 2003-2014

The Employment Permits Act 2003 makes it’s a criminal offence to employ a worker who has no employment permit, or other permission to work within the State.

Following the judgment in Hussein v. Labour Court [2012] IEHC 364, the EPA 2003 Act was amended in 2014, to provide employees (who have worked without an employment permit) with protection by allowing them access to relief based on their contract through the courts. Under section 2B of the Act, a worker (or the Minister for Enterprise Trade and Employment on behalf of the worker) who is working without an employment permit and has not been paid for work done, may sue the Employer (by way of civil proceedings) for breach of contractual duty but not pursuant to statute.

This route to relief remains open to the Complainant to pursue.

The enforceability of statutory rights under an Illegal Employment Contract.

There are a number of Superior Court decisions which have recently considered illegal employment contracts namely, Hussein v. Labour Court [2015] IESC 58 and Quinn v. IRBC [2015] IESC 29.

The 2012 High Court decision in Hussein was overturned by the Supreme Court in 2015 on the basis that the appeal was not properly brought before the High Court.

The issue - specifically the issue of jurisdiction of the WRC and Labour Court to deal with statutory employment rights in respect of cases involving employment contracts where there is no legal permission for the employee to work, was revisited in 2019 by the Labour Court (following a judicial review application) in the case of TA Hotels Limited t/a Lynams Hotel v. Khoosye [RPA/17/30] which considered if an employee, with no employment permit, had a right to statutory redundancy.

In Khoosye the Complainant sought to argue that because the amending (section 2B) of EPA 2014 did not define “civil proceedings,” in the absence of such definition the statutory jurisdiction of the WRC and Labour Court constituted “civil proceedings” which would allow a complainant to enforce a statutory complaint under the PWA. He also argued that the Supreme Court judgment in Hussein suggested that the enforcement of an illegal employment contract is not black and white and to determine if an illegal contract may be enforced,  needs to be considered in light of the principle of proportionality considering the nature of the illegality and the author of the illegality.

However the Labour Court rejected the Complainant’s arguments holding that the jurisdiction of the WRC and Labour Court does not constitute “civil proceedings” in the 2014 Employment Permits Amendment Act but rather refers to civil proceedings brought in the Courts. It further found that because the Complainant was working without a work visa or employment permit that his contract of employment was illegal and was unenforceable by the WRC and Labour Court in terms of statutory rights. 

The issue was again considered in the Supreme Court case of Sobhy v the Chief Appeals Officer, Minster for Employment Affairs and Social Protection and the Attorney General [2021] IESC 81

In Sobhy the Supreme Court drew a distinction between those cases which involve the enforceability of an employment contract where the work itself is illegal and those cases in which the work itself is legal, but the employment is illegal because the worker has no employment permit (to use an colloquialism, is “undocumented”) and does not have legal permission to work within the State.

The Supreme Court (overturning the High Court decision of Heslin J.) held that where a contract of employment is entered into by a person who is unlawfully working in the State, because they do not have an employment permit, they are not permitted to work and their employment contract is illegal, and save as expressly provided by statute (including section 2B of the EPA,) it may not be enforced within the protective statutory mechanism.

The Supreme Court observed that the statutory regime created by the Employment Permits Act 2003 and the Immigration Act 2004 have, as a purpose, the common good and the protection of the borders of the State.

Finding

Based on the clear direction of the Labour Court in Khoosye and subsequently the decision of the Supreme Court in Sobhy I am satisfied thatbecause the Complainant in the present case, accepts that she had no employment permit to allow her to work legally, that her contract of employment was illegal and I am compelled to find, not without some disquiet, that I have no jurisdiction to investigate these complaints.  The disquiet is because the State’s economy is currently buoyant and replete with labour shortages in most sectors. Without additional legislative protection the incentive to employ workers with little or no statutory employment rights is bound to be exploited creating a dark employment environment where basic protections do not reach. 

As the Supreme Court acknowledged in Sobhy - it’s decision could result in it becoming more attractive for an employer to employ workers illegally because PRSI would not have to be paid.  I agree with this observation.

However, under the current statutory scheme and in light of Superior Court and Labour Court Authorities, I am bound to find that without a legal contract of employment the WRC has no jurisdiction to investigate alleged breaches of employment rights under the POW; OWT or TOEIA.

On the basis that there is no jurisdiction, I find each of these complaints to be not well founded.

Illegal contract - No Employment Permit – PWA – OWT - TOEIA