Mr Justice Gerard Hogan said he was sending a copy of his judgment to the Ceann Comhairle, the Cathaoirleach of the Seanad and the minister for employment so the Oireachtas might consider the consequences of his decision on existing employment legislation.
Judge Hogan held that the Labour Court could not lawfully have awarded the money, most of which was for back pay, for breach of rights to chef Mohammad Younis in respect of an employment contract that was illegal.
The ruling was described by Siobhan O’Donoghue, of the Migrant Rights Centre Ireland, as devastating for all undocumented migrants. She called for the Government to urgently address the problem with the Employment Permits Act.
The judge said Mr Younis and his employer and cousin, Amjad Hussein, owner of the Poppadom restaurant at Harold’s Cross, Clondalkin, Dublin, were Pakistani nationals. Mr Younis had claimed he was recruited in Pakistan as a tandoori chef in 2002 by Mr Hussein.
Unable to speak English, he had arrived in Ireland where he contended he had been grievously exploited by his cousin who required him to work seven days a week for pocket money with no holidays.
He had resigned in 2009 when it came to his attention his position had not been legally regularised with the relevant authorities and set in train a series of claims. Mr Hussein disputed these contentions.
Judge Hogan said Mr Hussein contended Mr Younis had no standing to invoke the protection afforded by employment laws since any contract of employment was an illegal one in the absence of an employment permit which he did not have.
The Employment Permits Act prohibited a non-national from being employed without such a permit and the Oireachtas had declared that a contract of employment involving a non-national was substantively illegal in the absence of a permit.
He said that the Labour Court could not lawfully entertain an application for relief in respect of an employment contract that was substantively illegal and for this reason its decisions could not be allowed to stand.
“While this conclusion seems to me to be inescapable on the application of established legal principles, it is not a result which yields much satisfaction,” he said.
Judge Hogan said that if Mr Younis’s account was correct, and the Labour Court had found it was, he had been the victim of the most appalling exploitation in respect of which he had no effective recourse. “While I am bound to apply the policy ... there must be some concern that this legislation will produce, and perhaps has produced, consequences which were not foreseen or envisaged,” he said.
It might not have been intended by the Oireachtas that undocumented migrant workers, not least a vulnerable one such as Mr Younis, should be effectively deprived of the benefit of all employment legislation by virtue of their illegal status, he said.
While respecting the divisions which necessarily exist between the legislative and judicial branches, a healthy dialogue between them could only serve the public interest.
Judge Hogan said the treatment of migrant workers was a vexed one which posed considerable difficulties with regard to the regulation of the labour market and the enforcement of public policy.