ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Fisherman | A Fisheries Business |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00023761-001 | ||
CA-00023761-002 | ||
CA-00023761-003 | ||
CA-00023761-004 | ||
CA-00023761-005 | ||
CA-00023761-006 | ||
CA-00023761-007 | ||
CA-00023761-008 | ||
CA-00023761-009 | ||
CA-00023761-010 |
Date of Adjudication Hearing: 15 March, 14 May, and 1 July 2019
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
CA -00023761-001 submitted under Section 24 of the National Minimum Wage Act, 2000 was withdrawn at hearing.
The Complainant was represented by Ms Rosemary Mallon BL instructed by Mason Hayes and Curran and the Respondent was represented by Brian Leahy, BL (day 2 and 3) instructed by Conway Solicitors. Both parties made extensive written and oral submissions. The case was enabled by Arabic Interpreters.
Background:
This case surrounds a 5-month period of employment between the complainant, an Egyptian Deckhand/Fisherman and the respondent, a Fisheries Business. It is important to explain that the complainant was employed under a National Scheme for the employment of Non-EEA crew in parts of Irish Commercial Sea Fishing Fleet. He also worked as a Share fisherman. This scheme arose from a Memo of Understanding for the monitoring and Enforcement of the terms of employment of Non-EEA crew men pursuant to the establishment of the A typical Worker Permission scheme (2016). The scheme was to minimise “the potential for the abuse of migrant workers” and to provide a mechanism to assist those currently in Ireland in “difficult situations” to enter a new employment relationship. The Scheme agreed between 11 parties was to standardise terms of conditions of employment in a reportedly unstable setting. It was to be marked by the following:
The Memo of Understanding (MOU) outlined that Authorised Officers of Minister for Transport Tourism and Sport held enforcement roles under the EC Regulations of 2003 (SI 709/2003). The MOU was due to be reviewed after 12 months. Of background relevance to the case is the current national objective that EU Directive 2017/159, Working in Fishing Convention will be transposed into Irish law by the 15th of November,2019 regulating maximum hours of work, minimum hours of rest, and manning requirements aboard commercial fishing vessels. Member States shall determine what penalties are applicable when national provisions enacted pursuant to this Directive are infringed or not met. In the present case, the complainant’s role incorporated the following job profile in his contract of employment. He worked on a “Floating Factory “ 1. Assisting in preparation of the vessel before going to sea 2. Assisting with fishing Operations, putting out nets, bringing in nets 3. Processing and Freezing of Fish 4. General Maintenance and Running of fishing operations 5. Assisting at landing and berthing. Storing the Fish in Cartons. The Respondent is a Fishing Business and the Owner served frequently as a Master on the ship. |
CA -00023761-001 on National Minimum Wage Act 2000 was withdrawn on the first day of hearing. |
Summary of Complainant’s Case:
The Complainant did not have proficiency in English Language and relied totally on Arabic Interpreters to assist him in participation at hearing. He experienced some difficulty in day 2 of hearing in that regard and the hearing was adjourned to permit a new appointment of Interpretation to accurately reflect his delivery. Counsel for the complainant gave an outline of the background to the status of non-EEA crewmen and the atypical worker permission scheme. The Memorandum of Understanding entered into by various state parties in early 2016 required that employers as licensed vessel owners were responsible for ensuring that a valid contract of employment drafted in accordance with National and Eu employment legislation was in place for all workers. This was to replace the previous system of “share of the catch payments “. There were 171 permits issued during the lifetime of the scheme. The current 10 claims came before the WRC on 4 December 2018. The claims were reduced to 9 on the first day of hearing. There were three duplications. Counsel for the complainant submitted that the complainant may be required to seek an extension of time in relation to certain parts of his claims on reasonable cause, given his lack of English, his status as a foreign national unaware of his employment law rights. The Complainant commenced work for the Respondent on 8 April 2018. He did not receive an atypical letter of approval until 28 May 2018. During this period, he was paid share payments. His employment ended on September 11, 2018. The Complainant was not given a signed contract of employment which stood in contrast to the Respondent signed version. Counsel drew the attention of the hearing to the following express terms for the purposes of the instant claims. 1. The employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. 2. Weekly pay in arrears. 3. Minimum annual Wage of €19 ,367.40, less board and lodging, if relevant 4. No provision for deduction in wages in relation to cost of travel to work or repatriation. 5. The hours of work and minimum hours of rest will be in accordance with the EC (Workers on Board Sea Going Fishing Vessels) Organisation of Working Time) Regulations 2003 (S.I No 709/2003). Records of which are to be maintained. 6 The Employer was permitted to make provision for more favourable terms if the floor terms were upheld. Counsel expanded on the provisions and application of Statutory Instrument 709/2003 (EC Regulations, 2003), where the Master of the Ship is obliged to maintain records of work and rest on the ship, monthly in arrears. These records are to be retained for at least a year from compilation. Once the Complainant achieved the A typical worker letter dated 28 May 2018, he was paid for a 39-hour week at €9.55 per hour. This was a wholly inaccurate reflection of his actual working week. Prior to this, he had received a share payment. Counsel submitted that it was noteworthy that in or around late July 2018 the Complainant was provided with a document titled “Calculation of Bonus “. He received a mere two bonuses of the seven cited. This document also suggested that his wages were reduced to pay for legal fees and his Visa. He also received a payment in August / September 2018 which may have been meant for earlier in the employment relationship. Counsel raised an early issue on the way the complainant’s employment was managed vis a vis the provisions of both the Organisation of Working Time Act and the EC Regulations, 2003) SI 709/2003. The Complainant disputed the records maintained by the Respondent in his case. He was never provided with a copy of same. He signed what he was told to sign and was not proficient in English. Drawing on the detail contained in the Respondent Fishing Log Books, Counsel disputed the records maintained by the ship owner. For example. 8 April -14 April 2018 84 Fishing Hours Trip 18011 28 April to 2 May 72 Fishing Hours average 18 hr days. The Complainant worked more than 72 hours in 7-day periods. His own records supported this. On October 8, 2018 the complainant received an email from the Respondent which indicated that a payment of €2, 543 was paid into his bank account as a “balancing figure to take account of tax liabilities “This was not understood by the complainant and had only come about after he raised pay with his then former employer. Counsel sought significant compensation for the serious breaches of the working time legislation. Complainant Evidence: The complainant gave his evidence with the assistance of an Arabic interpreter. He had worked in Ireland previously during 2007-2011. He returned to Ireland in 2015 and recommenced fishing. He worked briefly for Mr A in January 2018. He got in contact with the respondent through a friend and joined the crew on one day notice. He commenced work on April 8, 2018. The Respondent informed him that he would apply for a work permit for him. He undertook two fishing trips before it arrived, where he was paid as a share fisherman. Once the permit arrived, his pay was €351.14. He received a tax rebate after 6 months but did not understand the weekly pay system. He was deducted €742 for legal and visa expenses without his permission. The Complainant submitted that he signed blank time sheets when asked by the respondent. He worked with 3 or 4 others on 1 boat only. He did not get copies of signed time sheets. The Complainant outlined his work which consisted of travelling in and out, fishing, freezing fish, boxing fish and watch. When nets were out, he described a continuous work pattern where “he worked all the time “Sleep consisted of 3-5 hours. He submitted that he worked a 15 to 23-hour day. He also worked in the harbour offloading catch on return and fixing nets. Having taken advice, he produced a guesstimate of hours worked. He did not receive pay for bank holidays of holidays. He understood that he had signed three documents which the other crew were not asked to sign, the last of which was on June 2 when the Respondent came to his accommodation. During cross examination, the complainant confirmed that he had fished between 2007 and 2012 in Ireland. His pay varied but for 15 -20 days it ranged between €1,500-€2,000 as a share fisherman. He did not have permission to work in the state. On his return in 2015, he resumed work as a share fisherman. He was aware that most people were working without permission and he was keen to join the A typical scheme. He referenced a letter from a Solicitor dated 2016 in support of this. His application had surpassed the closing date. He understood that the Owner would try and put things right for him. He obtained his first work permit in 2018. He understood that he would have to return to his home country to apply for work as an external candidate. He submitted that he had worked as a share fisherman for Mr A. He submitted that he fished during both day and night and reaffirmed the distances to the fishing grounds where the shortest journey was 5-6 hours and the longest 15 hrs. He said that there was no difference in the work he did from April onwards. He confirmed that he received 15 minute breaks sometimes in the intervals between putting nets out. He might sleep following the first net. As soon as fish was in, the nets were relaunched. He confirmed that he compiled his “guesstimate document in October 2018 “ The Complainant confirmed that he worked every day at 15-23 hours. He disputed that he was lying as everyone knew the circumstances of life on a fishing vessel. He confirmed that the Respondent contacted him in June 2018 to make an appointment at immigration. He attended the appointment and was informed that he would have to leave to go home. He was not able to do this as he understood it would perilous for him to admit that he had been in the country without permission. He understood most of his friends were obtaining visa. He denied knowing that his accessing the A Typical scheme would be impossible as his friends had obtained visas while they were in the country. He had a friend who had left to go home and could not return. He tried to sort out his residency difficulty but was unsuccessful. He accepted that payment for first two trips was fair. He was uncertain about fishing on June 14 which was EID in the Muslim calendar. He had not worked for any other employer during the time spent with the respondent. He was uncertain if he had taken a week off in June. In answer to Counsels probe on his reportage of his working time, he denied that he was “a hospital case “following the work. He had not had the benefit of a translated contract. Counsel for the complainant submitted that the complainant had lost out on the earlier amnesty surrounding a typical scheme as his application was late but qualified that he was given by an undertaking by a Solicitor to raise his case further. All of this was confusing for the complainant. The Respondent contended that the complainant’s contract was null and void for want of approval to work in the country. The Complainant submitted that after he left to go to Dublin to address his legal status, the Respondent called him to come back to work for him but then stated that he did not need him. CA-00023761-002 Holiday pay The Complainant submitted that he did not receive paid annual leave from his employer. This constituted a breach of Section 19/20 of the Act. There was no mention of paid annual leave on the pay slips CA-00023761-003 Public Holidays The Complainant submitted that he had not received public holiday entitlements. CA-00023761-004 Daily Rest Periods The Complainant contended that he was requiring to work up to 22 hours per day, 7 days a week. Statutory Instrument 709/2013 covers rest periods on a Fishing Vessel. Maximum hours of work are stated as 14 hours in any 24-hour period and 72 hours in any seven-day period or minimum rest shall not be less than 10 hours in any 24-hour period and 77 hours in any seven-day period. He gave evidence of his hours of work and rest. CA -00023761-005 Rest breaks The Complainant submitted that he was not provide with rest breaks and ate during his working hours. CA -00023761-006 Duplicate of CA -00023761-004 CA -00023761-007 Duplicate of CA -00023761-002 CA -00023761-008 Maximum Hours The Complainant submitted that he was typically required to work more than 140 and 150 hours per week CA -00023761-009 duplicate of CA-00023761-003 CA -00023761-010 Payment of Wages Act complaint The Complainant submitted that he was owed €10,359.00 in respect of unpaid wages. He did not give permission for deductions for legal and visa fees and he was not provided with pay in lieu of notice. Counsel summarised that there were two aspects to the claims, a shortfall in Payment of Wages and a lack of acceptance of the level of hours worked. Records were highly relevant. Of the 4 sheets signed by the Respondent, April was unsigned, and the complainant signed blank sheets which rendered the documentation relied on by the respondent as questionable. The records were basic and did not incorporate watch time, ancillary ship activities or steaming time. The Respondent had disregarded the Regulations detailed in SI 709/2003 regarding the Organisation of Working Time Act, 1997. The complainant was entitled to succeed in the face of such implausibility from the respondent’s records. The remedies should have a deterrent effect. In addressing a conclusion to the claim submitted under payment of wages, Counsel for the complainant submitted that the Respondent viewed the bonus payment as a top up to wages. The Complainant was not informed of deductions made in relation to visa and legal expenses. There was no mention of holiday, or public holiday on the wage slip. He was not paid a payment in lieu of notice. The complainant had not received any explanation on his pay. He was not paid the contractual term which covered every hour worked which stood in direct conflict to the stated intention of the Memo of Understanding on the A typical scheme. In addressing the Respondent contention of illegality of contract, Counsel submitted that this case could not fail for illegality. He had taken up employment as a self-employed share fisherman prior to the issuing of his approval under the A typical scheme yet the work done was identical throughout his tenure. In relying on Hogan J relevant comments in Hussein v The Labour Court and Another [2012] IEHC 364 in Judicial Review, Counsel submitted that the instant case concerned employment and it was not a question of “wrongness following proceeds of crime “The Complainant had been granted both of his letters of approval from a Government Dept. In quoting from Judge Hogan’s comments on the provisions on the Employment Permits Act, 2003, where he expressed reservations and concern on the vulnerability of the complainant, Mr Younis “ ….. It would scarcely be a sensible construction of the Act of 2003 if it is admitted that such a contract is expressly prohibited by statute and yet the courts permitted administrative bodies such as the Labour Court to give appropriate remedies to the parties as if the contracts were perfectly lawful…….” In turning to the subsequent Supreme Court judgement in Hussein V the Labour Court [2015] IESC 58 and subsequent amendments of the Employment Permits legislation in 2014, Counsel argued that time had moved on and this interlude had favoured the complainant and the case should be judged on its own merits. While Hussein was not concerned with any issue of illegality regarding the employment relationship in terms of the judicial review, the Supreme Court went on to comment at paragraph 53: I would, however, add, even though it is entirely hypothetical, that if the subject matter of the liability to be enforced involved something which was inherently immoral or inherently against the public interests, such as an agreement to rob or distribute the proceeds of a robbery, then the issue of illegality a public policy would arise from a different perspective. Obviously, that Is not the case and unlikely to be the kind of thing that would be attributed to a Rights Commissioner by statute to decide. In this case, one is dealing with an inherently lawful subject matter, namely the relationship between employer and employee, a relationship which the Rights Commissioner, in his determination found to exist and give rise to a liability of the applicant. again, there was no appeal or judicial review of that decision. Counsel submitted that the Employment Permits (Amendment) Act 2014 provides that Section 2(b) provides that where a foreign national can satisfy a Court that they took reasonable steps to comply with the requirement to have an employment permit, that foreign national (or the Minister on his behalf) may take a civil action for compensation against the employer for work done. Counsel contended that this amendment covered the circumstances attributed to the complainant in this case. The Complainant is a foreign national whose English was poor. He was frightened but he was fully focussed in securing a work permit. He did not attempt to hoodwink anyone as he had attempted to worked legally and had done all in his power to obtain a work permit. Counsel submitted that the complainant had paid legal fees and solicitors had been involved in his hiring. It was not his fault that his letter of approval c/o Respondent Solicitors had erroneously gone to his earlier employer. The Complainant had paid tax and prsi. He had seen others in similar circumstances being granted work visas. He had hoped for the same for himself. He no longer worked in the fishing industry.
|
Summary of Respondent’s Case:
The Respondent runs a small fishing business and has disputed all claims. The Respondent disputed that the complainant could be termed an “employee” prior to the date of contract and letter of authorisation of May 28, 2018. He was instead a share Fisherman, albeit illegal. He had worked for another Fishing Business prior to his commencement with the Respondent. On the first day of hearing, the Respondent sought an opportunity to make a supplementary submission on the complainant’s time as a “share fisherman” as a self-employed person. This was permitted. The Boat was registered in Ireland. The Respondent submitted that the complainant had not satisfied several pre-conditions for the A typical scheme for Non-EEA Crew Members. He had been unable to obtain a Stamp 1 for his passport which would have amounted to a valid entry permit. He was unable to obtain a specific immigration card. 1 All crew from non-EEA countries must be employed by a sea fishing boat licence holder under a written contract of employment for a duration of 12 months. The Respondent contended that the Adjudicator had no jurisdiction to hear the claim. Counsel for the Respondent argued that Hussein V Labour Court [2012] IEHC 364 applied “Neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract which is substantively illegal in this fashion “ In relying on several share fisherman cases presented before the courts, Francis Griffin and William Deasy and The Minister for Social community and Family Affairs and Mc Loughlin The respondent argued that the complainant was indeed a share fisherman before he was granted an Atypical; contract in May 2018. This placed him outside the jurisdiction of the WRC. The Respondent also opposed the complainant’s submission seeking an extension of time limits. It was the Respondent case that when the complainant approached the Respondent for work, it transpired that his permission had been revoked by his previous employer, Mr A. As a result, a new application had to be made to get permission to work for him. This was not known by the Respondent immediately and he was set up on pay roll. As soon as it became clear that he was not registered under the scheme, the respondent realised that he could only work as a share fisherman. He experienced a delay in securing a PPS number due to new rules surrounding registration. An issue arose for the complainant at the end of July 2018, where his Immigration card (GNIB) card was due for renewal. This is a residence permit. He was denied the renewal as there was no entry visa in his Passport. The Complainant sought time off to travel and instruct an Immigration Solicitor in Dublin and ceased work on the vessel on 26 July. The Respondent continued to pay him until the start of September 2018. The Respondent accepted that the Organisation of Working Time Act and SI 709/2003 (workers on Board Sea Going Fishing Vessels) were applicable under the contract of employment. The Respondent had not breached the contract of employment. Organisation of Working Time Act/SI 709/2003: The Respondent did not accept that the complainant worked 22-hour days. The Complainants hours of work and rest were recorded contemporaneously by the Master and signed by the complainant. This was the basis by which the hours worked were calculated in the wage analysis pro offered by the respondent. The Respondent submitted that the vessel ceased work when dark and the complainant’s contentions were not only physically impossible but had not occurred. The Respondent introduced the log sheet which recorded fishing activity every day. These are submitted to a Protection Authority at 24:00hrs each day the vessel is at sea. They are subject to regular inspection by two external bodies. These records determine the time spent on each activity and demonstrate that the vessel does not work through the night. The respondent submitted that share fisherman receives payments far greater than the payments made by contract to the Atypical workers. Mindful of the disparity between the two groups on board the same ship and to reduce resentment, the A typical workers were to receive a weekly payment in arrears of 39 hours at the national minimum wage rate. Accordingly, the respondent stated that it was set up that overtime etc would be calculated at a remove on a time table which was in tune with payments made to share fishermen, made three monthlies. In the instant case the share for the period €12,172.00. The reconciliation gave credit for holiday pay, premium pay. The Respondent submitted that Holiday pay was then deducted from the amount of the share of what he would have received had he remained a share fisherman. Balance rested at €2, 543.06. The Respondent sought an order dismissing the entire claims. Evidence of the Respondent The Respondent understood that the complainant was to be a transfer from Mr A’s employment. He submitted that he was happy to take him on board and apply for his visa, which was “easy to do “. He recalled setting sail with the complainant on 8 April 5-6 pm and the journey time lasting 12-15 hours to get there. He took the watch until dawn and prawn fishing commenced. The Complainant could go to bunk. After 6 hours the process was explained of grading fish in boxes for market. It had been a poor spring and prawn catch was poor. Crew were not there for longer than 2 hours. If the boat was solely on fishing ground, they worked through the night. The Respondent contended that he complainant had “fetched his figures out of the sky ““they were an impossibility “A 14-hour day was regarded as a “heavy fishing day “ The Respondent became aware that the complainant was having problems on his return from the Station. He knew that the complainant was required to return home to apply for an entry visa. he told him that the contract could not continue. He assisted him in every way he could. He understood that Mr A had also cancelled the contract. The Respondent confirmed that he had applied for the Atypical contract in May. He had not been asked for his input by the authorities and the experience had been a steep learning curve. His boat had been inspected by WRC but not during the complainant’s tenure. The Complainant informed the respondent that he would go to Dublin to address his situation. there were 4 weeks left in the 90 days mentioned in a typical scheme. Time ran out and he was instructed that the complainant was an illegal immigrant. He had hoped he would return as he had been a hard worker due to his specific Delta and all fish experience. The Respondent had significant down time on the boat. There was Wi Fi and a tv in the galley. He was permitted to sleep when not working. He explained that there was no machine available to record rest time, instead he submitted that “we don’t work 6-8-hour shifts, we work to catch “He confirmed that the time sheets were compiled weekly. The Complainant had not raised any dissatisfaction during his employment. The times varied from a 6-hour day to a 14-hour day, where the head of ship works a 10 -12-hour day. During cross examination, The Respondent confirmed that he acted as a Skipper and was joined by another locum skipper in June 2018. He detailed the team work process and confirmed that the Diary did not confirm the exact time of activities. The Log Book recorded” net out” times and amount of catch. He disputed any breach of annual leave, public holiday or Sunday pay. He explained that he relied on his book keeper to manage the wage slips. He confirmed that the direct employment commenced once the contract commenced on the arrival of the letter of approval. He disputed that the figures on “calculation of bonus did not make sense “He confirmed that the complainant was paid for hours worked. He agreed that it looked “odd “that €1,000 was deducted for legal fees. The respondent submitted that the bonus payments covered any additional time worked. He denied that the pay slips were inconsistent with the actual hours worked. Sunday hours of 108 in total were paid in September at 25 cents extra. This was informed by the accountant. He was paid €9514.16 for tax purposes. The Respondent disputed the breadth of the working day relied on by the complainant and both parties focussed on week of 30 May to 6 June. the Respondent confirmed that the complainant worked 19-26 April. The Respondent rebutted the complainants accounts of hours worked and contended that his recollection was realistic. He confirmed that compensatory rest periods were not provided. Counsel for the complainant doubted the respondent version of records. The guesstimates were equally disputed by the respondent who stood over his completed statutory time/rest sheets recorded one month in arrears and kept in the Wheel house where the complainant could have seen them. Counsel for the Respondent reaffirmed that the complainant did not have the legal status to prosecute his claim. The 2014 amendment to the Employment Permits Act 2014 did not envisage a WRC Adjudication as a correct forum for relief if monies were due. A claim for payment of wages stood on a separate and distinct footing to those under organisation of working time act for the purposes of the 2014 amendment post Hussein. The amendment envisages a Civil Court setting and there is no case law available in relation to this. He summarised that the party’s evidence in common centred on them meeting in early April and commencing a share fisherman arrangement before the A typical scheme came into being in May. A significant divergence followed in both party’s recollection of the working day. The issues in the case had not come to the attention of the parent group for the A typical scheme. The Respondent detailed that time worked had been adequately recorded and paid correctly. The Complainant was aware since March 2018 that he was illegal and remained in the jurisdiction. The Respondent has acted responsibly and has issued a contract of indefinite duration to a fellow country man of the complainants. Counsel sought a determination that the contract was void due to illegality.
CA-00023761-002 Annual Leave The Respondent disputed the claim and directed attention to the reconciliation records of the complainant employment where annual leave was delineated at 687 hours and detailed as minus €524.87 during the reconciliation exercise. The Respondent denied owing the complainant payment for annual leave. CA-00023761-003 Public Holiday The Respondent disputed the claim and submitted that public holidays had been reconciled during the final reconciliation process as paid at €171.90. CA-00023761-004 Rest Periods The Respondent disputed that the Complainant was not provided with a daily rest period and relied on the jointly signed Contemporaneous log sheets which depicted rest periods in accordance with SI 709/2013 CA -00023761-005 Breaks The Respondent completely rebutted that the complainant was not provided with rest breaks. He submitted extensive evidence of facilities for recreation on the ship and the overestimated working time which the complainant relied on. CA -00023761-006 Duplicated with CA -00023761-004 CA -00023761-007 Duplicated with CA -00023761-002 CA -00023761-008 Maximum Hours The Respondent disputed that the complainant worked a 140 to 150-hour week and relied on the records maintained and submitted under SI 709/2013 which were co-signed by the complainant. CA -00023761-009 Duplicated with CA -00023761-009 CA -00023761-010 Payment of Wages Act complaint The Respondent disputed the claim and relied on an October 4 email where €2,543 was made to the complainants account. He stated that: “As we paid you before the contract was fully operational, due to your tax status, this is a balancing figure to take account all your tax liabilities. We will forward you your P45 when we receive it.” The Complainant was paid €372.45 gross per week under the Atypical scheme. The Respondent noted that the complainant was losing out on unclaimed tax allowances prior to June 1 and he received a refund of tax in week 33. A reconciliation exercise took place where holidays, bank holidays and excess hours worked were off set against the €12,172 reference to share fisherman status. Allowing for a deduction of legal and visa fees, pay roll costs and employers prsi a final payment was made at €4,655.74 gross in early October 2018, which concluded the employment relationship. The Complainant was over paid. The Respondent agreed to furnish a clarification of payments made. The Respondent contended that in a move towards equity in balancing two types of fisherman, Share Fisherman and A Typical worker, and to reduce resentment that a reconciliation exercise would be applied consistent with the payments made to share fishermen. This incorporated holiday pay, premium pay and was deducted from the projected share relevant to a share payment. The P45 was received post hearing and detailed a gross payment of €9870.04 over a 14-week employment record (June 1 -Sept 7) PRSI detail €1,245. The Respondent exhibited a Calculation of Bonus Payment sheet at hearing which was given to the complainant at the end of June 2018. This was contrasted with the contracted pay and pointed to a net payment due of €1,100.52. The Respondent had not made any illegal deductions. |
Findings and Conclusions:
I have given this case some thought. I have read the extensive submissions of the parties and I have reflected on the evidence adduced. I have carefully considered the following documents. The Report of the Government Task Force on Non-EEA Workers in the Irish fishing Fleet, December 2015, ESRI Research Paper No 64, July 2017 Illegal employment of non-EU Nationals in Ireland, Arnold, Whelan and Quinn, Provisions of the Atypical Scheme and contract of employment. There was a disparity in documents submitted by the parties. The Respondent exhibited a co-signed copy dated May 12, 2018 whereas the complainant version, secured through a data access request lacked these signatures. Provisions of SI 709/2013, Subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limit on hours of work and rest in respect of a worker on board a sea going vessel shall be either a. Maximum hours of work which shall not exceed 1. 14 hours in any 24-hr period and (2) 72 hours in any seven-day period b. Minimum hours of rest which shall not be less than 1. 10 hours in any 24-hour period 2. 77 Hours in any 7-day period Hours of rest may be divided into no more than two periods, one of which shall be 6 hours in length and the interval between consecutive such periods shall not exceed 14 hours. A worker who is on call shall have an adequate compensatory rest period if his hours are disturbed by call outs to work. An exception exists for emergencies, where adequate rest in the wake of such an emergency is to be provided as soon as practicable. Regulation 9 obligates the Master to maintain a “record of the daily hours of work or rest for each worker in compliance with paragraph 2, completed monthly in arrears endorsed by the master and by the worker on board. A copy to be then provided no later than 7 days after the last day of the calendar month to which the record relates. An authorised Officer on finding a “failure to comply with Regulation 5 or 9” shall take measures to ensure compliance and may detain a sea going vessel In any proceedings for an offence under these regulations, it is a defence for the defendant to show that he or she had taken “all reasonable steps” to ensure compliance with these Regulations. I have also considered both letters of approval granted under the Atypical scheme dated January 29, 2018 and May 28, 2018. Both letters were issued to the Complainant c/o Solicitors Offices. Preliminary Issues : There are several Preliminary Issues to be addressed in the first instance. On the first day of hearing, The Respondent sought to make an additional submission on the status of share fishermen vis a vis direct employment. Both parties accepted that there were two periods of employment to be considered in the case. The Respondent divided the employment into 8 April 2018 to 27 May 2018 as a Share fisherman and 28 May 2018 to 7 September 2018 as a direct employee, albeit illegally on both counts. The Complainant rested his case on a continuous employment as a fisherman, albeit that he was not in receipt of a letter confirming the Atypical scheme commenced until around May 28, 2018. I invited extra written submissions on both the share fishermen, clarification of how payments were made, the claim of illegality and the complainants employment record in the state. These were provided by the parties and exchanged. I have summarised these responses in the main body of this report. Unfortunately, an issue arose on the second day of hearing where the translation of the complainant’s evidence proved contentious and Counsel for the complainant sought a new Interpreter. I acceded to this request as I could see that the complainant was not comfortable in his delivery. Thankfully, no such problems arose on the last day of hearing and I am grateful to the parties for their patience in that regard. Time Limits: The first issue for me to resolve is the correct cognisable period for the claims under both Organisation of Working Time Act and Payment of Wages. Section 41(6) requires that an Adjudication Officer shall not entertain a complaint referred under this Section after the expiration of a period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) permits an extension of time through an argument that submission of the complaint was delayed due to reasonable cause. The claims in this instance were lodged at WRC on 4 December 2018. Some three months post the conclusion of employment and refer to 8 April 2018 onwards which is outside the cognisable period permitted under Section 41(6). The Complainant sought an extension for reasonable cause and this was not supported by the Respondent. I have given the matter considerable thought. While the complainant was legally represented at hearing, I noted that he did not appear to have access to employment advice /representation until his employment ended. He was unhappy with payments received and sought to contest these. The Grievance and Disciplinary procedures were not made available to him and employment documentation was not translated. I am mindful that the complainant is a non-EEA worker, with little to no English and no clear knowledge of employment law, given his extended tenure as a Share Fisherman. I found that he was vulnerable on those grounds which prompted me to take time on this review. I have decided to extend the time limits in this case and apply an extension on reasonable grounds in accordance with Section 41(8). I found that the complainant was a vulnerable almost invisible worker from April 2018 and that his delay in submitting his claim rested solely on that status. He did not have any apparent knowledge of Irish employment law. I do not believe that the Respondent is compromised by my decision as the employment period was covered by legal advice and involvement from the very beginning and the Respondent had an extensive knowledge of both share payments and A typical payments which completely overtook the knowledge of the complainant. I will now look at this case from April 8-September 7, 2018 as the cognisable period. Concept of Employment I am guided by the terms of the contract of employment signed by the complainant and the respondent on 12 May 2018. At the beginning of the case, I was unsure as to why the complainant’s employment was so carefully linked to Solicitor involvement? The parties explained the parameters of the A typical scheme to me and opened relevant documents governing the scheme and I began to understand the context, background and intention of the scheme. It is of note that the A typical letter of approval is endorsed by a Government Minister in the following wording: “......has approved your application for permission to enter the state for the purposes of working as a crew member according to the conditions of the scheme and as summarised below. All parties are accountable for compliance with these conditions and failure to do so may result in this permission being withdrawn “ The Contract was to be of 12 months duration with a requirement to register with the national immigration bureau. The employment was visa required and incorporated permission to enter the state for more than 90 days. A registration fee was to follow. The letter was to remain valid for 90 days from the date of issue. The Respondent disputed that the complainant could avail of employment status until May 28, 2018 as he had agreed to be a share fisherman. The Respondent then cast the entire period of employment as illegal. There was no documentation available on the complainants accessing share fisherman status. The Complainant submitted that the complainant had undertaken identical work throughout his tenure from April 8 and the periods were not distinguishable from each other. I am not convinced that the complainant presented as a transfer under the Atypical scheme as there is no paper work consistent with this transfer request. The Complainant presented his letter of approval dated 29 January 2018 where he worked for 1 week. I could find no evidence of a provision for a transfer mechanism within the A typical scheme. I find that I must be guided by the co-signed contract of employment dated 12 May 2018 and have established that this confirmed the complainant as a direct employee in contractual terms. I appreciate that there was a two-week delay before the letter of approval issued as I understand it went to his earlier employer by mistake. I have identified that the complainant became a direct employee on 12 May 2018 as provide in the co-signed contract of employment. I will now move forward to consider the contention of illegality pro offered by the Respondent. Concept of Illegality attributed to the complainant’s contract of employment It is common case that the Complainant was not in possession of an employment permit during the time spent working on the Respondent Boat. While he tried to secure this permission, he was unsuccessful. The Respondent has argued that this renders any contract void on grounds of illegality and relied on Hogan J in Hussein in the High Court Judicial review. The Respondent argued strongly that the complainant lacked the jurisdiction to progress his case. The Complainant approached this topic differently and relied on Section 4 of the Employment Permits Amendment Act , 2014 which amended section 2 of the Employment Permits Act, 2003 .It was submitted that the amendment post Hussein in the Supreme Court allows a foreign national who in contravention of the 2003 Act had entered employment without an employment permit to take ( or the Minister to take on their behalf) a civil case for an amount of money to recompense hm for such work done or services rendered , if they have taken all steps as were reasonably open to them to comply with the Act. The A typical scheme is laid out as a streamlined mechanism to deal with a typical and short-term work or work not covered by other rules. It is of note that The EU Directive on Employer sanctions 2009/52/EC, introduced to detect and sanction employers who engage in illegal employment does not have the recorded participation of Ireland, UK or Denmark. I am mindful of the actions of Hogan J when he transmitted a copy of his decision in Hussein to Ceann Comhairle Cathaoirleach of the Seanad Minister for Jobs Enterprise and Innovation So that the Oireachtas could give consideration to the policy implications for immigration and employment law in Ireland. The Gap between Immigration and Employment Law in Ireland: Irregular Immigrants fall through the cracks, Dr Elaine Dewhurst IELJ 2013 10(1) 11-16. Dewhurst concluded that “irregular immigrants remain effectively unprotected “In Ireland which sent two messages, first irregular immigrants have no rights and secondly unscrupulous employers have nothing to fear from their exploitation. She described a climate of uncertainty. I have considered Section 2 Employment Permits Act as amended. This provides that a non-national may not work in the state without an employment permit granted by the Minister. It creates a specific offence for both the employer and employee where employment is entered in the absence of a requisite permit. In Hounga V Allen [2014] IRLR 811 the UK Supreme Court held that a claimant claims for racial discrimination (not payment of wages or unfair dismissal) was not defeated by illegality as the issue of human trafficking was a matter of public policy. This decision incorporated a passage quoted from Saunders V Edwards [1987] 1 WLR 1116 “Where issues of illegality are raised, the courts have to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss ........ Where the plaintiff’s actions in truth arises directly ex turpi causa, he is likely to fail .... where the complainant has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed ......” The decision in Hounga also referred to the “Palermo Protocol “ratified by Ireland in 2010 in terms of Human Trafficking. Neither party in the instant case alleged that the complainant had been trafficked. In the Supreme Court unanimous decision on Hussein, the Court directed that “traditional judicial dicta “as to the enforceability of a contract giving rise to illegality, might have to be reviewed or nuanced in light of the modern regulatory environment “and applied proportionately. This seems to be reflective of Hounga. I am also mindful of that the Act places an onus on employers to carry out reasonably thorough checks to ensure that a permit has been obtained. I took also some time to consider High Court decision in Nazir V Anwar [2018] ELR 346 an appeal of EAT decision in a payment of wages and terms of employment claim where the High Court, in commenting on the EAT decision stated Moreover, the EAT did not make any finding of fact to the effect that the respondent did not have a work permit and was working illegally in the state. In the instant case, the question of contended illegality was not a Primary argument in the case.It is also of note that it was not a hallmark of the early Hussein case at the Rights Commissioner hearing, where Mr Younis was unrepresented . the concept of illegality emerged on day 2 and 3 of the hearing. I have considered this fact very carefully. The A Typical scheme arose from circumstances where a Government Task Force found that issues had arisen among the terms of non-EEA workers on Irish Fishing Vessels following an expose on a UK Paper. Immediate action was taken to minimise the potential for exploitation of such workers engaged under a contract of employment by a Vessel licence holder. Workers were to have a right to a minimum regular wage and statutory conditions of employment. There were a lot of people involved in the employment relationship at the centre of this case. It is true that the complainant missed out on the “general amnesty “granted to irregular immigrants up to July 2016. His then Employers Solicitor explained this to him but qualified it by saying that she wasn’t giving up and she would continue to raise the issue. I note that this was the same solicitor who received carriage of the 2018 Atypical letter dated 29 January 2018. The Complainants legal status vis a vis his immigration status was certainly known by many at this juncture. It was not a secret and he was not alone. Both the Respondent and his Legal Advisors were party to securing the 28 May A-typical letter which carried a Ministerial endorsement. I noted that this letter did not provide temporal limits by which a Stamp 1 was to be placed in the Passport. The Complainant had a bone fide contract of employment. I could not find evidence of pre-employment checks which incorporated immigration status. I could not establish the measures taken by the respondent to assist the complainant outside a direction to attend Immigration services . I must decide on the concept of illegality or otherwise in relation to the contract of employment entered without an Employment permit as required under Section 8 of the Employment Permits legislation. I am satisfied that the complainant had entered the services of an employer of the state as set out in Section 2(1) (a) and 2(2) of the Employment Permits Act, 2003, as amended. He alleges that he is owed an amount of money in respect of work done but had not secured an employment permit. I am satisfied that the complainant took all steps as were reasonably open to him to comply with obtaining a Permit in accordance with the atypical scheme. Others proximate to the employment relationship did not exhibit reciprocal efforts. It cannot be overlooked that the Complainant is an irregular immigrant who showed repeated interest in regularisation of his position. Neither can it be overlooked that the Respondent had a defined and immediate need for his acknowledged skills in fishing. I have found that the complainant is entitled to bring his proceedings before me as an adjudicator at a Court of first instance in employment legation. To disallow this would in my opinion be wholly unjust set against the backdrop of Public policy and everything the A typical scheme was designed to do to do. It is also highly relevant in the face of the imminence of the transposition of EU Directive 2017/159 Working in Fishing Convention by November of this year. I will now proceed to the substantive case. The Substantive Case: CA-00023761-002 Annual Leave The Complaint submitted that he had not received annual leave. Section 19 of the Act covers annual leave entitlements. The contract of employment outlines an entitlement to 20 days per year. I have found that the complainant was directly employed from May 12 to September 7, a period of some 3 months. The Respondent calculated that annual leave amounted to 524.87 euro and entered this into the reconciliation exercise at the end of employment. The complainant left to go to Dublin at the end of July and was paid for a further 5 weeks. This was approved leave. I appreciate that the annual leave was not delineated on the pay slip, where it should have been. I find that the complainant was granted annual leave. The claim is not well founded.CA-00023761-003 Public Holidays There is a disparity in both contracts presented at hearing. The Respondent presented a document signed by the complainant and the complainant presented an unsigned version received from the respondent. I was struck by an additional page present in the complainant version which referred to” public holiday pay as being in lieu of time off during the year when the fisherman has trips off. There is time during the year given for public holidays spent working” The Respondent contract is silent on public holiday provision outside a reference to the application of the Organisation Time Act 1997 to the contract. I explored the respondent contention that public holidays were taken account of during the reconciliation of the share payment. The share payment calculation is not a term of the complainant’s contract of employment. Based on the evidence adduced, I could not decipher that the respondent has complied with Section 21of the Act. The claim is well founded. CA-00023761-004 Rest Periods The Complainant gave evidence that his working time extended up to 22 hours per day often over 7 days a week. The Respondent disputed this and devoted a considerable period to explaining the nuances of working life on board a sea vessel. I was struck by the intensity of the work, which is weather dependent and sometimes necessitating long arduous journeys in pursuit of “catch “There is a clear dispute on the nature of work done. SI 709/2003, EC (Workers on Board Sea Going Vessels) Organisation of Time Regulations 2003 defines “hours of rest “as time outside hours of work and does not include short breaks. “hours of work “mean any time during which a worker on board a sea going fishing vessel is required to do work on the business of, or in connection with the vessel “ Section 5(1) outlines the General duties of sea going fishing vessel owners/masters. Section 6 outlines the limits on hours of work and rest. Hours of rest may be divided into no more than two periods, one of which shall be at least 6 hours in length the interval between consecutive periods shall not exceed 14 hours. Section 7 outlines exemptions in certain conditions and Section 8 covers emergency exceptions. Section 9 obligates a master to maintain a record of daily hours of rest and work for each worker who is then to be given a copy of the time sheets. I have looked carefully at the records created under Section 9 of the regulations. Counsel for the complainant disputed their accuracy and repeatedly pointe to administrative lags therein and the fishing logs maintained for an alternative purpose of scrutiny. Counsel for the Respondent contended that these were contemporaneous records and must not be overshadowed by retrospective guesstimates submit by the complainant many months post conclusion of employment. For my part, I considered the template for recording working /rest time on page 9 of the SI. I noted that April 2018 was not signed by the complainant. May recorded a 26-day presence at work inclusive of watch periods and some night work. June showed a 19-day work record inclusive of night work and watch keeping. July a 17-day work record, nightwork and watch work. I compared these to the fishing logs and found multiple inconsistencies regarding working time. Surrounding times of transit, operation, watch and work at port post trip completion. I have also considered the complainants log which exhibited a very worrying working pattern if even a fraction of it is validated. It certainly does not reflect a 39-hr week. Neither party could agree just what constituted working time. The Respondent contended that once the tasks were completed work was done and rest time took over. The Complainant contended that time without end on a sea going vessel augmented by watch times could not be reconciled as rest time. For my part, I was struck by the location of the workplace, many miles from land where no one could leave to pursue their own interests. It seemed to me an eternal workplace as reflected in Jaeger .C-151/02. I could not establish a mechanism to allow me to be satisfied that the respondent has satisfied the minimum hours of rest rule of 10 hrs in any 24-hour period. I found that so many inconsistencies between the log and the time sheet to cast doubt over the integrity of all the records submitted. The key columns on “hours of rest in any 24-hr period “and “hours of rest in any 7-day period” columns were all unpopulated on the time sheets. I was left to consider highly contested records. I have considered the May 2019 judgement of the Grand Chamber of the Court of Justice of Federation de Services de Comisiones Obreras (CCOO) v Deutsche Bank SAE C-55/18 concerning a lack of a system for recording the time worked each day by the workers . This is of particular merit in this case as the central employment is that of a direct employment rather than the self-employed share fisherman. In agreeing with the Advocate General, the Court had reflected that neither party had “identified clearly or specifically the practical obstacles that might prevent employers from setting up, at a reasonable cost, a system enabling the time worked each day by each worker to be measured “This was viewed as necessary to ensure the effectiveness of Directive 2003/88. In applying all the above to the facts of this case, I have not been able, on the evidence adduced to establish that the Complainant was provided with Rest periods as set out in Section 6(1) of the Regulations. I find that the claim is well founded. CA -00023761-005 Rest breaks Section 12 of the Organisation of Working Time Act sets out the mechanism for short breaks. I was unable to establish records where the complainant was granted these breaks. A direct question to the respondent confirmed that no compensatory rest breaks were provided, yet reference was made in the reconciliation balance sheet of excess hours work. I find the claim to be well founded. CA -00023761-006 Duplicated at CA -00023761-004 CA -00023761-007 Duplicated at CA -00023761-002 CA -00023761-008 Maximum Hours of Work The Complainant submitted that he regularly worked more than 140 -150 hours per week. This was disputed by the Respondent and goes back again to the concept of what is working time which remains unsettled in this case .Section 6 (1) of the Regulations outlines that maximum hours of work shall not exceed 14 hours in any 24 hr period and 72 hours in any 7 day period , subject to the limit of an average of 48 hours over a reference period not greater than 12 months . The contract of employment was silent on overtime. Section 15(1) of the Act outlines maximum hours of work permitted. I have carefully considered the time sheets incorporating May 12 to July 25 as the time at the centre of the sea going voyages. The question of maximum hours was raised in this context rather than during work at port. The contract states that all hours worked are to be paid. This places a special emphasis on identification of a cut-off point. I noted that work practices in that regard had not been recarved following the clear dichotomy in terms of conditions of workers post inauguration of the A typical scheme in 2016. It seemed to me that a reasonable man/woman on visiting this boat at sea would have difficulty differentiating between the share fisherman and the A typical worker and a “rose by any other name “comes to mind in my analysis of the facts. I am also mindful of the Respondents confirmation that fishing at night while on the fishing ground was not unusual . There is no job description available for a contracted fisherman as opposed to a share fisherman who operates in an entrepreneurial corner of the market, with different tax and prsi rules . I am also mindful that the complainant was not provided with the time sheets in a way the Regulations obligate. I have drawn an inference from this omission. I cannot establish compliance with either Section 6(1) of the Regulations or 15(1) of the Act and for that reason, I have found the claim to be well founded. CA -00023761-009 Duplicated in CA –00023761-003 CA -00023761-010 Payment of Wages Act complaint The Complainant has submitted retrospective times sheets where he details 1377 hours of work over May 12 -July 29. The Respondent covered most of this period by payment of €372 gross payment per week. The p45 reflects a gross payment of €9,514.16 inclusive of a reconciliation exercise from a share payment. The share payment is not an implied or express term of the contract. 1377 hrs x €9.55 = €13,150.35 (Complainant record) 17 weeks on Atypical scheme (39 hours) = €6,324 .00 = 663 hours (Respondent projected working time as 687 on reconciliation document) P45 Payment of €9,514.16 The Complainant contended that €1,000 euro had been deducted in legal /visa fees plus €340 for pay roll. Given the lack of an employment permit in this case, I wondered what this referred to.? I studied all time sheets and wages analysis submitted by the parties. I noted that initially the complainant recorded his hours of work as rest time, this was subsequently clarified at hearing. The Respondent sent out some very comprehensive bookkeeping, but many aspects remained unexplained. The Complainant has sought a payment of in excess of €10,000 basis. The Respondent has confused the issue with a post-employment reconciliation linked to a projected share payment not mentioned in the A typical contract. Section 5(1) of the Payment of Wages Act 1991 outlines that an employer shall not make a deduction from wages outside a contractual or statutory term or on consent. I note that the Respondent considers that an overpayment of salary has occurred. However, the question of working time and its mutually understood interpretation remains outstanding. I am satisfied from the complainant’s evidence, while hotly disputed by the respondent, that he worked well in excess of 39 hrs per week while on sea voyages for fishing purposes. He exhibited a weariness when asked to recall his experiences of work on board that stayed with me. It was clear that he took his duties seriously and wanted to do a good job. I also note that the circumstances of the termination of employment showed no regard for the contractual term on notice. As stated earlier, I find that I cannot rely 100% on any of the records advanced. I have relied on the contractual terms on notice and “paid for every hour worked” at an hourly rate of not less than the minimum wage. I find on that basis that the complainant was not paid for the total hours of work on board the sea fishing boat. I find the claim to be well founded. |
Decision:Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act, 1997 requires me to make a decision in the claims taken in accordance with that Act. CA-00023761-002 I have found this claim to be not well founded. CA-00023761-003 I have found validity in this complaint. It is well founded. CA-00023761-004 I have found validity in this complaint. It is well founded. CA -00023761-005 I have found validity in this complaint. It is well founded. CA -00023761-006 Duplicated at CA -00023761-004 CA -00023761-007 Duplicated at CA -00023761-002 CA -00023761-008 I have found validity in this complaint. It is well founded. CA -00023761-009 Duplicated at CA-00023761-003 I have given a lot of thought to formalising this decision. In the first instance, I would order the Respondent to comply with the exacting standards of Statutory Instrument, 709/2003 and the provisions of the Organisation of Working Time Act, 1997 from this day forward. It would of course be preferable if a mechanism to record working and rest time could be agreed also. I have considered the Labour Court Recommendation of the Labour Court in DWT 1914 Sandra Cooney’s Home Care Ltd and Deirdre Morgan, where the complainant in the case worked every day in the earlier part of last year January -July 2018. The Court reflected on C 484/04 Commission V United Kingdom [2006] IRLR 888, from the Court of Justice of the EU. Workers must actually benefit from the daily and weekly rest periods provided by article 3 and 5 of the Directive …….A member state which, in the national measures implementing the Directive , provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights , indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights , does not guarantee compliance with either the minimum requirements laid down by Art 3 and 5 or the essential objectives of the Directive ……. The EC Regulations 709/2003 gave effect to Council Directive 93/104/EC and 2000/34/EC. They are to be respectfully adhered to, notwithstanding the challenges of a mobile and weather dependent workplace. I would urge the parties to reflect on the purpose and importance of rest periods in the context of the overall health and safety of the crew of an isolated vessel. I have established that the complainant experienced sustained breaches of the terms of the Regulations and the Organisation of Working Time Act. I would like to highlight that I make an award of compensation of €5,000 to be paid to the complainant to serve as a proportionate and real deterrent “against future infractions “ CA -00023761-010 Payment of Wages Act complaint I have found the claim to be well founded. I find that compensation should be paid in respect of the contravention of Section 5 of the Act but not at the level submitted by the complainant. Taking account of the infringements on pay in lieu of notice, legal, visa and payroll deductions and insufficient pay for hours worked, I order the Respondent to pay to the complainant €2,500 as a just and equitable remedy. |
Dated: 5th September 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Share Fisherman, A Typical Worker Permission, Annual Leave, Public Holidays, Rest breaks in accordance with SI 709/2003. Payment of Wages Claim. |
|
|