ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009467

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. On 20th March 2018 the Complainant also advised the Respondent 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 his 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 7th July 2017. An initial complaint that was submitted on 6th April 2017 was also heard on the same day but 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. The Complainant maintains that from a return to work on 4th November 2016, following a period of absence due to a workplace injury, his terms and conditions changed from that of a “share fisherman” to that of a paid fisherman. The Complainant maintained from that time he was not afforded proper rates of pay, and where he alleged the Respondent also breached its obligations under his rest breaks with regard to intervals at work, daily, and weekly rest breaks. The Complainant also submitted that the Respondent is in breach of his annual leave entitlements, and his public holiday entitlements.

The Complainant was seeking compensation for these matters.

Summary of Complainant’s Case:

The Complainant suggested that part of his claims under the Organisation of Working Time Act 1997 require an extension of time in that they occurred prior to the six months allowed under the relevant legislation, and the Complainant sought an extension of the time where matters could date back to 12 months. He submitted that the reasonable cause in his case related to his nationality, and where he had a poor command of English and consequently a limited understanding of how to protect his rights and entitlements.

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. 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-00012370-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The claimant submitted that he did not receive his proper rate of pay, nor was he paid properly for his hours of work, however he wished to progress this claim under the Payment of Wages Act, submitted as a separate complaint and therefore he withdrew his Complaint under the Minimum Wage Act.

CA-00012370-002 Complaint under Section 27 of the Organisation of Working Time Act, 1997- Paid Annual Leave Entitlement

The Complainant submitted that he did not receive his annual leave entitlement, nor was he paid for his annual leave during his employment. The Complainant maintained there was no record kept of his annual leave and on occasion he was noted in the worksheets as being at home when he was in fact required to work on those days for a minimum 12 hours to repair nets.

He therefore maintained he did not receive paid annual leave from 29th June 2016 until the termination of his employment on 28th February 2017.

CA-00012370-003 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Public Holiday Entitlement

The Complainant maintained that he was not paid for his public holiday entitlements for October 2016, Christmas Day and St Stephen’s Day 2016, and 1st January 2017.

CA-00012370-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Intervals at Work Rest Break

The Complainant maintained that he was never provided with his intervals at work breaks. He explained that the working routine on the Respondent’s trawlers he worked on did not afford him the minimum intervals at work breaks as required. He advised that from the time the vessel departed harbour he could spend up to 30 days a month actually involved in fishing activities whether at sea, or in the offloading of the catch, or in preparing the vessel for sea when it was in port. He maintained there was no record of the rest breaks provided to him which supports his contention that he was not provided with his intervals at work breaks or compensatory rest.

In addition to not being afforded his Intervals at Work breaks while at sea, the Complainant maintained that from 3rd December 2016 to 12th December 2016, and from 19th December 2016 to 27th of December he worked a 39-hour week but did not received his intervals at work breaks during this time when the vessel was alongside. He submitted that from the 3rd to 23rd December 2016 the vessel was alongside but he was required to work between 12 to 14 hours a day preparing nets and that he would not have received any rest breaks during these days.

CA-00012370-005 Complaint under section 27 of the Organisation of Working Time Act, 1997- Daily Rest Break

The Complainant maintained that he was never provided with his daily rest breaks when at sea. He explained that the working routine on the fishing vessels he was employed on did not afford him a minimum of at least six hours rest break in accordance with SI 709/2003. The Complainant described his work practices as working on a floating factory.

The Complainant submitted that his working hours at sea would be determined by the fishing activities and where typically he would be required to attend the nets when casting and hauling them, sorting and cleaning the fish after a catch, and doing a watch on the bridge. He contended up to 5 or 6 nets could be cast a day, and where a net could be in the water for approximately four hours but invariably during these four hours he was involved in the associated fishing activities.

He maintained the that fishing vessel could be operational for periods of up to 30 days, and in particular from the 7th to the 28th November 2016 he was at sea for 27 days; between the 3rd and 23rd of January 2017; and again, from 23rd January to the 25th of February 2017 he would have been actively involved in the fishing activities as described above.

The Complainant submitted that when at sea the only rest break of six hour s or more he would get were times when the vessel was on passage to and from the fishing grounds, but during this time he would be preparing or securing the vessel for/after fishing and he would also have to maintain a bridge watch so he did not always get the six hours break. He advised he worked the following days without his daily rest break:

• 7th November 2016 to the 20 November 2016, amounting to 27 days without being provided with his daily rest periods, and
• 23rd of January 2017 to 25th February 2017, amounting to 33 days without being provided with his daily rest periods.

The Complainant provided photographs of where he would typically have to take rest breaks which demonstrated him lying on the deck of an alleyway on the vessel in his full protective clothing.

The Complainant maintained that the Respondent had no records of the breaks provided to him. He further maintained that the records of his working hours were not accurate and where he did not sign these records.

CA-00012370-006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Weekly Rest break

The Complainant maintained that he was not provided with his weekly rest break, or compensatory rest as follows:

• • 7th November 2016 to the 20 November 2016 amounting to 27 days without being provided with his weekly rest periods

• 23rd of January 2017 to 25th February 2017, amounting to 33 days without being provided with his weekly rest periods

CA-00012370-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

The Complainant withdrew this complaint acknowledging that it was submitted as part of an earlier complaint.

CA-00012370-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

The Complainant withdrew this complaint acknowledging that it was submitted as part of an earlier complaint.

Summary of Respondent’s Case:

The Respondent submitted that the Workplace Relations Commission carried out an inspection of the Respondent’s vessel in which the Complainant had been working, and that the vessel was 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 the complaint cannot be looked at for a second time.

The Respondent also maintained that some of the complaints were out of time and there was not a reasonable cause for the Complainant’s late submission of complaints under the Organisation of Working Time Act. The Respondent contended that as the Complainant had been working in Ireland for some time where he had successfully submitted a complaint form to the WRC on his own behalf, and where the Complainant was in a position to work with no difficulty on an English-speaking boat where he had demonstrated significant command of the English language and was aware of his rights. The Respondent therefore objected to an extension of time with regard to the claim under the Organisation of Working Time Act and submitted that the claim should be limited to a period of six months running from the end of August 2016 to the 28th of February 2017. The Respondent argued that as the complaint was made in July 2017 it was therefore only the complaints after 7th December 2017 that can be considered.

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 he 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.

In general, the Respondent denied that the vessel was a floating factory as alleged by the Complainant, or at all. 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 for rest breaks, and that he was paid correctly. The Respondent contended that the records provided by the Complainant were not shared with the Respondent (during the first hearing) and therefore it was not in a position to comment on these.

CA-00012370-001 Complaint under section 24 of the National Minimum Wage Act, 2000

As this complaint was withdrawn it was not responded to. 

CA-00012370-002 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Annual Leave Entitlement

The Respondent objected to any extension regarding the time limits of six months to make a complaint for the granting of annual leave. Notwithstanding, the Respondent maintained that the Complainant did receive his annual leave in January 2016 when he returned to Egypt for number of months. The Complainant submitted documents that he maintained represented record of the leave taken.

The Respondent maintained that the Complainant was provided with annual leave to return home in around Christmas 2016 and he did not return to work for two months. The Respondent rejected the complaint that the Complainant was not paid for his annual leave.

CA-00012370-003 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Public Holiday Entitlement

The Respondent objected to any extension regarding the time limits of six months to make a complaint regard to the granting of public holiday entitlements. Notwithstanding, the Respondent maintained the Complainant did receive his public holiday entitlements.

CA-00012370-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Intervals at Work Rest Break

The Respondent objected to an extension regarding the time limits of six months to make a complaint regarding the granting of intervals at work rest breaks. Notwithstanding the Respondent maintained that it complied with its requirements under the Organisation of working Time Act and specifically regulation 6 of SI 701/2003. The Respondent submitted that it maintained the correct records and the intervals at work rest breaks were provided in accordance with the regulations.

CA-00012370-005 Complaint under section 27 of the Organisation of Working Time Act, 1997- Daily Rest Break

The Respondent advised that the concept of the Complainant working 18 to 20 days each and every month was an inaccurate representation and demonstrates a distinct misunderstanding of the way in which the fishing vessel operates. The Respondent maintained that the log sheets for working time and rest breaks were signed by the Complainant and are relied upon as contemporaneous evidence of the actual hours worked. It denied that the Complainant was not able to take his appropriate rest breaks.

CA-00012370-006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Weekly Rest break

The Respondent denied that it failed to comply with the Organisation of Working Time Act or with SI 709/2003, and in particular regulation 6 thereof. 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.

CA-00012370-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

As this complaint was withdrawn as it was dealt with in an earlier complaint the Respondent was not required to respond.

CA-00012370-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

As this complaint was withdrawn as it was dealt with in an earlier complaint the Respondent was not required to respond.

Findings and Conclusions:

The Respondent objected to the extension of time in the Complainant submitting his complaint.

In accordance with S41(8) of the Workplace Relations Act, 2015, an Adjudication Officer may entertain a complaint referred to the Director General after the expiration of the six months beginning on the date of the contravention to which the complaint relates to, but not later than 6 months after such expiration, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Therefore, I must first consider and decide upon whether the Complainant had reasonable cause for the delay in submitting his complaint.

When making an application for an extension of time, the grounds should be carefully presented and backed by evidence. The standard of “reasonable grounds” is a relatively low threshold. The Labour Court in Cementation Skanska v Carroll DWT 38/2003 (a case under OWTA 1997) in considering whether reasonable cause exists has decided it is for the claimant to show that there were “reasons which both explain the delay and afford an excuse for the delay (and)… the explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd… The reasonable grounds must be an objective standard, applied to the facts and circumstances known to the claimant at the material time”. Accordingly, “the claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon and had those circumstances not been present, he would have initiated the claim in time”. The Court also observed that a short delay might require only a “slight explanation” whereas a long delay might require “more cogent reasons”. In consideration as to whether the Complainant has met this requirement, I acknowledge that his first complaint was submitted on 6th April 2017, some five weeks after his termination of employment and where he did not have a representative nominated at that time. For the complaints being considered under the submission of 7th July 2017, which refers to the complaints within, the Complainant had appointed legal advisors.

The Respondent maintained the Complainant had sufficient knowledge of his rights, and was sufficiently competent in the use of English so that he had no reasonable cause to delay submitting his complaint. The Complainant maintained that the delay was due to potentially being trafficked and therefore his status was uncertain, in addition to having a poor command of English. I note the Complainant has clearly withdrawn his allegations of human trafficking, having taken legal advice on the matter. Notwithstanding it is clear his employment relationship changed on 24th October 2016 when the Complainant ceased being employed as share fisherman and was appointed on a contract of employment.

I am satisfied that the initial complaint lodged on 6th April 2017, which is subject to a separate but parallel hearing, referred to his working hours, but referenced his pay element only. This complaint was made without representation.   I am also satisfied that evidence presented by the Complainant of text messages he sent to the Respondent following his termination of employment in February 2017 demonstrates the Complainant’s attempted to have matters resolved before making a complaint to the WRC. His use of English in these texts whilst functional does not demonstrate a good command of the language. It appears from the Respondent’s return texts that rather than addressing the Complainant’s concerns, the Respondent appeared to address the repatriation of the Complainant to Egypt, and where the Respondent also appeared to be unsure with the number of days the Complainant had actually spent at sea in December 2016.

I am therefore satisfied that the Complainant, as a foreign and non-EEA national, had little knowledge of his rights, but was seeking as best he could to have the matter resolved after the left his employment. The Respondent’s text messages back to the Complainant appeared to avoid addressing the concerns raised by the Complainant. I am also satisfied that it was only when the Complainant sought legal advice that he became aware of the extensiveness of the potential breaches that existed, and it was at that stage he submitted a more detailed complaint on 7th July 2017, which contained the complaint under consideration within this finding. On that basis I am satisfied that the Complainant has explained the reason for his delay in making his complaint, and had he been more aware of his rights at the time he would have made a more comprehensive submission, as he did do on 7th July 2017, which in any event is less than six months after his last day of employment where he has alleged breaches were continuing up to that time. Under these circumstances I find the delay was reasonable, and therefore I have decided to entertain this complaint in accordance with the powers inferred on under S41(8) of the Act.

CA-00012370-001 Complaint under section 24 of the National Minimum Wage Act, 2000

This complaint was withdrawn.                                                       

CA-00012370-002 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Annual Leave Entitlement

Section 19(1)(a) of the Organisation Of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours. Prior to the 24th October 2016 the Complainant was a share fisherman, and his contract changed on that date to an employed fisherman. Notwithstanding he was on a fixed term contract from June 2016, and this appears to have followed a previous fixed term contract.

I find that the records provided by the Respondent are not accurate, particularly as the Complainant is recorded as working on 29th August 2016 to 2nd September 2016, yet he was actually attending hospital on 30th August 2016 with an injury to his finger he sustained on 29th August 2016 and where he was certified unfit for work for one month from 29th August 2016. The records of the Respondent show the Complainant was ashore in Egypt from 3rd September 2016 until 5th November 2016. The Respondent therefore maintains that as the Complainant was in Egypt and he has received his annual leave entitlement. Notwithstanding, Section 86(1) of the Workplace Relations Act 2015 made amendments to the Organisation of Working Time Act 1997 and makes legal provision for the accrual of annual leave entitlement during a period of certified sick leave.

Having reviewed the records maintained by the Respondent I have concerns regarding their accuracy, and I concur with the Complainant that the signatures purporting to be his appear different on some of the records required under SI 709/2003, and where the records are not signed by the Complainant for some of the weeks. This raises serious credibility with regard the Respondent’s evidence. The respondent also failed to provide annual leave records for the Complainant.

As the Complainant has worked over 1,365 hours for the annual leave period since changing his contract from a share fisherman for 2016 he is entitled to paid annual leave equal to one-third of a working week for each month in the leave year in which he worked, and where he also as accrued an annual leave entitlement for 2017.

In accordance with section 23 of the Act, where an employee ceases to be employed and the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I therefore find that the Complainant was entitled to 4 working weeks paid annual leave for 2016, and two thirds (.66) of a working week for the time he has worked during 2017, amounting to a total entitlement of 4.66 weeks annual leave.

CA-00012370-003 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Public Holiday Entitlement

Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays.

The parties disagreed with regard the Complainant availing of public holiday entitlements. As I have found the records of the Respondent not to be credible, I therefore find on the balance of probability the Complainant did not receive his public holiday entitlements for 2016, and January 2017. I therefore find the Complainant is entitled to payment for 10 public holidays for the period 2016 and 2017.

CA-00012370-004/005 and 006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Intervals at Work Rest Break, Daily Rest Break, and Weekly Rest Break

Regulation 5 of SI 709/2003 place a general duty of sea-going fishing vessel owners and masters where it shall be the duty of every owner and every master of a sea-going fishing vessel to ensure that workers on board a sea-going fishing vessel are provided with at least the minimum hours of rest, or are required to work no more than the maximum hours of work specified in Regulation 6. Regulation 6 of SI 709/2003 requires that, subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limits on hours of work and rest in respect of a worker on board a sea-going fishing vessel shall be a maximum hours of work which shall not exceed 14 hours in any 24-hour period, and 72 hours in any seven-day period, or that minimum hours of rest which shall not be less than 10 hours in any 24-hour period, and 77 hours in any seven-day period. It further requires that hours of rest may be divided into no more than two periods, one of which shall be at least 6 hours in length and the interval between consecutive such periods shall not exceed 14 hours; and a worker on board a sea-going fishing vessel who is on call shall have an adequate compensatory rest period if his hours of rest are disturbed by call-outs to work. Regulation 9 sets out the requirement to maintain working tome records on a sea fishing vessel.

However, 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 rest breaks.

CA-00012370-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

This complaint was withdrawn.

CA-00012370-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

This complaint was withdrawn.

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.

CA-00012370-001 Complaint under section 24 of the National Minimum Wage Act, 2000

As this complaint was withdrawn I am not required to issue a decision on this matter.     

CA-00012370-002 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Annual Leave Entitlement

A decision of an Adjudication Officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

1. declare that the complaint was or, as the case may be, was not well founded,
2. require the employer to comply with the relevant provision,
3. require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

In the circumstances I find that the Respondent was in breach of Section 19 of the Organisation of Working Time Act, 1997and order the Respondent to pay the Complainant the sum of €1,427.40 for the unpaid annual leave during 2016, plus €237 for the unpaid annual leave during 2017. I also award €1,000.00 in compensation, i.e. a total payment of €2667.40 must be paid to the Complainant.

CA-00012370-003 Complaint under section 27 of the Organisation of Working Time Act, 1997- Paid Public Holiday Entitlement

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

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not receive his entitlements for 10 public holidays, I decide the complaint is well made and I require the employer to pay the Complainant arrears of €686.35 for his public holiday entitlements.

CA-00012370-004/005 and /006 Complaint sunder section 27 of the Organisation of Working Time Act, 1997- Intervals at Work Rest Break, Daily Rest Break, and Weekly Rest Break

I am precluded from making any decision of these complaints.   

CA-00012370-007 /008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements and Public Holiday Entitlements

These complaints were withdrawn.

Dated:   4th September 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Organisation of Working Time, Public Holidays, Annual Leave entitlements, Sea Fishing Activities. SI 709/2003.