This issue arose in case ADJ-00027527.
The Adjudication Officer in this case referred to the case of Hussein –v- The Labour Court and Younis 2012 IEHC364 as being relevant as that case found that 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. It applied potential allegations of gross exploitation and no redress was available against the employer in that case as held by Mr. Justice Hogan. The case of TA Hotels Limited trading as Lynams Hotel –v- Ahoose RPA17/30 RPD1916 was one where the respondent after the Adjudication Officer considered the outcome of this case. This is a case where 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.
The Labour Court pointed to alternative remedies available in the Civil Courts which had been provided for by an amendment to the Employment Permit Act after the Hussein Decision. These reliefs the Labour Court pointed out were not capable of being pursued in the Labour Court.
The Adjudication Officer then referred to the case of Shardha Sobhy –v- The Chief Appeals Officer and the Minister for Employment Affairs and Social Protection 2020-353JR which concerned an entitlement to Maternity Benefit where the working permit had expired. The High Court took time to consider the case of Quinn –v- IRBC 2016 1IR where the Supreme Court had looked at issues concerning contract illegality. The Adjudication Officer pointed out that it seems that the Quinn case is clear authority for the position that there can be no hard and fast rule and no universally applicable rule to the effect that a contract tainted with illegality is always and of necessity and regardless of the consequences of any other factors void. The Adjudication Officer pointed out that it was clear from the Supreme Court decision in Quinn that the proposition is far from nuanced. In Sobhy the Court found that despite there had been no valid visa in operation the relationship does not automatically cease to be a contract of service for the purposes of the Social Welfare Acts. The Judge in that case did however indicate that when she had applied for Maternity Benefits under the Act the complainant was working under a valid visa allowing her to work in the State. The Adjudication Officer having considered the decision was satisfied that the Sobhy Case did not advance the complainants case and that the law as it was put by the Adjudication Officer at the time of the hearing of this case.
The Adjudication Officer held that the Contract of Employment was rendered void by the expiration of the student visa. The Adjudication Officer held that the complainant was fully aware of the fact that the visa was going to end and the onus rested with her to renew it. The Adjudication Officer held that the contract was void from 6th September 2019 and that the complainants entitlements to employment rights protected under legislation expired at this time too.
This is an important decision of the Adjudication Officer in setting out the law so clearly on this point.
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