Muhammad Younis, left, after his victory in the Supreme Court last week
You may recall Muhammad Younis.
Mr Younis had worked 77-hour weeks in Poppadom take-way in Clondalkin, Dublin for seven years, earning 55c an hour for some of those years. The Rights Commissioner ruled that he be owed €92,000 and the Labour Court endorsed this.
When his employer refused to pay, Mr Younis went to the High Court where the judge ruled against him.
Last week the Supreme Court overturned the High Court judgment.
However, his fight for justice is not over yet.
Readers may wish to learn that, although he won in the Supreme Court, it’s not a given that he will get paid.
This morning, Grainne O’Toole, from the Migrant Rights Centre in Ireland, spoke to Mark Finnegan, on Near FM about the case and explained Mr Younis’ situation.
Mark Finnegan: “Could you maybe just give us a background to what the case was about?”
Grainne O’Toole: “This involved a restaurant where Muhammad was a chef, a tandoori chef and he came to Ireland on a work permit to work in Poppadom restaurant and he worked out of Clondalkin in their take-away branch. He worked for many years. In the first few years he got 55c an hour, he worked a 77-hour week. The only day he got off was Christmas Day and he was living in very poor conditions. He had previously been working in Dubai as a chef and had been convinced to come to Ireland by his cousin to take up this job and he was very distressed to find himself in a situation where he didn’t know the language and also being paid so little and having to work long hours. So he basically found himself in a situation of forced labour, as we would say modern-day slavery.
Then his employer didn’t renew his work permit and at the time it was the responsibility of his employer to do so and he left him undocumented in the State and then the employer hung that over him, you know, as a a reason, a threat to coerce him into staying there. So basically, in the end, we came to meet them because the employers got a letter from Immigration, from the Department of Justice, so inadvertently they came to our office to get advice but we always try and meet workers on their own, as part of our own policy. So we managed to stay in contact with Muhammed. A number of months later we met him and found out all about his story away from his employer and we assisted him to leave the situation.”
Finnegan: “It sounds absolutely horrendous, as you say, slave labour. I mean working 80-odd hours a week, for 50-odd cents an hour is scandalous. Yourselves, in the Migrant Rights Centre, you heard about a situation and you took on the case.The first stop was the Labour Court, yeah?”
O’Toole: “Yeah and we filed all his complaints, all his employment complaints for breaches of minimum wage and so on, holiday pay, lack of contract, all those types of issues to the Rights Commissioner and they heard the case. His employer was present for all that and we won the case and the Rights Commissioner awarded him, just over €92,000 for breaches of his employment rights. So we then went to, basically we went to the Labour Court then, just to endorse the award because the employer gets an opportunity to appeal, he didn’t, then we request payment and he didn’t pay up so we went up to the Labour Court and said, ‘look, this hasn’t been, this award hasn’t been appealed and now it also needs to be paid’.
So they basically rubber stamped that and said, ‘yes, that’s correct’. And we then requested further payment of that, it wasn’t forthcoming so then we got lawyers involved then to go to the Circuit Court and they went on Muhammad’s behalf and went to look for payment. And when they went to do that, it procured a High Court action by the employer, who said, ‘I’m not paying up, we didn’t have a contract for employment because Muhammad Younis didn’t have his papers to be in the country. The contract between us is illegal’. That was basically the employer’s argument in the High Court.”
Finnegan: “So it just strikes me as stunningly backward that the employer could, you know basically, as you say, pay this man 50 cents and hour and hold threat of deportation over him among everything else and when you follow the proper procedures for employment rights,you have to go through all kind of hoops to just get the man what he had been awarded by the Rights Commissioner in the first place. So in 2012 the High Court judgement overturned the payment. That sounds incredible to me. What were the grounds for that?”
O’Toole: “They basically said that the contract was both substantially illegal because it couldn’t be relied upon. Because Muhammad was undocumented and so on. But I mean it didn’t take into account that he came in on a work permit, that it was the responsibility of the employer to upgrade. So in fact the employer walked away from the High Court with a victory, when he had created the conditions of slavery for Muhammad. He was the one who didn’t upgrade his work permit so it was highly and grossly unjust. There was a public outcry, we had calls to our office, Muhammad had huge support, schools even made collections for him, and all of that. I mean it was just incredible.
I suppose it echoed, at the time as well, you know the whole banking crisis, the wealthy getting away and here was another manifestation of that. The judge, what the judge did do was he sent his judgement over to the Oireachtas to say, ‘look could you consider this’ because he did consider it unjust himself but the Government, on foot of that, did change the law in that they brought in, where migrants find themselves undocumented, who don’t have papers in the country, to go to the civil courts. Now we welcome that because it’s a measure that people can use but the problem is going to the civil courts is not, it’s a costly business. You have to get a lawyer so NGOs like us can’t represent people. We don’t have a legal standing in the civil courts. So, you know, what workers are really going to be able to use that? Time will tell. We are trying to test that out at the moment.
So, I suppose, moving on then, Muhammad and his legal team, they appealed it to the Supreme Court and basically what the Supreme Court did was they reinstated his rights and said, ‘no, this decision wasn’t appealed in the proper channels’. So no new evidence could be brought in. You know, the Labour Court acted properly, they upheld the award that was properly given, that was never appealed and they quashed the High Court order and said, ‘no, that Muhammad Younis has to be paid the €92,600 and 32 cents I think it is. I suppose, for us, what we’re taking from this, from that judgement and from the commentary of the judgement is that every worker has the right to go to the Labour Courts and get their case heard. So any worker, regardless of their status, because you know, workers, all you have to show, if I have a contract with you, I have to show that I worked for you, for a certain number of hours and that you paid me and that kind of employment relationship, immigration issues shouldn’t come to play, otherwise we’re giving exploitative employers a green light to exploit workers whenever they choose, without any penalty.”
Finnegan: “That would seem to be, as you say, when the High Court decision was made, not to stop the payment, to overturn the payment. I mean basically it was giving the employer the impunity to just go ahead and carry on which is ludicrous.”
O’Toole: “Oh absolutely. The decision in the High Court was a victory over a worker who had given his, you know, who has worked for him for seven years. I mean it’s absolutely appalling.”
Finnegan: “Yes, and it’s probably important to note that the judge in the case was obviously working within the laws as they stood. Can we ask, you know, in the wake of all of this now, has the law been changed? Is it no longer possible for this kind of thing to happen to a migrant worker?”
O’Toole: “Well the sad thing is it can happen but I suppose what this judgement does is it gives us a precedent to say, ‘look all cases should be admitted’ so it opens back up the Labour Court because what was happening to us, we were adjourning cases where migrants didn’t have their papers and were exploited because we were afraid the same thing that would happen to Muhammad Younis, so now we’d be saying, ‘look let’s go back to the courts and we’ll let the Labour Court rule on employment issues. It’s not their role to look at immigration issue. Now obviously they can consider issues as they’re raised but it’s about the employment relationship. So we’re confident that we can go back into the Labour Court and access all those rights again. Unfortunately as we’ve seen recently with the au pair situation we’ve had, you know there’s a lot of exploitation in sectors where migrants tend to be concentrated in, you know, in a kind of more unregulated sectors like restaurants, au pairs, domestic work, care work, you know, they are problematic areas and we have to be vigilant. But at least it’s a message to workers that, ‘look, if I stand up for myself I can achieve this’…Not only has he fought to the last, under great hardship to himself but he has impacted on two laws. One, in relation to slavery and the other one where he won the right for people to go to the civil courts to get compensation orders where they don’t get their wages.”
Finnegan: “Well there’s a policy now, as always in these precedent is a huge thing and if you have precedent – it’s a huge help. But, I spoke to your colleague Aoife, a couple of weeks ago, about the au pair situation as well, that you just mentioned there. I mean I know until people come forward to yourselves and you’re made aware of situations that you can only guess at how much of this kind of unscrupulous behaviour is going on but, you know, from your own estimates from what you hear. You know how systematic is it within Ireland that lots of migrants are being kind of abused in this way?”
O’Toole: “Well I suppose we, unfortunately, through our work, we provide a drop-in centre here that’s free and confidential advice and we handle over 2,000 cases a year and we’ve also recently, which we will be publishing in the next few months, we’ve done a survey with workers in low pay and migrants specifically but many migrants are now Irish citizens as well, for people who’ve been here a longer time. But the reality migrants, even when you become an Irish citizen, are still concentrated in low-pay work and, unfortunately, exploitation is very widespread. Like breaches of basic stuff, like still people have no contracts, they’re not being paid proper wages, they’re being expected to work longer hours and not get fully paid per hour, so there’s a lot of violations across the board we’re still seeing. We haven’t managed to stamp out exploitation yet. It’s still alive and well unfortunately.”
Finnegan: “Which is a shame, you know, the work yourselves are doing there, you know hopefully, and through the back of Muhammad’s case , more people will get the courage to come forward..”
O’Toole: ‘Yeah absolutely. And what we’re noticing is people are, who are here longer, I’m not saying those newly arrived migrants, but you know people are more aware of their rights and entitled to and I think what we need to do is for people to organise and claim those rights and have the courage and support to come forward and do that. And people, you know, who are in exploitative situations, you know, they need support to take action and we reach out to people as much as we can but we always say to people, ‘please link up with us, there’s room for everybody’ and when we work together we do make a big impact together. So don’t be afraid and come forward and let’s fight it together. So that’s our message to people and we’re always trying to find new ways to reach out to people as much as we can.”
Finnegan: “Long may it continue, Grainne, because it’s badly needed. Before I let you go, could I just ask you: Muhammad, how is he nowadays? Are ye still in touch with him? How is he?”
O’Toole: “Oh no of course, Muhammad is very involved with us here at the centre over the years as well. No he’s doing well, he’s kind of been waiting for this judgement really so he feels a weight has been lifted off him from last week, off his shoulders, and he felt very validated by the decision. It was very emotional for him. What he’s going to do now is he’s going to fight to see if we can payment on his award, that’s our next step and the day he gets money, I think then that’s when he gets the result he needs. So we’ll keep pursuing that.”
Finnegan: “And that’s an interesting one now because, as you said that there, it struck me that, even though the decision has been overturned, there are still kind of hoops to jump through before he actually gets a settlement, is that right?”
O’Toole: “Oh absolutely, yeah, absolutely. This is the problem. I know, not to discourage anyone at all, but it’s difficult because we have been great over the years, Muhammad and other cases are getting awards in the Labour Court but then you have to go and enforce them. Unfortunately these types of employers don’t pay up unless there’s severe pressure, even under a court order they don’t pay up, they just avoid the debt collection proceedings. So that’s a whole other loophole that we need to close in law to enable…we would call a wage test that’s happening to workers out there, across the board, so that’s another struggle we’re going to have now. But we’re up for the battle of it.”
Previously: Seven Years A Slave