Complainant

Respondent

Anonymised Parties

A Fisherman

A Fishing Company

Representatives

Rosemary Mallon B.L. instructed by Mason Hayes & Curran Solicitors

Dermot F. Conway Conways Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016526-001

27/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00016526-002

27/12/2017

The complainant was employed by the respondent from 25th October 2017 until 21st November 2017. The complaint relates to three Fishing Trips that took place in that time. The complainant is a Fisherman and is a non-EEA National.

The complainant was employed by the previous owner of the Fishing Boat and following his death, the previous owner’s wife became the complainant’s employer. The complainant was employed in line with the provisions of the non-EEA Crewmen and the Atypical Worker Permissions Scheme as outline in a Memorandum of Understanding agreed by State parties in 2016 relating to non-EEA workers engaged in the sea fishing sector. The complainant was previously in receipt of a contract of employment and was paid for every hour worked in line with the provisions of the contract.

In or around June 2017, the complainant’s employer sold the boat to the respondent. At this point the complainant had returned to his home country on holidays and returned to Ireland in October 2017.

The parties furnished written submissions at the adjudication hearing. Supplemental documentation was requested from both parties. The date of the last submission received was 26th November 2018.

The respondent raised a number of preliminary issues in relation to the complaint. Firstly, the respondent sought an adjournment on the basis that it had only received the submissions of the complainant the day before the hearing. Secondly, the respondent stated that the Workplace Relations Commission did not have jurisdiction to hear the complaint as the complainant was a self-employed share fisherman and not an employee and did not hold valid permission to work in the State for the period in question. The respondent cited the case of Hussein v Labour Court &Anor [2012] IEHC 364 in support of its position on this issue. The respondent also stated that documents such as a share fisherman crew logbook and crew agreement confirm the complainant’s status as self-employed. Thirdly, the respondent contended that the complaint was out of time.

The complainant’ representative did not accept that there were legitimate grounds to grant an adjournment of the matter. In relation to the employment status of the complainant, the complainant stated that the complainant’s status as an employee was clear by virtue of the Memorandum of Understanding agreed by State parties in 2016 relating to Atypical worker permission for non-EEA workers engaged in the sea fishing sector. The complainant’s representative stated that the complainant had a letter of approval in line with the provisions of the scheme in respect of his previous employers on the same boat and was employed under a contract of employment as an employee. In relation to the time limit issue, the complainant’s representatives stated that the complaint was within time.

I declined to adjourn the adjudication hearing as all parties were present. I confirmed to the parties that both sides would be given additional time to submit further information and responses if it were deemed necessary. Both parties submitted additional information after the adjudication hearing had concluded.

In relation to the employment status of the complainant, it was stated in evidence by the complainant that the respondent and its Solicitor were in the process of having the complainant’s letter of approval changed to reflect the complainant’s new employer but that this had not happened in the short number of weeks that the complainant was employed by the respondent. The complainant’s evidence on this issue was not contradicted or challenged by the respondent. I accept the complainant’s position on this issue that he worked for the previous owners under a contract of employment and received an hourly rate of pay for every hour worked as well as a periodic share of the catch.

The respondent stated that the complaint form submitted to the WRC relates only to the fact that the complainant had not received the appropriate share thereby he accepted that he was engaged as a share fisherman. I do not accept this contention as the complainant always received a share previously as well as a wage and it was always the complainant’s understanding that the documentation relating to his employment was being dealt with.

In all of the circumstances of this issue, based on the fact that the respondent was unable to adduce evidence to confirm the complainant’s employment status as well as the reality of what occurred on a day to day basis and based on the evidence of the complainant, I am satisfied that the complainant was an employee of the respondent.

In relation to the time limit issue, the complaint was submitted to the WRC on 27th December 2017. The cognisable period of the complaint is the preceding six-month period from the date the complaint was received. (28th June 2017 to 27th December 2017). The entirely of the complainant’s employment with the respondent is within the cognisable period of the complaint.

In relation to the preliminary points raised by the respondent, I find that the complaint is within time and that the complainant was an employee of the respondent and was not a share fisherman as claimed.

The complainant stated that he undertook three fishing trips and was paid €1,819 for two of the trips and received no payment for the third trip. The complainant stated that payment for the first two trips was lodged to his bank account after he returned from the third trip on or about 21st November 2017.

The complainant stated that while he was employed by the previous owner, he was paid an hourly rate of pay for all hours worked in line with his contract of employment. The complainant stated that he also received a share of the value of each catch approximately every three months.

The complainant contends that he was an employee of the respondent and that the necessary documentation was being put in place with the respondent and its Solicitors. The complainant stated that when he received €1,819 for the first two fishing trips, the amount was well below what he should have received for the hours that he had worked. The complainant stated that he worked approximately 20 hours per day on each fishing trip for approximately 28 days in total.

The complainant also stated that he was aware, based on his experience and how much fish was caught that he should also have received a sizeable share of the catch as he had done previously and in line with the terms of his employment with the previous employer.

The respondent stated that the complainant was not an employee. The respondent contends that the understanding was that the complainant was a share fisherman and was paid on that basis. The respondent contends that the complainant was not paid for the third trip as the fish from that trip are sold prior to payments being made.

By virtue of the Memorandum of Understanding agreed by State parties in 2016 relating to Atypical worker permission for non-EEA workers engaged in the sea fishing sector the complainant was employed by the previous owners of the boat under a contract of employment. The contract provided that the complainant would be paid not less than the National Minimum Wage for each hour that he worked. The boat was subsequently sold to the respondent in or about June 2017.

The respondent was unable to adduce evidence to confirm the complainant’s employment status as a share fisherman. On the basis of what occurred on a day to day basis and based on the evidence of the complainant, I am satisfied that the complainant became an employee of the respondent when it took over ownership of the boat.

On the uncontested evidence of the complainant and based on the fact that the respondent did not provide adequate working time records, I accept that the complainant worked 20 hours each day for each day of the fishing trips. The fishing trips took place from 25th Oct 2017 to 1st November 2017, 2nd November 2017 to 14th November 2017 and 15th November 2017 to 21st November 2017. There were 28 days of fishing in total. Accordingly, I have calculated that the complainant was entitled to receive 560 hours x €9.25 per hour. The total earnings due to the complainant were €5,180.00. The complainant was paid €1,819.00 which left a shortfall of €3,361.00.

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991 states as follows:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I conclude on the basis of the above that the complainant has not been paid appropriately and that the respondent has breached the legislation with respect to the complainant’s employment.

Having considered submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €3,361.00 in respect of unpaid wages.

The worker contends that he was unfairly dismissed from his employment after returning from a fishing trip with the employer. The worker stated that he undertook three fishing trips for the employer and by the time he had returned from the third trip on or about the 21st November 2017, he had still not received any payment for the three trips. The worker stated that he was told by the employer that he was required to attend for work the following day but did not do so as he had been told the payment would be in his bank account, which it wasn’t. The worker confirmed that the payments for the first two trips were made on 22nd November 2017 and no payment at all was made for the third trip.

The worker stated that he then contacted the employer’s solicitor in relation to his letter of approval and contract of employment as he believed the employer was in contact with its solicitor in relation to the required documentation. The worker stated that he then contacted the employer and was told that his employment was being terminated, and he would not be receiving any payment for the third fishing trip. The worker is seeking compensation in relation to the unfair dismissal.

The respondent stated that the worker was not unfairly dismissed. The respondent reiterated its position that the worker was a self-employed share fisherman and that he did not attend for work on 22nd November 2017.

In relation to this dispute I find as follows:

The worker was informed on his return from the third fishing trip that payment would be in his bank account. The worker did not attend for work on 22nd November 2017 as he did not receive payment for any of the three fishing trips as promised. He stated that he contacted the employer’s solicitor in relation to his contract of employment and then contacted the employer in relation to the payment that was due to him.

The worker stated that when he contacted the employer he was told his employment was being terminated and he would not be paid anything for the third fishing trip.

In all of the circumstances of this dispute, and as there were no performance or issues raised, I can only conclude that the worker was either dismissed for querying payments that were due to him or for not attending for work on 22nd November 2017. In my view, there was no valid reason put forward to explain the worker’s dismissal.

Having considered the submissions of both parties, I find that the worker was unfairly dismissed as claimed. I recommend that the employer pay the worker €2,000 in compensation.

Payment of Wages, Unfair Dismissal