David Cantrell: Contracts of employment for employees without a valid work permit, ‘unenforceable’ in Labour Court and WRC



David Cantrell

A recent decision of the Labour Court sheds light on the uncertainty surrounding the rights of non-EEA workers to seek compensation for owed payments from their employer in circumstances where they had been in employed without a valid work permit, writes David Cantrell, partner and head of the immigration group at Eugene F. Collins.

Mr Khoosye, a Mauritian national, worked with his employer, TA Hotels Limited, until 2016 at which point he was dismissed as the hotel in which he was working was due to close. Mr Khoosye who originally began working for TA Hotels in 2010 while a student, had not acquired the necessary employment permit once his student status had expired. TA Hotels therefore took the view that his employment contract was rendered illegal and void and maintained that Mr Khoosye was not entitled to statutory employment rights including the right of redundancy compensation.

Mr Khoosye disputed TA Hotel’s stance and took a case to the Workplace Relations Commission (WRC). A decision was made in favour of Mr Khoosye and TA Hotels was ordered to pay a substantial sum in compensation.

After an initial appeal to the Labour Court, which was dismissed as the application was made outside the time permitted to make an appeal, TA Hotels applied to have the case judicially reviewed in the High Court. Once again it maintained that the contract of employment was void due to Mr Khoosye not having a valid work permit as required by Irish immigration law.

The High Court referred the case back to the Labour Court citing a provision in the Employment Permits Act which provides that individuals who do not have valid employment permits, but who are owed money by an employer, can seek recourse through instituting “civil proceedings”. It was held that the term “civil proceedings” does not include applications brought to the WRC or Labour Court which are considered ‘quasi-judicial’ courts rather than civil courts.

The Labour Court therefore held that cases such as that of Mr Khoosye can only be adjudicated in an ordinary court being either the District, Circuit or High Court.

The Labour Court therefore overturned the award.

This decision is consistent with an earlier decision of the High Court in Hussein v the Labour Court, the principle finding of which, although overturned in the Supreme Court on a technical point, was upheld as binding law.

The effect of the decision is such that in circumstances where a non EEA national was in employment without a valid employment permit, the employee can only seek any owed compensation from or recourse against the employer through an application to an ordinary civil court and not via the WRC or Labour Court.

David Cantrell is a partner and head of the immigration group at Eugene F. Collins.