HR Matters - December 2012

In HR Matters, the Arthur Cox Employment Law Group Newsletter, we look at a range of issues across our practice area and some recent and prospective developments in law. In the Newsletter, we highlight some key issues, and address queries that may have arisen for our clients.

Arthur Cox has Ireland's largest dedicated employment and industrial relations law practice, consistently top ranked in the area, with considerable experience in advising on a vast range of complex employment and industrial relations issues for a wide variety of clients at both national and global levels. The Employment Law Group provides an extensive range of legal services to clients on all aspects of national and EU employment law and industrial relations. The group also provides a skilled mediation service.

COSTS OF INTERLOCUTORY INJUNCTION APPLICATION

A recent High Court decision on costs is important given the frequency of applications for interlocutory relief in employment law. In Tekenable Ltd v Morrissey, Ghent and Critical Village Ltd [2012] [1590P] the plaintiff employer sought various interlocutory injunctions. When the matter came before the Court it was informed that the injunction application had been settled, except for the issue of costs, on the terms of an undertaking to be given by the defendants. The Court made the order in the terms sought. It was envisaged that the main proceedings would continue. The employer then sought the costs of the interlocutory application against the defendants, submitting that the undertaking given to the Court was equivalent to a Court order. The defendants contended that no order should be made or alternatively that, at worst, the costs should be reserved to the trial judge.

The High Court, applying the Rules of the Superior Courts and relevant case-law, made an order reserving the costs of the application for the interlocutory injunction, including the costs of the application before the Court, to the trial judge. The judge suggested that parties who compromise such applications give careful consideration to including in their agreement either (a) a provision as to by which of the parties the costs of the application for the interlocutory injunction are to be borne; or (b) a provision that those costs be reserved to the trial judge.

EMPLOYMENT RIGHTS OF UNDOCUMENTED WORKERS

In Hussein v The Labour Court & Younis [2012] IEHC 364 the unwitting effect of the Employment Permits Act 2003 on the employment rights of undocumented workers became apparent. The employee, whose work permit had run out, resigned from his employment and made a series of claims under various employment statutes. The employer strongly disputed them. A Rights Commissioner and the Labour Court upheld the claims. The employee's solicitor wrote on several occasions to his employer seeking payment of the sums awarded in accordance with the Labour Court determination. The employer sought judicial review in the High Court. At the heart of his case was that the employee had no standing to invoke the protection afforded by the employment legislation of the State, since by definition any contract of employment was an illegal one in the absence of an employment permit.

The High Court acknowledged that "in some cases" the court had no alternative but to hold...