ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00012854

Parties:

	Complainant	Respondent
Anonymised Parties	A crew member	A fishing boat owner / operator

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00017188-001	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-002	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-003	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-004	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-005	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-006	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-007	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-008	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017188-009	31/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00017188-010	31/01/2018

Date of Adjudication Hearing: 26/06/2018

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant is an Egyptian national and for the duration of the time frame that is the subject matter of the within proceedings he worked for the Respondent under this scheme. A copy of this “Atypical Working Scheme Letter of Approval” which was granted in November 2016, a copy of the rules of this scheme were made available at the hearing. Prior to this he worked from approximately June/July 2016 for the Respondent without any such letter of approval.

The Complaint, as submitted to the Workplace Relations Commission on 31/01/2018 consists of 10 individual complaints, these were as follows:

CA-00017188-001 – Complaint under the National Minimum Wage Act, 2000, withdrawn at hearing.

CA-00017188-002 – Complaint under the Organisation of Working Time Act, 1997 – paid annual leave entitlement.

CA-00017188-003 – Complaint under the Organisation of Working Time Act, 1997 – Public Holiday entitlement.

CA-00017188-004 – Complaint under the Organisation of Working Time Act, 1997 – Daily Rest periods.

CA-00017188-005 – Complaint under the Organisation of Working Time Act, 1997 – Breaks.

CA-00017188-006 – Complaint under the Organisation of Working Time Act, 1997 – Weekly Rest Periods.

CA – 00017188 – 007 – Duplication of complaint -002 – withdrawn.

CA – 00017188 – 008 – Complaint under the Organisation of Working Time Act, 1997 – working more than 48 hours per week.

CA – 00017188 – 009 – Duplication of Complaint -003 – withdrawn.

CA – 00017188 – 010 – Complaint under section 6 of Payment of Wages Act, 1991.

Complaints to be investigated total 7.

Preliminary Arguments.

Raised by Respondent.

1. The WRC has already conducted investigations into this working relationship as is evidenced by the fact that an inspection took place on or about 27th April 2017 by appointed inspectors of the workplace relations commission. The Complainant was interviewed by the WRC on that date individually and in the absence of the Respondent and or its agents who were asked to leave the room. All documentation requested was furnished and no follow-up action was required as the inspectors were satisfied that all requirements were being met and labour law and employment law were being complied with. Accordingly, this complaint being investigated today is extant. Accordingly, it is submitted that the claim to be dismissed as this WRC has already investigated the matter. As such the matter is moot to the point of the investigation.

2. Without prejudice to the foregoing, it is submitted that the adjudication in this matter should be suspended pending the investigation as to who precisely is funding and directing this complaint. I believe that the matter is being funded and directed by the International Transport Workers Federation. This is an issue I have written to the firm of solicitors on record in this matter requesting confirmation as to who precisely is funding and directing the litigation and they have refused to answer this. In addition, this particular firm of solicitors is engaged in multiple similar actions involving former crew members of fishing vessels engaged under the Non-EEA Atypical work visa scheme. Accordingly, I have written to the Law Society of Ireland to seek ethical guidance from them on the question of Maintenance and Champerty. As such, Maintenance and Champerty are illegal and unlawful and the WRC ought to concern itself as to the manner in which its adjudication function is being abused. It is fully acknowledged that the Complainant has a right to bring a complaint against the first named respondent, however, it may not be directed and funded by a third party whose motives are not the same as the Complainants.

3. The Respondent has not had sight of submissions now being furnished within the seven days required by the rules of the WRC. The claimant should not be allowed to rely on those submissions in light of the lack of specificity of detail in the form of complains submitted and as such the respondent finds itself on the back foot to know what specifically is going to be alleged especially in light of the generic nature of the allegations which are most serious. It is not appropriate that in any forum that a respondent should be ambushed. I saw that in light of other cases in which I have been involved with the same firm of Solicitors where submissions of a very substantial nature were handed in on the morning of the hearing. I wrote to the claimant’s solicitors on 20th February 2018 confirming that it would be preferable if in fact we got the submissions well before the referenced seven days. I enclose a copy of that letter

Replies from Complainant.

1. The Respondents appear to argue that because of a previous WRC inspection that the Claimant’s claims are extant. The Respondent submits that the claim should be dismissed “as the WRC has already investigated the matter”. It is submitted on behalf of the Claimant that if the claims were dismissed for this reason same would be unlawful. The Claimant is entitled to bring his claims regardless of any previous inspection carried out.

Without prejudice to the foregoing it is submitted that the inspection and its outcome is of no relevance. The Claimant is an Egyptian national. He does not speak English and when he spoke to the WRC Inspector there was no translator. His answers were given through a work colleague who translated for him. Furthermore, in advance of speaking to the WRC Inspector he and his work colleagues were told to say that everything was fine and that they got their rest breaks etc.

2. It appears that the Respondents are alleging that this case is an instance of Maintenance and Champerty and as such it is alleged that this case before the WRC is “illegal and unlawful”. It is submitted in the strongest possible terms that the jurisdiction of the Adjudication Officer in the Workplace Relations Commission is limited to complaints raised under employment legislation. The Adjudication Officer has absolutely no jurisdiction to consider any allegations concerning Maintenance and Champerty. It is submitted that any consideration of these allegations would be ultra vires the jurisdiction of the Workplace Relations Commission. It is respectfully submitted that the only forum that has jurisdiction to consider such a claim is the High Court. At the time of writing these submissions the Claimant’s legal team are unaware of any High Court proceedings issued by the Respondents alleging Maintenance and Champerty. Consequently, it is submitted that this allegation is entirely irrelevant to the hearing of these claims. Without prejudice to the foregoing it is the Claimants position that this is not a case of Maintenance and Champerty. There is nothing illegal or unlawful in relation to these cases. The Claimant does not intend to deal in detail with such allegations as same is outside the jurisdiction of the Workplace Relations Commission.

It appears that the Respondents are seeking an adjournment pending a response from the Law Society to a letter of enquiry sent by their Solicitors on 19th January 2017. This letter is merely seeking “guidance”; there is no ongoing investigation into the allegations of Maintenance and Champerty by the Law Society and it is repeated for the avoidance of doubt that the only forum which has jurisdiction to deal with such allegations is the High Court. There is no indication as to when the Law Society will reply to this letter and/or what the nature of that reply will be. In the circumstances it is submitted that an adjournment should not be granted pending a response from the Law Society.

3. The Respondent appears to raise an issue in relation to the late deliver of the within submissions. It was at all material times the Claimant’s intention to furnish these submissions well in advance of the within hearing. However, circumstances outside the control of the Claimant made this impossible. This was explained in writing in two letters to the Respondent’s solicitors. By letter dated 6th March the Claimant’s solicitors wrote to the Respondent stating inter alia:

“We refer to our letter of yesterday’s date and our call today in relation to the hearing of the above complaints. As discussed, we had scheduled a meeting with our client and Counsel last Wednesday. We were unable to meet our client due to the adverse weather conditions. Our Counsel is in Limerick from Monday to Thursday of this week at a part heard case. As a result, our Counsel was unavailable to meet our client until Friday afternoon.

Following our meeting on Friday, Counsel will be finalising our submission over the weekend. We will endeavour to furnish the submission as soon as possible on Monday. If this is not sufficient time for you, we are willing to consent to an adjournment of the case to allow you and your client more time to consider our submission”.

It is submitted that the Respondent’s Solicitors were informed of the situation and the reasons for same. There is no intention to “ambush” the Respondents as appears to be alleged in the Respondent’s submissions.

There is no prejudice to the Respondents in the late delivery of these submissions particularly in circumstances where the Claimant was and is willing to consent to an adjournment if same is required. It would be entirely unfair and in breach of natural justice if this case were to proceed to hearing without the Claimant being allowed to rely on these submissions. This is an extraordinary and unfair request on the part of the Respondents. The Claimant repeats the offer of consenting to an adjournment if the Respondents believe that they need more time to consider the Claimant’s submissions.

Adjudication Officer’s Decision – Preliminary Arguments.

1. The argument presented by the Complainant is correct, it would be unlawful to deny the Complainant a hearing due to an inspection previously undertaken by an inspector from the Workplace Relations Commission.

2. Again, I must agree with the Complainant, the representative very clearly points out that “The Adjudication Officer has absolutely no jurisdiction to consider any allegations concerning Maintenance and Champerty”.

3. There was no request made for an adjournment due to the late arrival of a submission from the Complainant. I note that had there been one there would have been no objection from the Complainant.

There was another preliminary point in relation to the identity of the Respondent. I have addressed this matter in File Ref / Adjudication Decision ADJ – 00012587.

The Complaints, as submitted by the Complainant will be heard.

Summary of Complainant’s Case:

The Complainant’s Contract of Employment.

A copy of the Claimant’s contract of employment was presented at the hearing. This is a 12-month fixed term contract commencing on 14th October 2016. The Claimant’s working scheme letter of approval was granted on 14th November 2016.

This contract is the standard form contract provided to non-EEA employees who have permits under the Scheme referred to above. There are a number of express terms of this contract of employment which are of crucial importance in relation to certain claims that the Claimant has instituted before the WRC.

Clause 5 deals with wages and expressly states:

“The employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay.

The employee will be paid weekly in arrears into the employee’s bank account.

The employee will be paid weekly, including during periods of inactivity/boat tie up, an amount not less than the national minimum wage for 39 hours, which equates to a minimum annual wage of €18,556, subject to the employer being entitled to deduct full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction of €54.13 per week or €7.73 per day).

The employer is not entitled to deduct from the employee’s wages any sum for the cost of travelling to commence employment and/or repatriation and/or the cost of training.

The employee may request, at no cost, a written statement of their average hourly rate of pay for any pay reference period in the previous 12 months.

The employee shall receive a statement of wages and deduction from wages in accordance with the Payment of Wages Act 1991”.

It is quite clear that it is an express term of the Claimant’s contract that he is to be paid for every hour he worked for the employer. It is also clear that in weeks where the boat may be inactive and he is not physically working that he was to be paid a rate not less than a 39-hour week at the minimum wage rate. Therefore, it is indisputable that it is a term of the Claimant’s contract of employment that if he works more than 39 hours in a week he is to be paid more than a 39-hour week i.e. he is to be paid for every single hour he carries out work. It is the Claimant’s position (which is dealt with in more detail before that he was not paid for all of the hours he worked).

Clause 6 of the contract deals with “Hours of Work and Break Times” and states:

“The Employee’s hours of work and minimum hours of rest will be in accordance with the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI 709/2003).

The Employer commits to maintaining records of the employee’s hours of work or rest and annual leave in accordance with the European Communities (Workers on Board Sea-Going Vessels) (Organisation of Working Time) Regulation 2003 (SI 709/2003) and the Organisation of Working Time Act 1997.

The Employer may make provision for more favourable conditions than those provided for in the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI 709/2003) as long as they comply with the statutory minimum requirements set out therein”.

This clause explicitly and expressly states that the Employer is required to comply (in relation to working time) with the 1997 Act and SI 709/2003. A copy of SI 709/2003 is attached. This clause expressly repeats that the employer is obliged to maintain records in relation to hours of work and rest as required by law.

Clause 7 relates to the Organisation of Working Time Act 1997 and states:

“The Organisation of Working Time Act 1997 will apply, where applicable, to this employment”.

This Clause speaks for itself as does Clause 11 concerning Data Protection which states:

“The Employer should make appropriate provision in the contract for compliance with their obligations to the employee pursuant to the Data Protection Act”.

THE LAW IN RELATION TO WORKING TIME RECORDS

Section 25 of the Organisation of Working Time Act 1997 deals with records and states inter alia:

“(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least three years from the date of their making.

….

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer”.

Regulation 9 of SI No 709/2003 - European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 states inter alia:

“(1) The master, or person authorised by the Master, shall maintain and the owner of a sea-going vessel shall ensure that there is maintained on board the sea-going fishing vessel a record of the daily hours of work or rest for each worker on board the vessel that complies with the requirements of paragraph (2).

(2) Each record under paragraph (1) shall

a) be complied monthly in arrears.

b) be in the form set out in Schedule 1 or in a form to substantially like effect as will enable an authorised officer to understand the particulars contained therein without difficulty.

(3) Each record maintained under paragraph (1) shall be endorsed by the master, or a person authorised by the master, and by the worker on board a sea-going vessel in question. The master, or as the case may be, a person authorised by the master shall, no later than 7 days after the last day of the calendar month to which the record relates, give the worker on board a sea-going fishing vessel a copy of the record as endorsed.

(4) The records referred to in paragraph 1 shall be retained for at least one year from the date of their making. If during that period ownership of the sea-going vessel changes, then the duty to preserve records shall be the owner of the sea-going vessel for the time being or, if the sea-going vessel ceases to be registered in the State, with the last owner before ceasing to be so registered”.

It is undoubtedly the case that it is the duty of the Respondents to keep working time records by virtue of both the Act and the S.I. The Claimant’s own contract of employment confirms this.

The Respondents in breach of the S.I. never sought the Claimant to endorse such records nor did they provide him with a copy. The Claimant when he worked for the Respondents was never provided with any such records nor asked to sign same. It is respectfully submitted that no proper records were made or kept in breach of the Act and/or the S.I.

By virtue of a personal data access request the Claimant’s solicitors were provided with a copy of working time records which are not signed by the Claimant or the Skipper and consequently are in breach of the legislation. In any event, these alleged records are wholly inaccurate. Indeed, these records contradict the position put forward by the Respondents. In their submissions the Respondents refer to the WRC Inspection on 27th April 2017 and indicate that the Claimant was interviewed on that date. In the working time records provided state that the Claimant had a day off on that date. The working time records are firstly in breach of the legislation and secondly the information set out in them is worthless as it is incorrect.

It is submitted that as the Respondents have failed to keep records as required by the Act and the S.I. that the onus of proving that they have complied with the provisions of the Organisation of Working Time Act and the S.I. is firmly on the Respondent in the within proceedings.

SUMMARY OF THE EVIDENCE TO BE PROVIDED

It is undoubtedly the case that the Claimant is in the best position to provide evidence in relation to the nature of the work he did for the Respondents, the hours he worked, the lack of rest and breaks he received and the payments he received.

However, in summary the Claimant was employed on a boat that can be best described as a floating factory. This boat would often be at sea for many days at a time. The crew was small and the Claimant and his colleagues would be fishing for prawns. His work involved inter alia:

- Putting out the nets.

- Bringing in the nets.

- Killing the prawns.

- Sorting the prawns into gender and size.

- Placing them in the deep freeze to be freeze blasted.

- Placing them in the cold room to be stored.

Once the first nets were hauled in then they were sent back out. It was frequently the case that by the time the Claimant was finished processing the prawns, the next catch was ready to be brought in and processed. It was arduous, difficult and at times dangerous work.

The Claimant often worked approximately 20-hour days. A copy of a one-page document prepared by the Claimant from memory setting out hours he worked each day was presented.

The Claimant’s payslips and bank statements are attached. In breach of the employment contract the Plaintiff was not paid in January or February 2017 as he was not required to work. This is in breach of the contract as quite simply in accordance with his contract of employment he was entitled to be paid the minimum wage for a 39-hour week for such weeks.

The Claimant accepts that he was paid his weekly wage and also on occasion was paid a share of the catch and this can be seen from his bank statements and payslips. However, it is submitted that the pay did not properly compensate him for the work carried out by him. The document prepared by the Claimant from memory illustrates that he worked 3,924 hours. When these hours are multiplied by the minimum wage the Claimant should have been paid €36,297. The Claimant’s P45 shows he was paid €24,754. Therefore, the Claimant is owed and claims in addition to the money owed for January and February the sum of €11,542.82.

The Claimant will give evidence in relation to his hours of work and rest periods. The evidence he will give in this regard is of course based on estimates and his recollection. This is the best that the Claimant can in fact do in circumstances where his employer has failed in its duty to keep appropriate records and the Claimant cannot be penalised for failure of his employer to comply with its statutory obligations.

THE LAW IN RELATION TO THE ORGANISATION OF WORKING TIME

Section 19 and 20 of the Organisation of Working Time Act provide that an employee is entitled to both annual leave and that it shall be paid. The Claimant in this case disputes that he was paid appropriate annual leave.

Section 21 of the Organisation of Working Time Act provides that an employee is entitled in respect of a public holiday to either

a) a paid day off

b) a paid day off within a month of that day

c) an additional day of annual leave

d) an additional day’s pay

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off, this subsection shall have effect as if paragraph (a) were omitted therefrom. In the course of the time frame which is the subject matter of the within proceedings, a number of public holidays occurred and the Claimant did not receive his entitlements in relation to public holidays.

Part II of the Organisation of Working Time Act 1997 deals with minimum rests periods: Section 3(2) of the 1997 Act states inter alia that subject to subsection (4) that Part II of the Act shall not apply to a person engaged in sea fishing. Subsection (4) provides that the Minister may by order provide that a specified provision or provisions of this Act or, as the case may be, of Part II shall apply to a specified class or classes of person referred to in subsection (1) or (2) and for so long as such order remains in force the said provision shall be construed and have effect in accordance with the order.

SI No. 709/2003 deals with inter alia Part II matters for employees on fishing vessels namely rest periods and hours of work. Regulation 6 of the Statutory Instrument states:

“(1) 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 either:

a) maximum hours of work which shall not exceed

i) 14 hours in any 24 hour period and,

ii) 72 hours in any 7 day period

b) minimum hours of rest shall not be less than,

i) 10 hours in any 24 hour period and,

ii) 77 hours in any 7 day period

(2) 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.

(3) A worker on board a sea-going fishing vessel who is on call shall have an adequate compensatory rest period if his hour of rest is disturbed by call-outs to work”.

It is respectfully submitted that this regulation was significantly and consistently breached by the employer.

CONCLUSION

The intention of the permit scheme for non-EEA persons working on fishing vessels was to inter alia ensure that they were paid in a fair manner in accordance with the law for the work done and to ensure that their rights to rest and breaks were protected. The Respondents actions towards the Claimant were entirely in breach of the law, the contract of employment and the intention of the scheme.

It is submitted that the Claimant in all the circumstances is entitled to the back pay due and owing to him together with significant compensation for the serious breaches of the working time legislation.

Summary of Respondent’s Case:

CONTRACT OF EMPLOYMENT

1. The First named Respondent employed the Claimant under the Scheme for employment of non-EEA Crew in part of the Irish Commercial Sea Fishing Fleet, the Claimant having been approved by letter dated 14th November 2016.

2. The terms of the contract of employment as set out in the Claimant’s submissions are correct and are accurately transcribed herein. It is accepted that the Organisation of Working Time Act, 1997 and that European Communities (Workers on Board Sea Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI No 709/2003) are applicable under the contract of employment.

3. At all material times hereto the First Named Respondent has complied with the terms of employment in the Claimant’s contract of employment and it is denied that there has been a breach of the Contract of Employment in the manner alleged by the Claimant or at all.

THE LAW IN RELATION TO WORKING TIME RECORDS

4. It is accepted that there First Named Respondent is obliged to keep working time records by virtue of the 1997 Act and SI 709/2003. At all material times hereto the First Named Respondent made and maintained working time records which were endorsed by the Claimant and have been provided to the Claimant. Whilst the Claimant submits that the breach of the said Act and SI 709/2003 is corroborated by the fact that Solicitors for the Respondent have failed and refused to provide same to the Claimant’s Solicitors, it is submitted that were the said documentation has been provided to the Claimant directly during the course of his employment, that there is no obligation on the First Named Respondent to provide documentation which is in the Claimant’s power and possession and accordingly it is submitted that no such breach has occurred. In the circumstances, it is submitted that the First Named Respondent has complied with their obligations under the 1997 Act and SI 709/2003.

SUMMARY OF EVIDENCE TO BE PROVIDED:

5. As the Claimant sets out it is a matter for the witnesses at the hearing of this matter to deal with the evidence to be given in support of the Claimant’s claim in relation to the alleged breaches by the First Named Respondent.

6. For the avoidance of doubt, it is submitted that at all material times hereto the First Named Respondent complied with the Organisation of Working Time Act, 1997 and that European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI No 709/2003) the Payment of Wages Act 1991 and the National Minimum Wages Act, 2003.

7. The First Named Respondent at all times maintained a workplace environment that complied with the standards required under the legislation and it is denied that the Claimant was ill treated with respect to the nature of the work, the hours worked, the rest periods and payment as alleged or at all.

THE LAW IN RELATION TO THE ORGANISATION OF WORKING TIME:

8. It is not accepted, however, that the Claimant did not receive his entitlements in relation to public holidays, nor is it accepted that the Claimant was not paid for annual leave.

9. At all material times, hereto the First Named Respondent complied with SI 709/2003 and in particular Regulation 6 thereof and provide the Claimant with the requisite rest periods and it is denied that this regulation was grossly and consistently breached by the employer as alleged or at all.

CONCLUSION:

10. It is submitted that the First Named Respondent has complied with the scheme for the non-EEA working on fishing vessels. At all material times hereto, the First Named Respondent has ensured their compliance with the relevant legislation and terms of employment and facilitated any inspection for independent review by the relevant bodies.

11. The First Named Respondent was subject to an inspection by the Workplace Relations Commission for the purposes of compliance with employment rights and employment perils. Upon conclusion of the inspection process the First Named Respondent was found to be compliant with the employment rights and employment permits legislation in or around 27th April 2017.

12. When the Claimant made his decision to leave the employment of the First Named Respondent, the First Named Respondent, in accordance with Clause 14 of the Claimant’s contract of employment and this process was facilitated by XXXX on behalf of the First Named Respondent and in accordance with the procedure provided.

The First Named Respondent seeks the following, namely,

1. A Declaration that the matter is moot as the WRC has already investigated this matter and found all to be in order.

2. That there exists an abuse of process as per the law pertaining to maintenance and champerty.

3. An Order dismissing the Claimant’s claim herein.

SUPPLEMENTAL SUBMISSIONS ON BEHALF OF THE RESPONDENT

PRELIMINARY ISSUES

1. The Respondent relies on his earlier submissions

2. It is not accepted that the Claimant has limited English and was perfectly capable of communicating whilst on board.

3. When the fishing vessel is steaming it is travelling from one area to another. During those times there will be no work for the crew only the Master and the Engineer. It is not the case that at these times that the Claimant would be working.

THE RESPONDENT’S POSITION

THE LAW IN RELATION TO WORKING TIME RECORDS

1. The Law as set out in the Claimant’s submissions is accepted. It is accepted that the Respondent is obliged to keep working time records by virtue of the 1997 Act and SI 709/2003. At all material times hereto, the Respondent made and maintained working time records. These have been provided to the Claimant. The Claimant submits that there is a breach because they are not signed by the Claimant, this particular SI applies to the operations of the Marine Survey Office. It is submitted that the same records were inspected by the WRC during its inspection on board the vessel and no objection was made and no prosecution ensued. The records do record the time and it is noted that a technical objection is now being raised.

2. In relation to the requirements of the WRC to date during the course of its inspections this has not been a requirement. It can be the case that a WRC Inspector and a WRC Adjudicator would look at the same issue differently. To do so would create an impossible position for any employer who is trying to be compliant. Further, it is not fair that an employer would think that they are compliant, on foot of a WRC inspection only to find out that by continuing to keep records the same way, after the approval of a WRC Inspector, only to find out that they are not.

THE CREDIBILITY OF THE CASE

1. On the last occasion on the morning of the hearing, at the back of Submissions, a document was attached purporting to be a list of dates and hours which the Plaintiff allegedly work.

2. On that sheet there are days which are claimed where the vessel was not out at sea at all. There are other dates he has claimed he was working when he was not as the vessel was steaming i.e. not working.

3. In examining the dates when the vessel was not at sea, there are a total of 38 days at sea where it is claimed that the vessel was at sea. This immediately removes 770 hours from the Claimant’s version of events. We have taken the Claimant’s own form and marked with an “X” days where the vessel was not at sea.

4. There is also a substantial amount of time to be deducted when the vessel was steaming. This is evident from the log sheets. The log sheets in question come from the Electronic Communities Log book. This is a book which must be filled in by 24:00 every single day and transmitted to the Irish Naval Service and the Sea Fisheries Protection Authority. Once submitted it cannot be tampered with or changed. These two bodies also received a burst from the vessel every two hours giving speed and direction of the vessel which they use to assist in verifying all of this data. The failure to fill in at midnight will be detected in real time and it is a criminal offence for the Owner and or Skipper of the vessel.

5. The Log sheets verify the date, time, position catch etc of the vessel. The log sheets are used as evidence in Criminal proceedings as referred to as above. I enclose these log sheets. It can be seen that there is a real difference in the operating times of the vessel and what the claimant has claimed.

Findings and Conclusions:

There is much to be considered prior to reaching a conclusion on any aspect of these complaints.

Contract of Employment.

Point 1 of the Contract of Employment as presented states inter alia:

1. Applicable Law. “This contract is subject to the laws of Ireland”

This contract will, in particular, be governed by the Terms of Employment (Information) Acts, 1994 to 2014, the National Minimum Wages Acts 2000 and 2015, the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I.709/2003) and the Organisation of Working Time Act 1977.

The Contract as presented does not meet the minimum standard required by the Terms of Employment (Information) Act 1994.

Section 3 (1) of this legislation clearly states as follows:

3 (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say-

a) The full names of the employer and the employee

b) The address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 1963).

c) The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places.

d) The title of the job or nature of the work for which the employee is employed.

e) The date of commencement of the employee’s contract of employment.

f) In the case of a temporary contract of employment, the expected duration therefore or, if the contract of employment is for a fixed term, the date on which the contract expires.

g) The rate or method of calculation of the employee’s remuneration.

h) The length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval.

i) Any terms or conditions relating to hours of work (including overtime).

j) Any terms or conditions relating to paid leave (other than paid sick leave).

k) Any terms or conditions relating to –

i) Incapacity for work due to sickness or injury and paid sick leave, and

ii) Pensions and pension schemes

l) The period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice.

m) A reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

There is no complaint under this legislation however had all the particulars of employment been included there would not have been any confusion or argument over the identity of the employer.

The contract of employment includes a listing of the Complainant’s duties, these include assisting in the preparation of the vessel before she goes to sea, assisting with the fishing operations, the processing of the fish, general maintenance and running of the fishing operations and to assist with the landing and berthing.

Under the heading of Wages, it is noted that every hour worked must be paid for at an hourly rate not less than the national minimum hourly rate of pay.

This section of the Contract also includes the following:

The employee will be paid weekly, including during periods of inactivity/boat tie-up, an amount not less than the National Minimum Wage for 39 hours, which equates to a minimum annual wage of €18,556, subject to the employer being entitled to deduct for full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction is €54.13 per week or €7.73 per day).

In relation to Hours of Work and Break Times the contract specifies a requirement to comply with the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709/2003). The contract then goes onto say that The Organisation of Working Time Act 1997 will apply, where applicable to this employment.

One final clause addresses the subject of working time records and clearly states:

Six out of seven of the Complaints are under section 27 of the Organisation of Working Time Act, 1997.

On the first day of the hearing it was surprising that the Respondent could not produce the prescribed working time records for the Complainant. On the second day of hearing when, once again, no records were produced the only conclusion I could come to was that the records as prescribed simply do not exist.

The Complainant’s representative commented as per submission on this matter:

“This clause explicitly and expressly states that the Employer is required to comply (in relation to working time) with the 1997 Act and SI 709/2003. A copy of SI 709/2003 is attached. This clause expressly repeats that the employer is obliged to maintain records in relation to hours of work and rest as required by law”.

And

“The Claimant will give evidence in relation to his hours of work and rest periods. The evidence he will give in this regard is of course based on estimates and his recollection. This is the best that the Claimant can in fact do in circumstances where his employer has failed in its duty to keep appropriate records and the Claimant cannot be penalised for failure of his employer to comply with its statutory obligations”.

The Log Book.

The representative for the Respondent, at points 4 and 5 of his Supplemental Submission makes the following points:

4. “There is also a substantial amount of time to be deducted when the vessel was steaming. This is evident from the log sheets. The log sheets in question come from the Electronic Communities Log Book (should this be the European Communities Log-Book?). This is a book which must be filled in by 24:00 every single day and transmitted to the Irish Naval Service and the Sea Fisheries Protection Authority. Once submitted it cannot be tampered with or changed. These two bodies also received a burst from the vessel which they use to assist in verifying all of the data. The failure to fill in at midnight will be detected in real time and it is a criminal offence for the Owner and or Skipper of the vessel”

5. “The Log sheets verify the date, time, position catch etc of the vessel. The log sheets are used as evidence in Criminal proceedings as referred to as above. I enclose these log sheets at annex 2. It can be seen that there is a real difference in the operating times of the vessel and what the claimant has claimed”.

I have gone through these documents in detail and they do provide a substantial amount of information. Log sheets for 18 trips are included, these are referenced Trips 4 to 20 inclusive and trip 24 and cover a period from 2nd March 2017 to 8th August 2017 (trips 4 to 20) and from 2nd September 2017 to 7th September 2017 (trip 24).

The log sheets provide the day and time of departure of the vessel and from which port and the day and time of landing and again at which port. To clarify things, we should look at each individual trip in detail:

Trip 4.

Left Howth at 17.15 on 02/03/17 and returned Howth at 16.30 on 12/03/17. From this we can calculate that the total voyage time was 239 hours, say 10 days. The total fishing time from the log shows 8340 minutes of fishing, this is 139 hours. Divide the number of fishing hours by the number of days and this gives an average of 13.9 hours fishing per day for 10 consecutive days.

Trip 5.

Left Howth at 15.30 on 18/03/17 and returned Dunmore East at 20.30 on 25/03/17. From this can calculate that the total voyage time was 173 hours, say 7.21 days. The total fishing time from the log shows 6120 minutes of fishing, this is 102 hours. Divide the number of fishing hours by the number of days and this gives an average of 14.15 hours fishing per day for 7.21 consecutive days.

Trip 6. (trip commenced 4 hours after the previous trip ended)

Left Dunmore East at 00.30 on 25/03/17 and returned Howth at 11.00 on 27/03/17. From this we can calculate that the total voyage time was 34.5 hours, say 1.44 days. The total fishing time from the log shows 1860 minutes of fishing, this is 31 hours. Divide the number of fishing hours by the number of days and this gives an average of 23.95 hours fishing per day for 1.44 consecutive days.

Trip 7.

Left Howth at 19.30 on 31/03/17 and returned Dunmore East at 23.00 on 12/04/17. From this we can calculate that the total voyage time was 291.5 hours, say 12.15days. The total fishing time from the log shows 9240 minutes of fishing, this is 154 hours. Divide the number of fishing hours by the number of days and this gives an average of 12.67 hours fishing per day for 12 consecutive days.

Trip 8. (trip commenced 22 hours after the previous trip ended)

Left Dunmore East at 21.00 on 13/04/17 and returned Dunmore East at 20.30 on 23/04/17. From this we can calculate that the total voyage time was 240 hours, say 10 days. The total fishing time from the log shows 8220 minutes of fishing, this is 137 hours. Divide the number of fishing hours by the number of days and this gives an average of 13.7 hours fishing per day for 10 consecutive days.

Trip 9. (this trip commenced 3 hours after the previous trip ended)

Left Dunmore East at 23.30 on 23/04/17 and returned Howth at 05.00on 26/04/17. From this we can calculate that the total voyage time was 53.5 hours, say 2.23 days. The total fishing time from the log shows 600 minutes of fishing, this is 10 hours. Divide the number of fishing hours by the number of days and this gives an average of 4.48 hours fishing per day for 2.23 consecutive days.

Trip 10.

Left Howth at 16.30 on 01/05/17 and returned Dunmore East at 20.00 on 12/05/17. From this we can calculate that the total voyage time was 267.5 hours, say 11.15 days. The total fishing time from the log shows 10,200 minutes of fishing, this is 170 hours. Divide the number of fishing hours by the number of days and this gives an average of 15.25 hours fishing per day for 11.15 consecutive days.

Trip 11. (this trip commenced 6 hours after the previous one ended)

Left Dunmore East at 02.00 on 13/05/17 and returned Dunmore East at 11.00on 15/05/17. From this we can calculate that the total voyage time was 57 hours, say 2.38 days. The total fishing time from the log shows 300 minutes of fishing, this is 5 hours. Divide the number of fishing hours by the number of days and this gives an average of 2.1hours fishing per day for 2.38 consecutive days.

Trip 12.

Left Dunmore East at 22.00 on 16/05/17 and returned Howth at 07.30 on 24/05/17. From this we can calculate that the total voyage time was 177.5 hours, say 7.4 days. The total fishing time from the log shows 4980 minutes of fishing, this is 83 hours. Divide the number of fishing hours by the number of days and this gives an average of 11.22 hours fishing per day for 7.4 consecutive days.

Trip 13.

Left Howth at 16.00 on 30/05/17 and returned Dunmore East at 23.30 on 04/06/17. From this we can calculate that the total voyage time was 103.5 hours, say 4.31 days. The total fishing time from the log shows 4320 minutes of fishing, this is 72 hours. Divide the number of fishing hours by the number of days and this gives an average of 16.7 hours fishing per day for 4.31 consecutive days.

Trip 14. (this trip started 1.5 hours before the pervious one ended)

Left Dunmore East at 22.00 on 04/06/17 and returned Dunmore East at 22.30 on 11/06/17. From this we can calculate that the total voyage time was 168.5 hours, say 7 days. The total fishing time from the log shows 7140 minutes of fishing, this is 119 hours. Divide the number of fishing hours by the number of days and this gives an average of 17 hours fishing per day for 7 consecutive days.

Trip 15.

Left Dunmore East at 22.15 on 13/06/17 and returned Dunmore East at 05.30 on 20/06/17. From this we can calculate that the total voyage time was 151.25 hours, say 6.3 days. The total fishing time from the log shows 5940 minutes of fishing, this is 99 hours. Divide the number of fishing hours by the number of days and this gives an average of 15.71 hours fishing per day for 6.3 consecutive days.

Trip 16. (there is no mention of how the vessel got from Dunmore East to Castletownbere)

Left Castletownbere at 14.00 on 24/06/17 and returned Ros A Mhil at 04.30 on 06/07/17. From this we can calculate that the total voyage time was 278.5 hours, say 11.6 days. The total fishing time from the log shows 11340 minutes of fishing, this is 189 hours. Divide the number of fishing hours by the number of days and this gives an average of 16.3 hours fishing per day for 11.6 consecutive days.

Trip 17. (this trip started 5 hours after the previous one ended)

Left Ros A Mhil at 09.30 on 06/07/17 and returned Dunmore East at 05.30 on 16/07/17. From this we can calculate that the total voyage time was 236 hours, say 10 days. The total fishing time from the log shows 6720 minutes of fishing, this is 112 hours. Divide the number of fishing hours by the number of days and this gives an average of 11.2 hours fishing per day for 10 consecutive days.

Trip 18. (this trip started 9.75 hours after the previous one ended)

Left Dunmore East at 15.15 on 16/07/17 and returned Howth at 03.00 on 21/07/17. From this we can calculate that the total voyage time was 107.75 hours, say 4.49 days. The total fishing time from the log shows 4320 minutes of fishing, this is 72 hours. Divide the number of fishing hours by the number of days and this gives an average of 16.04 hours fishing per day for 4.49 consecutive days.

Trip 19.

Left Howth at 23.00 on 26/07/17 and returned Howth at 00.20 on 02/08/17. From this we can calculate that the total voyage time was 145.33 hours, say 6.05 days. The total fishing time from the log shows 7740 minutes of fishing, this is 129 hours. Divide the number of fishing hours by the number of days and this gives an average of 21.32 hours fishing per day for 6.05 consecutive days.

Trip 20. (this trip started 5 hours and 50 minutes after the previous one ended)

Left Howth at 06.10 on 02/08/17 and returned Howth at 08.00 on 08/08/17. From this we can calculate that the total voyage time was 146 hours, say 6.08 days. The total fishing time from the log shows 7440 minutes of fishing, this is 124 hours. Divide the number of fishing hours by the number of days and this gives an average of 20.4 hours fishing per day for 6.08 consecutive days.

Trip 24.

Left Howth at 04.50 on 02/09/17 and returned Howth at 08.00 on 07/09/17. From we can calculate that the total voyage time was 124.5 hours, say 5.19 days. The total fishing time from the log shows 5340 minutes of fishing, this is 89 hours. Divide the number of fishing hours by the number of days and this gives an average of 17.15 hours fishing per day for 5.19 consecutive days.

Conclusions.

It should be emphasised that the times calculated are for fishing only, they do not include time spent on other duties included in the contract of employment, these other duties include the preparation of the vessel before she goes to sea, the processing of the fish, general maintenance and running of the fishing operations and finally assisting with the landing and berthing procedures. There is no way of estimating how much time these other duties took. Equally so, the times shown above include an element of steaming time (travel time).

It is impossible against the information presented by the Respondent to accurately establish the hours being worked by the Complainant. The calculations based on the information from the log sheets is as close as one can go in relation to fishing activity and as already pointed out this does not include time spent on any ancillary activities.

I have no choice but to base my conclusions on this limited amount of information.

CA-00017188-001 – Complaint under the National Minimum Wage Act, 2000, withdrawn at hearing.

CA – 00017188 – 002 - Complaint under the Organisation of Working Time Act, 1997 – paid annual leave entitlement.

It was stated at hearing that the Complainant had received 13.3 days of annual leave. His annual leave entitlement outstanding is 6.7 days. He is due a payment for these days. Based on the National Minimum Wage I calculate that he is due a payment of €483.41. I now order the Respondent to pay this amount to the Complainant.

CA – 00017188 – 003 - Complaint under the Organisation of Working Time Act, 1997 – Public Holiday entitlement.

Both the Complainant and Respondent included copy payslips as part of their respective submissions. Both parties included the same payslips, these payslips start on 19th May 2017 and go through to the 13th October 2017. Under the heading of Hols/Bonus/Other there are two payments, the first dated 15/09/2017 for €360.75 and the second payment dated 13/10/2017 for €610.50, this total, €971.25 equates to the annual leave paid to the Complainant. There is no indication from the payslips that any Public Holiday entitlement was paid. The Complainant worked for the Respondent from 01/11/2016 to the 13/10/2017, during this period there were 8 Public Holidays. I now order the Respondent to pay the Complainant the sum of €575.64 (2 days at €9.15 per hour plus 6 days at€9.25 per hour).

CA-00017188-004 – Complaint under the Organisation of Working Time Act, 1997 – Daily Rest periods.

S.I.No. 709/2003 – European Communities (Workers on Board Sea-Going Vessels) (Organisation of Working Time) Regulations 2003.

Section 6 of the Statutory Instrument “Hours of Work and rest” reads as follows:

a) maximum hours of work which shall not exceed

i) 14 hours in any 24-hour period and,

ii) 72 hours in any 7- day period

b) minimum hours of rest shall not be less than,

i) 10 hours in any 24-hour period and,

ii) 77 hours in any 7-day period

(2) 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.

From the information taken from the log book, the Complainant has rarely, if at all, received his rest break entitlements.

Section 27 of the Organisation of Working Time Act, 1997 reads as follows:

27(1) In this section “relevant provision” means –

(a) Any of the following sections, namely section 6 (2), sections 11 to 23, or section 26,

(b) The provision referred to in section 6 (1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) Paragraph 9 of the Fifth Schedule.

(2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravened a relevant provision in relation to the employee and, if the employee or such trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person, who by virtue of the change, becomes entitled to such ownership.

Under the Organisation of Working Time Act, 1997 I declare this complaint well found and now order the Respondent to pay to the Complainant compensation of €5,000.

CA-00017188-005 – Complaint under the Organisation of Working Time Act, 1997 – Breaks.

Included in response to complaint CA – 00017188 – 004.

CA – 00017188 – 006 - Complaint under the Organisation of Working Time Act, 1997 – Weekly Rest Periods.

Section (1) (a) (ii) ofS.I.No. 709/2003 – European Communities (Workers on Board Sea-Going Vessels) (Organisation of Working Time) Regulations 2003 quite clearly states minimum hours of rest shall not be less than 77 hours in any seven-day period.

From the log book provided by the Respondent it is clear that hours of rest are well below 77 hours in any seven-day period.

I find this complaint well found and now order the Respondent to pay to the Complainant compensation of €10,000.

CA – 00017188 – 007 – Duplication of complaint -002 – withdrawn.

CA – 00017188 – 008 – Complaint under the Organisation of Working Time Act, 1997 – working more than 48 hours per week.

Section 6 (1) of S.I.No. 709/2003 – European Communities (Workers on Board Sea-Going Vessels) (Organisation of Working Time) Regulations 2003 looks at “Hours of work and rest”. This S.I clearly states that hours of work shall not exceed 72 hours in any seven-day period.

In this instant case this rule is being broken on a consistent basis. I find this complaint to be well found and order the Respondent to pay to the Complainant compensation of €10,000.

CA – 00017188 – 009 – Duplication of Complaint -003 – withdrawn.

CA – 00017188 – 010 – Complaint under section 6 of Payment of Wages Act, 1991.

Re – The Contract of Employment - Clause 5 deals with wages and expressly states:

The following is taken from the submission of the Complainant:

“The employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay.

The employee will be paid weekly in arrears into the employee’s bank account.

The employer is not entitled to deduct from the employee’s wages any sum for the cost of travelling to commence employment and/or repatriation and/or the cost of training.

The employee may request, at no cost, a written statement of their average hourly rate of pay for any pay reference period in the previous 12 months.

The employee shall receive a statement of wages and deduction from wages in accordance with the Payment of Wages Act 1991”.

and

It is quite clear that it is an express term of the Claimant’s contract that he is to be paid for every hour he worked for the employer. It is also clear that in weeks where the boat may be inactive and he is not physically working that he was to be paid a rate not less than a 39-hour week at theminimum wage rate. Therefore, it is indisputable that it is a term of the Claimant’s contract of employment that if he works more than 39 hours in a week he is to be paid more than a 39-hour week i.e. he is to be paid for every single hour he carries out work. It is the Claimant’s position (which is dealt with in more detail before that he was not paid for all of the hours he worked).

The Claimant often worked approximately 20-hour days. A copy of a one-page document prepared by the Claimant from memory setting out hours he worked each day was presented.

As previously stated it is difficult to accurately assess the actual hours worked by the Complainant during the period in question. From his own recollection the Complainant worked 3,924 hours between the dates of 4th March 2017 and 30th September 2017. From the log books provided by the Respondent I have calculated that the Complainant spent 1,836 hours on fishing activity. The other non-fishing duties during this period have to be added

Section 25 of the Organisation of Working Time Act, 1997 legislates on the keeping of working time records and states:

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may be regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3) where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The records presented by the Respondent were not as prescribed by legislation, were incomplete, were, as described by the Complainant, inaccurate and to absolutely blunt, added no value whatsoever.

As stated in legislation the onus of proving compliance lies with the Respondent. This burden of proof has not been discharged by the Respondent and I am therefore going to accept the calculation completed by the Complainant.

During the months of January and February 2017 the Complainant had a contractual right to be paid. He was paid for two weeks during this period.

I order the Respondent to pay the Complainant the sum of €11,542.82 plus €2,164.50 for the months of January and February 2017.

In summary:

CA -00017188 – 002 – Award of €483.41 – pay for outstanding annual leave.

CA – 00017188- 003 – Award of €575.64 – pay for Public Holidays.

CA – 00017188 – 004 / 005 (combined) – Award of €5,000 – compensation for breach of daily rest and breaks.

CA – 00017188 – 006 – Award of €10,000 – compensation for breach of weekly rest periods.

CA – 00017188 – 008 – Award of €10,000 – compensation for working excessive hours.

CA – 00017188 – 010 – Award of €13,707.32 – underpayment of wages.

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.

Decision is outlined above.

Summary:

CA -00017188 – 002 – Award of €483.41 – pay for outstanding annual leave.

CA – 00017188- 003 – Award of €575.64 – pay for Public Holidays.

CA – 00017188 – 004 / 005 (combined) – Award of €5,000 – compensation for breach of daily rest and breaks.

CA – 00017188 – 006 – Award of €10,000 – compensation for breach of weekly rest periods.

CA – 00017188 – 008 – Award of €10,000 – compensation for working excessive hours.

CA – 00017188 – 010 – Award of €13,707.32 – underpayment of wages.

The awards of pay and compensation should be made to the Complainant within 42 days from the date of this Decision.

Dated: 3rd January 2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Organisation of Working Time Act, 1997. Payment of Wages Act, 1991.