ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008053

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/03/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 by me and to present to me any evidence relevant to the complaints.

The Complainant and Respondent attended the first hearing on 28th September 2017 where this hearing was adjourned due to insufficient time to have all the matters considered. Objections were also raised by the Respondent at the first hearing in relation to the allegations regarding legality of the Complainant’s employment as a non-EU citizen. A second hearing took place on 22nd March 2018.

On 20th March 2018 the Complainant submitted to the Respondent that it confirmed it had provided its submission at the 28th September 2017 hearing, and where the contents of that submission remained unchanged. The Complainant also advised the Respondent on 20th March 2018 that for the avoidance of doubt, there was no suggestion that the Respondent had any knowledge of and/or involvement in the human trafficking of the of the Complainant.

At the second hearing on 22nd March 2018, a representative from the Respondent attended the hearing and advised that the Respondent was seeking a further adjournment of the hearing, and that the Respondent would not be in attendance at the second hearing in light of the Respondent’s contention that the Complainant had failed to submit details of its complaint, and that it was seeking the withdrawal by the Complainant to any reference with regard to allegations in relation to human trafficking on behalf of the Respondent.

I am satisfied having carefully considered the representations made by the Respondent that the Respondent had been provided with details of the complaint on 28th September 2017, and that the Complainant in his correspondence to the Respondent on 20th March 2018 had confirmed his withdrawal of the matter regarding an allegation of human trafficking. As such, and based on the submissions made, I find no reason for the Respondent to have excused himself from the hearing or that there was any reason which created an obstacle to affording the Respondent a fair hearing on 22nd March 2018. The Respondent declined the opportunity to attend the second hearing.

This decision is focussed on the complaints raised in the Complainant’s submission to the WRC dated on 6th April 201. A further complaint that was submitted on 7th July 2017 was also heard but, the second mentioned complaint is subject to a separate decision.

Background:

The Complainant, an Egyptian national, was employed as a Fisherman from 29th June 2016 until 28th February 2017. Prior to June 2016 he was employed as a share fisherman. The Complainant maintains that from a return to work on 23rd October 2016, following a period of absence due to a workplace injury, he was not afforded proper rates of pay, and where he alleged the Respondent also breached its obligations under the Organisation of Working Time Act, in that he was required to work longer hours than the maximum 48 Hour weekly average.

The Complainant was seeking compensation for these matters.

Summary of Complainant’s Case:

CA-00011036-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complainant submitted that from October 2016 to the end of February 2017 he was only paid for a 39-hour week, however he contended would have worked hours in excess of that time over the period. In particular he submitted he would work up to 16 hours a day when at sea, and 12 hours a day when the vessel was tied up alongside. He advised that prior to October 2016 he would have been paid as a Share Fisherman, but his contract of employment changed to where he was to be paid minimum wage for each hour he worked. He submitted that when he was working at sea or when the vessel was tied up his hours would have been in excess of 39 hours per week, but he only received payment of 39 hours per week from November 2016 until 25th February 2017 when he terminated his employment.  

The Complainant submitted that his contract of employment stated that he will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. He advised that his contract further stated he would be paid weekly, including during periods of inactivity/boat-tie up, an amount not less the National Minimum Wage for 39 hours, which equates to minimum annual wage of €18,556, subject to the employer being entitled to the dock full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction in €54.13 Euro per week or €7.73 per day). On that basis the Complainant maintained it was clear that it is an express term of his contract that he is paid for every hour worked. He also maintained in accordance with his contract that when the boat is inactive, and he was not physically working that he was to be paid at a rate not less than 39 hours per week at the minimum wage rate.

The Complainant submitted that he had not signed the working hours records that the Respondent maintained that had been signed by him and certified as his hours of work. The Complainant submitted that his contract of employment stated that the employee may request, at no cost, a written statement of the average hourly rate of pay for any reference period in the previous 12 months. The Complainant maintained that he had been seeking records of his working hours from the Respondent, but these records had never been provided to him.  

The Complainant submitted that he worked an average 16 hours per day when at sea for the period 7th November to 2nd December 2016 inclusive (31 days), and from 23rd January 2017 to 25th February 2017 inclusive (33 days). This amounts to approximately 525 hours of unpaid work while at sea. He also submitted that for the period 3rd to 23rd December 2016 inclusive (20 days) the vessel was alongside but he was required to work between 12 to 14 hours a day preparing nets.

In demonstrating that he was underpaid, the Complainant submitted his P60 for the year ending 2016 (from when he worked as an employee and not a share fisherman) which indicated he was paid €3836.25 for 2016. He maintained he was paid €358.20 per week as per his weekly payslip. This he argued demonstrated he was only paid 39 hours per week over this period, yet he worked on average 16-hours a day when at sea.    

The Complainant submitted that the records maintained by the Respondent were not accurate. The Complainant contended that the records purporting to represent his time at work and time off work were not credible in that they would have, for example, recorded hours he was working when in fact he was in hospital and on sick leave due to a workplace accident. He also argued that the records were not signed by him as they were showing different signatures (e.g. for the weeks commencing 24th October to 21st November 2016 the records had a different signature to the records of 28th November, and this signature changed again on 2nd January 2017), and where a number of the weekly records had no signature. The Complainant maintained this supported his contention that the documents were not accurate and were not signed by him. The Complainant advised that he had asked for the records in July 2017 and that his request was ignored by the Respondent, and he also asked for the records in August 2017 and that request was also ignored by the Respondent. The Complainant maintained this was contrary to SI709/2003 which actually requires a copy of the record to be given to the worker.

CA-00011036-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted that he was required to work more than the maximum permitted number of hours in that the Respondent recorded him only working 39 hours per week, and that was also shown in his pay slips, but that he worked 16 hours per day while at sea.

Summary of Respondent’s Case:

CA-00011036-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Respondent submitted that the Workplace Relations Commission carried out an inspection of the Respondent’s vessels in which the Complainant had been working, and that the vessels were found to be wholly compliant with the legislation pertaining to the Complaint, including records and pay. The Respondent maintained the Complainant was interviewed by the WRC Inspector who confirmed all was in order. It was therefore submitted that as the WRC had already investigated matters up to the date of that inspection that the complaint cannot be looked at for a second time.

In response to the working time records, the Respondent accepted that it was obliged to keep the records by virtue of the Organisation of working Time act 1997, and SI 709/2003. The Respondent submitted that it had maintained working time records which were endorsed by the Complainant’s signatures, and these were available to the Complaint during his employment. As such the Respondent argued that there is no obligation on the Respondent to provide documentation which is in the Complainant’s power and position to review. It submitted that no breach with regard to maintaining records had occurred.

The Respondent submitted that at all times it maintained a workplace environment that complied with the standards required under the legislation and denied that the Complainant was treated without respect to his rights, and that he was paid correctly. The Respondent contended that records provided by the Complainant purporting to be the records it maintained were not shared with the Respondent (during the first hearing) and therefore it was not in a position to comment on these.

CA-00011036-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent denied that it failed to comply with the Organisation of Working Time Act or with SI 709/2003, and denied that that the Complainant was worked hours in excess of the working time regulation, or that the Complainant had been underpaid for his working time. The Respondent submitted that the Complainant was provided with the requisite rest periods and has denied that the regulation was grossly and consistently breached as alleged, or at all.

Findings and Conclusions:

CA-00011036-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

Section 5 (1) (b) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

The contract of employment of the Complainant states that he will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. He advised that his contract further stated he would be paid weekly, including during periods of inactivity/boat-tie up, an amount not less the National Minimum Wage for 39 hours, which equates to minimum annual wage of €18,556, subject to the employer being entitled to the dock full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction in €54.13 Euro per week or €7.73 per day).

On that basis the contract of employment entitles the Complainant to be paid for every hour worked where he was to be paid at an hourly rate not less than the national minimum hourly rate of pay. For the year ending 2016 this hourly rate of pay was €9.15, and for the year commencing 2017 the hourly rate of pay was €9.25.

With regard to the records that the Respondent was obliged to keep under the Organisation of Working Time Act, and specifically the records required under SI 709/2003, the Complainant submitted that the records maintained by the Respondent were not accurate.

Having reviewed this evidence I do not find the records of time worked by the Complainant, and upon which his pay was calculated, are credible. I therefore find that the Complainant was not paid correctly in that the Respondent failed to pay the Complainant for 525 hours of unpaid work while at sea, and 104 hours for unpaid working time whilst the vessel was tied-up. Of this time, I find the Complainant was under paid for 340.25 hours during 2016 at the rate of €9.15 per hour; and was underpaid for 288.75 hours at the rate of €9.25 per hour for 2017.

CA-00011036-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 3(2)(a) of the Organisation of Working Time Act exempts a person engaging in sea fishing from Part II of the Act (Minimum Rest Periods and Other Matters Relating To Working Time), and where SI 709/2003 sets out how the entitlements under Part II should apply. Regulation 10 of SI 709/2003 requires the Minister for Communications, Marine and Natural Resources to appoint Authorised Officers for the purposes of the Regulations.

Accordingly, as a WRC Adjudicator I am precluded from making any finding with regard to the Complainant’s working time under the Organisation of Working Time Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00011036-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act. Upon finding a complaint being well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding: “(a)(ii) the net amount of the wages (after the making of any lawful deduction therefrom) that in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, 

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of €3,113.3 for 2016, and €2,671 for 2017, total amount being €5,784.3, after the making of any lawful deduction.

CA-00011036-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I am precluded from making any decision of this complaints.       

Dated:   4th September 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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