ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00057404

Parties:

	Complainant	Respondent
Anonymised Parties	A Chef	A Restaurant

Representatives

None

Adare Human Resource Management

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977	CA-00069745-001	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00069745-003	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00069745-004	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00069745-005	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00069745-006	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00069745-007	04/03/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00069745-008	04/03/2025

Date of Adjudication Hearing: 16/10/25 and 29/01/2026

Workplace Relations Commission Adjudication Officer: Bríd Deering

Procedure:

In accordance with s. 41 of the Workplace Relations Act, 2015 and s. 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints.

The complaint was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020 - Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 (Section 31) (Workplace Relations Commission) (Designation) Order, 2020 which designated the Workplace Relations Commission (WRC) as a body empowered to hold remote hearings. The hearing was held over two half days on 16th October 2025 and 29th January 2026. On both dates the Respondent’s representative and the HR Manager were in attendance for the Respondent. The Complainant was not represented on either date. The hearing was assisted by an interpreter arranged by the WRC at the Complainant’s request. The Complainant and HR Manager were sworn in on the first date.

At the outset of the adjudication hearing, the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 employment rights and equality hearings before the WRC are held in public and the decision would not be anonymised unless there were special circumstances for doing so. On the second date a member of the media was in attendance. The Respondent made an application to have the hearing held in private given an allegation by the Complainant that the Respondent was withholding the Complainant’s passport, which the Respondent vehemently denied and submitted the WRC had no jurisdiction in respect of. This application was heard in private. After the Complainant confirmed the factual position with respect to his passport i.e., that he was in possession of his passport, the hearing resumed in public. During and at the end of the hearing on 29th January 2026, the Complainant also expressed considerable concern that he could not return to his home country as he was now ‘blacklisted’ by persons in his home country arising from his remaining in Ireland without immigration permission. While it was not entirely clear from the Complainant’s testimony why the latter may be the case, I have decided based on that assertion, that special circumstances exist to anonymise this decision.

Prior to the hearing into this complaint, the Respondent presented a written submission to the WRC. This written submission dealt with the unfair dismissal claim only, however, on the first day of the hearing on 16th October 2025, the Respondent’s representative made a preliminary argument that the contract was tainted with illegality, and therefore the WRC had no jurisdiction to entertain the unfair dismissal complaint. The Respondent’s representative sought to rely on the findings of the Labour Court in Ta Hotels Limited T/a Lynams v. Vireshwarsingh Khoosye (RPD1916) and Ta Hotels Limited T/a Lynams Hotel v. Preeti Khoosye (RPD1917). The Complainant stated that he did not understand the significance of these cases and whether they applied to his situation. As this was the first time the Complainant was put on notice of the Respondent’s preliminary argument, I requested the Respondent’s representative to submit a supplementary written submission to the WRC by a specified date. I also asked the Respondent’s representative to address within this supplementary submission, my jurisdiction to add additional complaints considering the detail outlined in the narrative which accompanied the complaint form. In this regard the Respondent’s attention was drawn to the High Court’s decision in Galway-Mayo Institute of Technology v. Employment Appeals Tribunal and Others [2007] IEHC 210 and in County Louth VEC v. Equality Tribunal & Brannigan (2009) IEHC 370.

A supplementary written submission was duly submitted by the Respondent and copied to the Complainant. The Complainant was afforded several weeks to respond in writing to the Respondent’s supplementary submission. No written comments were received by the WRC in this regard. In the written supplementary submission, the Respondent addressed the additional complaints outlined by the Complainant within the narrative accompanying the complaint form. Accordingly, this written decision has been amended to include the additional complaints outlined in the narrative to the complaint.

A second hearing date was scheduled for a half day on 29th January 2026. The Respondent’s representative argued that an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter issues. I outlined that, as per the Guidance Note for a WRC Adjudication Hearing (July 2021), in the vast majority of cases an Adjudication Officer will take evidence in relation to preliminary points raised from both parties and may then proceed to hear the substantive complaint/s. I accept that in circumstances where a ruling on the preliminary jurisdictional issue may be determinative of the entire proceedings, it may be considered in advance of the substantive matter. However, given the nature of the complaints made by the Complainant, I felt it was impertinent to use the hearing time allocated on 29th January 2026 to hear from the Complainant. Accordingly, where I deemed it necessary, I made my own inquiries to better understand the facts of the case; the contours of the complaint(s); in fulfilment of my duties under statute and with a mind to the case law on the application of a strict rule of unenforceability and the potential for injustice; and Article 4 of the European Convention on Human Rights.

During the hearing on 29th January 2026, the Respondent outlined its preliminary argument with respect to the WRC’s jurisdiction to determine the complaints. The Complainant was afforded an opportunity to comment on this preliminary argument. The Complainant outlined to the hearing that he had difficulty understanding the case law relied on by the Respondent in its supplementary written submission and further that he did not have access to a representative or any person to assist him in making a replying written submission. I explained to the Complainant that I could not assist him to make his case, but I could assist him to present his case. I invited the Respondent representative to object if she had any difficulty with the assistance I provided, and that I would hear that objection. In this respect, the hearing progressed at a deliberately slow pace to ensure the preliminary argument was explained to the Complainant in lay terms. The Complainant was given ample opportunity to understand and respond to the preliminary argument.

With the agreement of the parties, in advance of the Respondent adducing evidence, the hearing was adjourned at the end of the second day to allow me time to consider the Respondent’s preliminary argument and the Complainant’s response to same. It was explained to the parties that in the event I find in favour of the Respondent on the matter of the preliminary issue of jurisdiction there will not be any further hearing as I would then be precluded from determining on the substantive matters. To ensure clarity and understanding I reaffirmed that if I were satisfied of jurisdiction the hearing would be reconvened to allow the Respondent an opportunity to adduce evidence on the substantive matters and for cross examination in relation to that evidence. If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear any further evidence on the substantive matters and a decision would issue. I asked the Complainant to repeat back to me via the interpreter what he understood from my direction. I was satisfied the Complainant understood and accepted that approach.

Background:

The Complainant is a non-Irish national. He commenced employment with the Respondent in 2021 while he was on a student visa. He was dismissed in January 2025. He selected the Unfair Dismissals Act, 1977 on the WRC complaint form. He also attached a narrative to the complaint form. In the narrative to the complaint form, the Complainant alleged several other breaches of his statutory employment rights. The Complainant’s claims were denied by the Respondent, except for the claim with respect to annual leave and public holidays.

Summary of Complainant’s Case:

Preliminary Matter

The Complainant’s response to the preliminary argument was that there was a valid written contract of employment between the parties.

Substantive Matter

On the complaint form and in the narrative which accompanied the complaint form, the Complainant outlined that he was deceived and exploited throughout his employment because, despite promises, the Respondent did not apply for a work permit for him. He submitted that the Respondent was illegally withholding his passport and chef certificate. He did not receive a contract of employment over the course of his 3.5 years of employment despite repeated requests. He only received a 10-minute rest interval each day. He was not compensated for over-time, and a significant portion of his tips were unlawfully deducted from his earnings. In February 2024 his hours of work were reduced to 2 to 3 days per week, and since this time he has not received holiday pay. The Complainant also contends he was unfairly dismissed from his employment on 23rd January 2025.

On 16th October 2025 and 29th January 2026, the Complainant stated that his passport was being withheld by the Respondent and that this was of primary concern to him given his permission to remain in the country had expired. He outlined that he seeks the assistance of the WRC in relation to his passport. It was explained to the Complainant that the WRC has no jurisdiction with respect to his passport. On the second day of the hearing, the Complainant confirmed to the hearing that he was in fact in possession of his passport.

The Complainant submitted that he was never provided with a contract of employment despite multiple requests for same. On the second day of the hearing the Complainant confirmed to the hearing that he had received a written contract of employment in 2024 setting out the terms of his employment.

The Complainant stated he was not compensated for over-time hours despite frequently working more than 60 hours a week. On the second day of the hearing the Complainant confirmed to the hearing that he was paid an annual salary, and that there was no provision in his contract in relation to over-time payments. In advance of the hearing (copied to the Complainant) the Respondent submitted records in relation to hours worked by the Complainant since commencement of his employment. The Complainant confirmed to the hearing he worked 2 to 3 days per week since May 2024 and that his working day did not exceed 8 hours duration in 2024 or during the cognisable period for his complaint.

The Complainant stated he received no more than a 10-minute break during the working day from 2021 to 2023. In advance of the hearing (copied to the Complainant) the Respondent submitted electronic records of breaks taken by the Complainant. The Complainant could not point to any date/s on which he did not get his rest intervals at work during the cognisable period for this complaint.

The Complainant submitted on the complaint form that the general manager deducted a portion of his tips. In advance of the hearing (copied to the Complainant) the Respondent submitted records from 2024 to illustrate the allocation of tips amongst staff, including the Complainant, and that this was controlled by a staff representative and not the general manager. On the second day of the hearing the Complainant outlined that his complaint in relation to tips was that he believed the percentage allocation of tips between kitchen and front of house staff was unfair.

The Complainant outlined that he felt there was no need to dismiss him and that a reason should have been given for his dismissal. He felt that the Respondent dismissed him because they couldn’t get a work permit for him, but they had promised him that they would get a work permit for him. He believed he would get a work permit because his attendance rate at the language school was excellent and the immigration bureau said he would get a visa. Had this not been the case he would have returned to his home country to work in the family business. On the second day of the hearing, the Complainant accepted he was responsible for renewing his student visa and that, at a meeting in January 2024, it had been explained to him in his native tongue, the reason for his dismissal. The Complainant said he thought the Respondent would get a work permit for him and this is why he did not renew his student visa. The Complainant outlined that he was not aware until the WRC hearing, of the efforts expended and costs incurred by the Respondent in trying to obtain a work visa for him, and he expressed his gratitude for this.

Summary of Respondent’s Case:

Preliminary Matter

The Respondent contends that the employment of the Complainant when it was entered into in 2021 was lawful and that it became unlawful when the Complainant’s student visa and Covid extension expired in May 2022. The Complainant had ample opportunity to regularise his visa situation and did not do so. The Respondent contends that a person who continues to work after the expiry of a visa, without a work permit, commits an offence, and this offence taints the Complainants' employment with illegality and renders the contract between the Complainant and Respondent void. Accordingly, the Complainant’s complaints to the WRC ought to be dismissed on the grounds of illegality as he has no locus standi to bring his complaint to the WRC or Labour Court as he has no immigration permission to be in or to work in the State. The Respondent relies on the Labour Court’s findings in Ta Hotels Limited T/a Lynams v. Vireshwarsingh Khoosye (RPD1916) and Ta Hotels Limited T/a Lynams Hotel v. Preeti Khoosye (RPD1917), in which the Labour Court held that migrant workers without valid immigration permission cannot bring complaints to the WRC or the Labour Court as the employment contract is void and unenforceable.

Substantive Matter

In the supplementary written submission, the Respondent outlined that in January 2024, the Respondent learned from correspondence from the Department of Enterprise, Trade and Employment that the Complainant was in the State without immigration permission from the Minister for Justice and Equality as his temporary immigration permission expired in 2022. The HR Manager met the Complainant on 30th January 2024. The General Manager also attended this meeting as he spoke the same language as the Complainant. The Complainant accepted at this meeting that it was his responsibility to renew his student visa, and that he no longer had permission to be in the state. He also accepted that his manager did not commit to obtaining a work permit for him or promise same. Consequent on discovering the Complainant had no legal right to work, the Respondent discontinued his employment on 30th January 2024 and engaged a work permit consultancy firm to make an application for a work permit for him. This proved to be a long and protracted process and in ease of the Complainant having no employment or money, the Respondent offered him temporary employment for 2 to 3 days per week from May 2024 to January 2025.

On 30th July 2024 the Department refused the Complainant’s work visa application on the basis that there was no evidence of up-to-date immigration permission. The Respondent sought a review of that decision. However, an outcome to this review was not forthcoming and the Respondent had no option but to terminate the Complainant’s employment on 23rd January 2025. The Unfair Dismissal Act, 1977 provides that the dismissal of an employee is not unfair if an employee is unable to work or continue to work without contravention of a statute. The Respondent terminated the Complainant’s employment because the Complainant had no legal right to work within the State. The Respondent assisted the Complainant to the greatest possible extent possible to obtain a work permit to rectify his immigration status however, this was refused by the Department.

The Respondent refuted any breach of the Organisation of Working Time Act, 1997 with respect to maximum working time and rest intervals during the working day and attached records of working time and breaks to the supplementary submission. The Respondent accepted the Complainant did not receive a contract of employment until July 2024, and accepted the Complainant accrued annual leave and public holidays in 2024 until his dismissal in January 2025 and that cesser holiday pay was owed to him. The amount owing was calculated and set out in the supplementary submission (copied to the Complainant), and the Respondent’s representative informed the hearing that the Respondent intended to pay this amount to the Complainant.

Findings and Conclusions:

Preliminary Matter

The Respondent representative asked that I decide on the preliminary argument before moving to hearing the substantive case. Given the nature of the complaints and concerns expressed by the Complainant, I determined that I would reserve my position regarding the preliminary argument, and I would proceed to hear evidence from the Complainant. At the end of the second day, following the Complainant’s evidence and cross-examination on same, it was agreed that I would adjourn to determine the preliminary argument. If I were satisfied of jurisdiction the hearing would be reconvened to allow the Respondent an opportunity to adduce evidence on the substantive matters. If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear any further evidence on the substantive matters and a decision would issue. I was satisfied that this position was clearly understood and accepted by the Complainant.

Relevant Law

Illegality is a substantive limitation on the enforceability of a contract.

Section 2(1) of the Employment Permits Acts, 2003-2014 provides:

“A foreign national shall not— (a) enter the service of an employer in the State, or (b) be in employment in the State, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force”.

While the Employment Permits Acts, 2003-2014 is silent on the consequences of illegality for the enforceability of a contract of employment formed or performed in the absence of a valid work permit, in Hussein v. The Labour Court and Mohammad Younis [2012] IEHC 364 the High Court held that a contract of employment in the absence of a work permit is “substantively illegal” (per Hogan J. at [17]) and is therefore void and unenforceable (that decision was later overturned by the Supreme Court on jurisdictional and procedural grounds, without addressing the underlying substantive issue). Hogan J. also noted in Hussein that due to the provisions of the Employment Permits Acts “one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantive illegality” (at [17]).

The Supreme Court in Sobhy v. Chief Appeals Officer [2021] IESC 81 addressed the issue of enforcing an employment contract where no work permit was in place (note this was an appeal from a decision made by the Chief Appeals Officer and not a statutory employment claim). The effect of the decision was to uphold the decision of Hogan J. in Hussein regarding the unenforceability of such contracts. The Supreme Court 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, it may not be enforced within the protective statutory mechanism.

Previous to Sobhy, the Supreme Court had similarly held in Martin v. Galbraith [1942] I.R. 37 that “[p]arties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the Legislature has clearly given a right to sue” (per Murnaghan J. at [54]). While the Unfair Dismissals Act, 1977 was amended to permit an employee to seek redress under that Act in respect of their dismissal, this is only where a term or condition of the contract of employment contravened the Income Tax Acts or the Social Welfare (Consolidation) Acts. There is no similar provision under the Employment Permits Acts, 2003-2014, nor does the Employment Permits Acts, 2003-2014 confer jurisdiction on the WRC to hear complaints submitted by non-EEA workers working without a valid permit.

After the decision in Hussein, the Employment Permits Acts, 2003-2014 was amended. Section 2B of the Employment Permits Acts, 2003-2014 provides a mechanism for migrant workers without valid immigration permission to recover monies owning to them by the employer, by allowing either the employee or the Minister to bring civil proceedings for compensation. The worker must be able to demonstrate that they took all such steps as were reasonably open to them to comply with the requirement to hold a work permit.

The claims before the Labour Court in Ta Hotels Limited T/a Lynams v. Vireshwarsingh Khoosye (RPD1916) and Ta Hotels Limited T/a Lynams Hotel v. Preeti Khoosye (RPD1917) turned on what the term ‘civil proceedings’ means for the purposes of the Employment Permits Acts, 2003-2014. The Labour Court’s interpretation of the High Court decision in Hussein and the Supreme Court’s ruling in Quinn v. IBRC [2016] 1 IR 1was central to determining the meaning of ‘civil proceedings’. Relying on Quinn, the Labour Court held that the employees’ sole avenue for redress was through ‘civil proceedings’ and that this term did not extend to claims before the Labour Court. The Labour Court further held that the complainants’ contracts of employment were enforceable only in the ordinary courts and not before the Labour Court. As the employment contracts were unenforceable, the Labour Court concluded that complainants in those cases lacked locus standi to pursue their claims before the Labour Court.

Findings

The Respondent’s representative made a preliminary argument that the contract was ‘tainted with illegality’, and therefore the WRC had no jurisdiction to entertain the complaints. The Respondent’s representative sought to rely on the findings of the Labour Court in Ta Hotels Limited T/a Lynams v. Vireshwarsingh Khoosye (RPD1916) and Ta Hotels Limited T/a Lynams Hotel v. Preeti Khoosye (RPD1917). The Complainant’s response to this preliminary argument was that there was a valid signed written contract of employment in existence between the parties.

In this case, it is clear the contract between the Respondent and Complainant was not for an illegal purpose. The question therefore is whether the contract came to be illegally performed and if so, whether that illegality is sufficient to render the contract unenforceable before the WRC.

As noted by the Labour Court in Khoosye, if a visa expires the permissions attached to it also expire and therefore permission to work without a work permit expires with the visa. The individual’s employment then becomes subject to the provisions of the Employment Permits Acts, 2003-2014. Section 2(1) of the Employment Permits Acts, 2003-2014 creates an offence of working without a work permit. Where a person continues to work after the expiry of a visa, without a work permit, the person commits an offence. Accordingly, and in line with the findings of Hogan J. in Hussein, a contract of employment is substantively illegal in the absence of a work permit.

In this case, the Complainant’s student visa and Covid extension thereto expired in 2022. He did not renew his student visa. He remained in the State without permission and continued to work for the Respondent without a work permit. Accordingly, I am satisfied the Complainant’s contract of employment became illegal when his student visa and Covid related extension thereto expired in 2022. The Complainant acknowledged he had responsibility to renew his visa. He accepted that he did not do this. His reason for not doing so (i.e., his reliance on an alleged promise by his manager to get him a work permit) is irrelevant to that substantive illegality. He accepted the Respondent had explained to him in January 2024 the consequences of not renewing his student visa for his continued employment with the Respondent. It is clear that by not renewing his student visa, and in continuing to work for the Respondent without a work permit, the Complainant participated in the illegal performance of his contract of employment.

The next question that arises for consideration is whether the contract of employment is enforceable for the purposes of the complaints before the WRC. In Sobhy, the Supreme Court noted that there is nothing in the Employment Permits Acts, 2003-2014 to suggest that a contract of employment made by a person who does not have a work permit is unenforceable, but added “[n]onetheless, the conclusion in FÁS v. Abbott (unreported, Supreme Court, Egan J., 23 May 1995) and later in Hussein v. The Labour Court was that such an inference is inescapable . . . .”

Generally, parties to a contract that produces illegality cannot pursue statutory complaints on foot of that contract, unless the relevant statute has provided for same. As noted above, the Employment Permits Acts, 2003-2014 do not confer jurisdiction on the WRC to hear complaints submitted by non-EEA workers working without a valid permit. Therefore, in the absence of an express statutory provision, and applying the findings of the Supreme Court in Sobhy and Labour Court in Khoosye, in the context of the complaints before the WRC under the various employment statutes listed in this decision, I am satisfied the Complainant’s contract of employment is unenforceable before the WRC.

In conclusion, I am satisfied the Complainant’s employment contract became illegal when his student visa (and Covid extension thereto) expired in 2022 and, consequently, the contract of employment he seeks to rely upon to ground his claims is therefore unenforceable before the WRC. Accordingly, I find I do not have jurisdiction to determine the substantive matters as the Complainant lacks locus standi to pursue his complaints before the WRC.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00069745-001