Complainant

Respondent

Anonymised Parties

A Deck Hand

A Fishing Company

Representatives

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

Conway Solicitors – Not in attendance at hearing.

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-00012368-001

07/07/2017

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

CA-00012368-002

07/07/2017

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

CA-00012368-003

07/07/2017

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

CA-00012368-004

07/07/2017

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

CA-00012368-005

07/07/2017

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

CA-00012368-006

07/07/2017

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

CA-00012368-007

07/07/2017

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

CA-00012368-008

07/07/2017

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

CA-00012368-009

07/07/2017

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

CA-00012368-010

07/07/2017

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

CA-00012368-011

07/07/2017

The complainant was employed by the respondent as a share fisherman in 2015. On 26th August 2016, the complainant received an “Atypical Working Scheme Letter of Approval” in line with the provisions of the Non- EEA Crewmen and the Atypical Worker Permission Scheme. The Scheme was entered into by State parties concerning the terms and conditions of employment of non-EEA persons employed in the sea fishing sector. The complainant remained in the employment of the respondent from 26th August 2016 until he received a text message terminating his employment on or about the 11th May 2017.

The complaint was submitted to the WRC on 7th July 2017. The cognisable period of the complaint is therefore from 8th January 2017 to 7th July 2017.

Employing Entity

The complaint relates to a Limited Company and to a named individual. The complainant’s representative stated that the named individual is named as the employer in the Work Permit/Letter of Approval and the Contract of Employment. The Limited Company is listed as the employer on the complainant’s P45, Working Time Records and Payslips.

Extension of Time Request

The complainant’s representative sought an extension of time in relation to the complaint on the basis that the complainant was potentially a trafficked individual with poor command of the English language and had limited ability to protect his rights and entitlements.

Substantive complaints

The complaint relates to the non-payment of the National Minimum Wage to the complainant, underpayment of wages in contravention of the Payment of Wages Act, 1991 and several breaches of the Organisation of Working Time Act, 1997 in respect of Annual Leave and Public Holiday entitlements, Daily and Weekly Rest Breaks, Breaks, Weekly working hours and Notice entitlements in relation to the termination of the complainant’s employment.

The complainant stated in evidence that he was a share fisherman prior to August 2016 and after he became an employee of the respondent his payments decreased dramatically. The complainant stated that while on fishing trips his duties included carrying out repairs, watching time (On Lookout) throwing out nets, preparing boxes and checking the freezers etc. The complainant stated that when the nets were returned to the boat after the fish were caught, he would empty the nets and re-cast the nets again. He stated that he would then sort the fish, begin cleaning and sizing the prawns, then place the catch in the small freezer and subsequently transfer the catch to the big freezer. The complainant stated that this process was repeated for approximately 16 -20 hours per day and that when the boat was on the return trip to the harbour he would clean the boat and prepare for unloading the catch.

The complainant stated that fishing trips were between 20 and 30 days and there was approximately 6 days of rest between each trip. With regards to the working time records, the complainant stated in evidence that he was instructed to sign the records by the boat skipper and that if he did not do as instructed, he would be dismissed. The complainant stated that sometimes the records he had to sign were blank and on other occasions the information on the forms was unclear and/or incomplete.

The complainant stated that throughout his employment he worked 16 -20 hours per day, did not receive breaks in line with the provisions of the legislation and did not receive payments that corresponded with the payslips he received in respect of Annual Leave and Public Holiday entitlements.

A representative of the respondent attended on the 16th October 2018 and 4th December 2018 to confirm that the respondent would not be partaking in the process due to the allegations of human trafficking that were being investigated in relation to the circumstances surrounding the complainant’s employment. The representative confirmed that the respondent’s Solicitor had submitted submissions to the WRC in relation to the substantive complaints but was under instruction not to attend the adjudication hearing. The respondent representative then left the adjudication hearing.

Written submissions

Although the respondent did not partake in the adjudication hearing, its written submissions objected to an extension of time on the basis that a WRC Inspection had previously found that the respondent was compliant, and that the complainant had been interviewed as part of that process and had confirmed that all was in order. The respondent also stated that it had kept records and had provided them to the complainant. The respondent stated that it had, at all times, complied with the legislation in relation to the complainant’s employment.

In relation to the within complaints I find as follows:

Employing Entity

While the named individual is named as the employer on the Work Permit/Letter of Approval and has signed the contract of employment on behalf of the employer, I find it more likely that the Limited Company is the complainant’s employer on the basis of the details included on the Payslips, Working Time Records and the complainant’s P45.

Extension of Time

I accept the application to extend time on the basis that the complainant was working in a somewhat precarious position as a potentially trafficked individual with little knowledge of the English language and a lack of awareness of his employment rights. The complainant’s direct evidence was that if he did not do as instructed, he would lose his job. I find that the circumstances surrounding the complainant’s employment would have made it very difficult to raise any issues with the respondent for fear of being dismissed.

The cognisable period of the complaint is therefore from 8th July 2016 to 7th July 2017. The within complaints cover the entire period of the complainant’s employment from 26th August 2016 to 19th May 2017.

Record Keeping

Section 25 of the Organisation of Working Time Act, 1997 requires that an employer must retain records in relation to its employee. In the instant case, the working time records provided by both parties begin on 24th October 2016 and end on 24th April 2017. The records relating to rest are incomprehensible and are unsigned either by the complainant or the respondent and could pertain to anybody.

The records submitted by the respondent in relation to pay for 2016 and 2017 are unclear and as the respondent did not attend the adjudication hearing, I was unable to clarify the position on the calculations submitted. The complainant provided bank statements and gave evidence that he did not receive the amounts reflected on his payslips.

Having regard to the totality of the information, I find that the records submitted are incomplete and inadequate and with no involvement from the respondent at the adjudication hearing, I make the following decisions based on the submissions and direct evidence of the complainant.

CA-00012368-001 – National Minimum Wage Act, 2000

This complaint was not pursued at the adjudication hearing. The substantive issue will be addressed under Complaint Application CA-00012368-002 below.

CA-00012368-002 - Payment of Wages Act, 1991

The terms of the complainant’s employment provide that he be paid for every hour he worked per week and that he would be paid for a minimum of 39 hours per week at a rate of pay not less than the National Minimum Wage applicable at the relevant time.

The complainant outlined in evidence the hours he worked each day and the length of each fishing trip. The complainant’s evidence relating to the records provided and the circumstances surrounding his completion of those records have cast doubt in relation to the authenticity of the records that were made available at the adjudication hearing.

In all of the circumstances of the complainant’s employment and based on the lack of records available and on the evidence adduced from the complainant at the adjudication hearing, I am satisfied that the respondent breached Section 5 of the Payment of Wages Act, 1991 in respect of the complainant’s employment.

ANNUAL LEAVE/PUBLIC HOLIDAYS

CA-00012368-003 – S 19. Organisation of Working Time Act, 1997 (Annual Leave entitlements)

The complainant was on annual leave in his home country for the months of October, November and December 2016. The Bank Statements submitted in support of the complaint are not numbered or dated and do not show that they are in sequence. There are no payslips submitted for that period or any corresponding bank statements relating to EFT payments made to the complainant during the period in question. However, based on the evidence of the complainant and the lack of adequate records or clarification from the respondent on the issue, I conclude on the balance of probabilities that the complainant did not receive his paid annual leave entitlements for the duration of his employment.

CA-00012368-004 - Organisation of Working Time Act, 1997 (Public Holiday Entitlements)

There were 7 Public Holidays during the period of 26th August 2016 to 19th May 2017. The lack of adequate records or any participation or clarification from the respondent in the process has made it particularly difficult to carry out a thorough investigation of this complaint. However, based on the direct evidence of the complainant, I conclude on the balance of probabilities that the complainant did not receive the appropriate public holiday entitlement for the duration of his employment.

DAILY REST BREAKS/BREAKS /WEEKLY REST BREAKS/WEEKLY WORKING HOURS

The Applicable Law

Part II of the Organisation of Working Time Act 1997 deals with minimum rests periods. Section 3(2) of the 1997 Act states:

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.

S.I. 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 seven-day period

or

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

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

(ii) 77 hours in any seven-day period

(2) Hours of rest may be divided into no more than two periods, one of 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 hours of rest are disturbed by call-outs to work

CA-00012368-005 – S 11 Organisation of Working Time Act, 1997 (Daily Rest Breaks),

The complainant gave evidence that he worked between 16 and 20 hours per day while on fishing trips that often lasted between 20 and 30 days. The complainant also described the number of tasks that he carried out each day. Given the complainant’s evidence on this issue, I accept that the complainant did not receive the prescribed rest periods and that respondent breached he legislation and Regulation 6(1)(a)(i) of S.I. No 709/2003.

CA-00012368-006 - S12 Organisation of Working Time Act, 1997 (Breaks),

The complainant stated that he received only 30 minutes of a break throughout his working day which he claims was between 16 and 20 hours per day. The legislation requires that a break of 30 minutes must be provided after an employee has worked for six hours. Based on the evidence of the complainant, I find that, notwithstanding the length of the complainant’s working day, he was provided with the breaks as specified in the legislation.

CA-00012368-007 – S 13 Organisation of Working Time Act, 1997 (Weekly Rest Breaks),

The records submitted by both parties, although incomplete, show that the complainant worked 27 days in succession from 13th January 2017 to 8th February 2017. Based on the complainant’s evidence of the hours he worked and based on the records submitted, I find that the complainant did not receive the prescribed weekly rest during that time. There are also other periods for which there are no records to assist in confirming the regularity or otherwise of the breaches.

CA-00012368-008 – S 15 Organisation of Working Time Act, 1997 (Weekly Working Hours)

The complainant gave evidence that he worked between 16 and 20 hours per day while on fishing trips that often lasted between 20 and 30 days. While the records submitted do not indicate that a breach of the regulations has occurred in relation to weekly working hours, the complainant’s evidence was that he often signed blank records/forms and was threatened that he would be dismissed if he did not do as he was told. Having accepted the complainant’s evidence in relation to his daily working hours, I conclude that the complainant worked in excess of the maximum weekly hours permissible under the legislation and regulations.

CA-00012368-009 - Organisation of Working Time Act, 1997 (Annual Leave)

This matter has been decided by reference to Complaint Application CA-00012368-003 above.

CA-00012368-010 - Organisation of Working Time Act, 1997 (Public Holidays)

This matter has been decided by reference to Complaint Application CA-00012368-004 above.

CA-00012368-011 – Payment of Wages Act, 1991 (Notice entitlements)

Although this complaint was submitted under the Payment of Wages Act, 1991, the complainant, by virtue of Section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973 was entitled to one weeks’ notice of the termination of his employment.

CA-00012368-001 – National Minimum Wage Act, 2000

This complaint was not pursued at the adjudication hearing. Accordingly, I declare that the complaint is not well founded

CA-00012368-002 - Payment of Wages Act, 1991

I declare that the complaint is well founded. The respondent is directed to pay the complainant €13,500 in respect of unpaid wages for the duration of his employment

CA-00012368-003 – S 19 Organisation of Working Time Act, 1997 (Annual Leave entitlements)

I declare that the complaint is well founded. In accordance with Section 19(1)(b) of the Organisation of Working Time Act, 1997, the complainant is entitled to one-third of a working week per calendar month where he worked 117 hours. The complainant worked for the respondent for 9 months and is therefore entitled to three weeks holiday pay. The respondent is directed to pay the complainant three weeks gross pay in respect of annual leave entitlements plus an additional €1,000 in compensation for the infringement of the complainant’s employment rights.

CA-00012368-004 – S 21 Organisation of Working Time Act, 1997 (Public Holiday Entitlements)

Based on the evidence before me, I declare that the complaint is well founded. The respondent is directed to pay the complainant 7 days’ pay in respect of public holiday entitlements plus an additional €750 in compensation for the infringement of the complainant’s employment rights.

CA-00012368-005 – S 11 Organisation of Working Time Act, 1997 (Daily Rest Breaks)

I declare that the complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation for the infringement of his employment rights.

CA-00012368-006 - S 12 Organisation of Working Time Act, 1997 (Breaks)

I declare that this complaint is not well founded as the complainant confirmed that he received a 30-minute break each day.

CA-00012368-007 – S 13 Organisation of Working Time Act, 1997 (Weekly Rest Breaks)

I declare that the complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation for the infringement of his employment rights.

CA-00012368-008 – S 15 Organisation of Working Time Act, 1997 (Weekly Working Hours)

I declare that the complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation for the infringement of his employment rights.

CA-00012368-009 - S 19 Organisation of Working Time Act, 1997 (Annual Leave)

This complaint is not well founded as it was dealt with in Complaint Application CA-00012368-003 above.

CA-00012368-010 – S 21 Organisation of Working Time Act, 1997 (Public Holidays)

This complaint is not well founded as it was dealt with in Complaint Application CA-00012368-004 above.

CA-00012368-011 – Payment of Wages Act, 1991 (Notice entitlements)

This complaint is well founded. The respondent is directed to pay the complainant one weeks’ gross pay in respect of his notice entitlements under the legislation.

Underpayment of Wages, Weekly working hours, Daily working hours, Rest breaks, Annual Leave, Public Holidays, Notice entitlements.