For Some Workers, Winning a Case Against an Employer May Not Mean Getting Paid

When Anele Jakiel moved to Ireland in 2006 from Zimbabwe, someone she knew put her in touch with Lynette Kawonza, who was living in Blanchardstown.

Kawonza’s family needed a childminder, Jakiel says. “She was looking for a mature person,” Jakiel says. “Someone who was socially deprived, struggling in life.”

With two kids to raise alone, Jakiel fit the bill. But, Jakiel says, the Kawonzas never paid her adequately for her time.

Jakiel says she worked seven days a week for €400 a month to mind four children.

She took her employer to the Labour Relations Commission. In 2010, she was awarded €33,456 for unpaid wages. But she’s never been paid a cent.

The system has changed since then, with new legislation and the establishment in 2015 of the Workplace Relations Commission (WRC). Many employers pay up when the WRC orders them to, and if they don’t they can be taken to court.

However, the system’s not perfect yet, advocates for trafficked workers say. A specific fund for victims of trafficking could be a solution, says Dearbhla Ryan, of Migrant Rights Centre Ireland.

Compensation

In 2008, Jakiel got into contact with MRCI, who helped her leave the house.

Together they took her employers to the Labour Relations Commission (which has since been absorbed into the WRC) and won settlement. Her employer appealed, but the ruling was upheld.

“It was so stressful,” she says. It was also confusing. “I didn’t know anything about the law, about all the procedures I was passing through. I was just going.”

Jakiel says she wasn’t pleased with the outcome. “I wasn’t happy with the decision. The [court was] supposed to do something.”

An enforcement order application was sent to the district court eventually, Jakiel said. “They court ended up making them put my name on the house,” she says.

But they’ve since moved to UK, says Jakiel, the house has not been sold, and her employer has yet to pay her anything.

The Process

Mohammed Younis had a similar experience. He moved from Pakistan to Ireland to try to start a better life in 2002, he says.

Younis worked at Poppadom Restaurant in Clondalkin for seven years. He put in 77-hour weeks, working seven days a week.

Those exploited like Jakiel and Younis can take their cases to the Workplace Relations Commission (WRC). If appealed, this is brought to the Labour Court.

This is what Younis did. He was awarded more than €93,000 by the Rights Commissioner (now the WRC) in 2011.

The Labour Court then upheld this decision, ordering Younis’s employer to pay him €1,500 for breaches of the Terms of Employment (Information) Act 1994; €5,000 for breaches of the Organisation of Working Time Act 1997; and €86,132.42 as back pay under the National Minimum Wage Act 2000.

It was under the same laws that Jakiel took her case.

Represented by MRCI, she took her case based on the Organisation of Working Time Act 1997, which deals with the maximum number of hours an employee can work, and the breaks and rest periods owed. She was awarded €5,000 under the act.

Jakiel’s case also dealt with the National Minimum Wage Act 2000, and under this, she was awarded €26,099. In 2010, her employers were ordered to pay the €5,000 within six weeks of the determination. Jakiel says she hasn’t seen a cent.

Jakiel says her employers argued in 2012 that because she was an undocumented worker, she wasn’t entitled to compensation.

The same thing happened to Younis. His employer, Ajman Hussein, appealed the Labour Court’s decision in 2012, saying that because Younis’s work permit had expired in July 2003, he wasn’t entitled to compensation.

The High Court sided with Hussein, the employer. But then the Supreme Court ruled in 2015 on Younis’s side, allowing the Labour Court’s decision to stand.

Sitting in a room in MRCI’s office on Dorset Street on a recent Monday, Younis, now 64, says through an Urdu interpreter that his expired work permit set him back, and this still makes him angry.

“Mr Hussein never gave me a work permit, his own cousin. This was really bad for me,” he said.

Barriers

A 2015 MRCI report said: “This judgment was struck out in the Supreme Court on the specific points relating to the case, yet the rights of undocumented workers to access WRBs [Workplace Relations Bodies] are still uncertain.”

The ruling caused a knock-on effect for undocumented people who try to take their case to the Workplace Relations Commission, says Ryan, sitting with Younis.

“What the High Court said was that undocumented workers weren’t protected by employment rights cases. But we’re still pushing and supporting undocumented workers,” she says.

It’s a case-by-case basis with the Workplace Relations Commission, says Ryan.

Ryan says they are “struggling” with cases like Younis’s. “They’d be low-wage work in restaurants or childcare. Small hotels and B&Bs it’s happened as well,” she says.

In the cases dealt with by MRCI, there’s often a small, un-unionised workforce and the employers are lax on compliance, says Ryan.

When faced with a ruling in favour of an employee, they can change the company name or close down their business.

“They can quickly hide their assets so that it looks like they don’t have money to pay or genuinely not have money to pay. In these situations, it’s very difficult for people to get their stolen wages,” says Ryan.

(If, however, a company becomes insolvent and doesn’t pay a WRC-ordered award, the Department of Employment Protection and Social Affairs has a scheme that can pay out the award still to the employee.)

Ryan says Younis has had the support of pro-bono solicitors. “The employer evades, he doesn’t respond.”

Colin Smith, a barrister specialising in human rights, says the main barrier for migrant workers is finding the resources to follow up cases of unpaid wages.

Also, “There’s a wider issue of the system being overburdened,” he says.

There aren’t the resources there for the adjudicators and the Labour Court to make sure they’re able to do things expeditiously enough, he says.

There needs to be more easily accessible legal representation for people, he says. These cases can be won, but, he says, “Without a specialist legal team and the support of an NGO, it’s really difficult”.

What Solutions

Jakiel says she doesn’t know what the solution is for her, but she thinks “the government needs to step up”.

“I was robbed of my wages,” she says. “I was overworked, I wasn’t paid anything.”

Younis, speaking through his interpreter, says he still hopes to get the money he’s owed. “I have hope,” he says. “The people in MRCI will still continue to help me.”

The non-payment of awards to migrant workers is a huge problem, says Ryan of MRCI. They continue to look for solutions for people who don’t receive awards.

“For WRC adjudication awards specifically, we’re looking at the possibility that the state should and could pay out awards after certain attempts at unsuccessful enforcement,” she says.

The passage of the Workplace Relations Act 2015 and the establishment of the WRC were significant changes to the system. But it’s unclear exactly what their impact has been, in terms of ensuring that employers pay what they are ordered to.

The WRC does not have data on how many people aren’t paid despite a ruling in their favour each year, according to a spokesperson for the Department of Business, Enterprise and Innovation.

When asked whether, despite this lack of data, they could say whether this type of nonpayment was still an issue post 2015, the spokesperson did not answer directly, saying that that the remedy cases of nonpayment is to go to court.

“Ultimately, the enforcement of a District Court order is the responsibility of the local Registrar or Sheriff,” they said.

For those who have the time, money and confidence to go to court and ask for a WRC order to be enforced against their employer, it’s not clear what the success rate is. The Courts Service does not keep this data, a spokesperson there said.

If employees aren’t prepared to go to court, the WRC has the discretion to take cases to court itself, if it wants, Minister of State for the Department of Business, Enterprise and Innovation Pat Breen said in the Dáil recently.

“In 2016 a total of 43 decisions were enforced following an application by the WRC to the District Court with 85 and 66 completed in 2017 and 2018 respectively,” he said.

Still, Smith, the barrister, says compensation mechanisms for victims of human trafficking, in particular, could certainly be improved.

Jakiel’s and Younis’s cases would be considered human trafficking today under the Criminal Law (Human Trafficking) (Amendment) Act 2013, regardless of whether they consented to moving to Ireland to take up work.

There are two ways victims of any crime can get compensation, Smith said recently. One is as a compensation order for criminal proceedings.

But, Smith says, this requires a conviction and there has never been a conviction for human trafficking in Ireland.

There’s also the Criminal Injuries Compensation Tribunal, but you can only get out-of-pocket expenses through that route, Smith says. Migrant workers who have been trafficked to work illegally won’t have payslips and receipts, he says.

“The state needs to educate itself and become aware of the reality of trafficking,” Smith says. “This is problem that exists.”

A specific fund for victims of trafficking could be a solution, suggests Ryan, of MRCI.

People who experience trafficking for labour exploitation should be compensated not just for the wages stolen from them, and the employment rights breached, but “for the profound trauma caused by the experience”, she says.

Is it harder for the WRC to deal with cases that involve people who have been trafficked than other types of cases? Is there a need for a special process, or special compensation fund, for such cases?

“WRC is a quasi-judicial body with limited jurisdiction. Employment rights are afforded to all workers in a similar manner. Human trafficking is a criminal matter and therefore appropriate for the Courts,” a Department of Business, Enterprise and Innovation spokesperson said.

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Aura McMenamin: Aura McMenamin is a city reporter covering the south side of the city, and jobs. You can reach her at aura@dublininquirer.com.

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