ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026812
Parties:
| Complainant | Respondent |
Anonymised Parties | Fisherman | Fishing Trawler Owner |
28th September 2020
Representatives | Colin Smith BL, Wendy Lyon Solicitor of Abbey Law | Ruari O’Cathán Sol Conways Solicitors |
Interpreter: Mohammad
27th September 2021
Representatives | Colin Smith BL, Wendy Lyon of Abbey Law | DID NOT ATTEND |
Interpreter: Doaa Nabhan
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034088-001 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034088-002 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034088-003 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034088-004 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034088-005 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00034088-006 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034088-007 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034088-008 | 30/01/2020 |
Date of Adjudication Hearing: 27/09/2021
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a fisherman from 22nd December 2016 to 15th August 2019. He has claimed that he was not paid in accordance with the National Minimum Wage Act, he was not paid for hours that he worked, he was not compensated for the Public Holidays and he did not receive the correct holidays. The Respondent rejected this claim. The Respondent did not attend the second hearing scheduled for 27th September 2021. When contacted by the Workplace Relations Commission (WRC) he stated that he was awaiting a link for the hearing as he believed that it was to be conducted remotely. It was pointed out that he had received written confirmation that the hearing was to be face top face. He apologised for his non-attendance. He advised that he was due in Court in Wexford at 10.30am and when queried how he intended to deal with this case remotely within one hour he stated that he didn’t think that it would take much longer. He confirmed that his witness M would not be giving evidence, despite the fact that the Respondent had sought an adjournment of the first hearing so that he could give evidence. He advised that he didn’t believe it necessary to have this hearing rescheduled. He stated that the Respondent has sought that the WRC Labour Inspector would give evidence, but it was pointed out by the WRC that they were two distinct bodies and it is not normal practice for evidence to be given by an Inspector. He advised that no report was received from the Inspector and so no adverse findings were identified. He stated that he was satisfied that the Adjudicator could now move to issuing a decision. He offered to speak to the Barrister representing the Complainant, but the legal representative for the Complainant declined to speak to him. The legal representative for the Complainant stated that he was disappointed that the Respondent did not attend as he wished to cross examine the owner and the office person regarding records and payslips. The legal representative for the Complainant also confirmed that it was his position that the Adjudicator could move to a decision. A brief review of the cases took place. The legal representative for the Complainant confirmed that there was no request made in writing for a statement on the hourly rate of pay as is required by the National Minimum Wage Act. He also confirmed that Payment of Wages Act CA 34088-007 was withdrawn, that under the Organisation of Working Time Act CA 34088-004 was a duplicate of -003 and CA 34088-005 was duplicate of 002. |
1)Request to extend the time limit
Complainant’s Position
The representative stated that the Complainant is a foreign national, he has a limited knowledge of the English language. He was unaware of his employment rights. He had previously worked as an undocumented migrant fisherman and he viewed this employment as very precarious. He was wholly dependent on this employer for all aspects of his life. It was not until he was represented by the Migrant Rights and ITF in December 2019 that he referred this case to the WRC. These are cogent reasons as to why the extension should be granted. There are two Adjudication Officer decisions similar to this case where extensions to the time limits were granted.
Respondent’s Position
The Complainant has a very good knowledge of English. His contracts of employment were given to him in English. There were four employees on the boat. He never raised any issues with communication. He didn’t contact the Fisherman’s Association. He waited for five months before submitting a claim to the WRC. The two Adjudication cases referred to were appealed to the Labour Court.
Decision on the request to extend the time limit.
The Workplace Relations Act provides for an extension to the time limit provided that reasonable cause has been established, “adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
Sec 41(8) of the WR Act states, “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.
The Labour Court in the Cementation Skanska V Carroll DWT0342 stated, in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.
I note that the Complainant is a foreign national.
I note that he was in a precarious position with this type of employment.
I note that he was not aware of his employment rights and while ignorance of the law is not usually a defence in this case his ignorance of the law is understandable.
I note that it was not until he received assistance from the Migrant Rights organisation that he proceeded to submit a claim to the WRC.
I have decided that the reasons provided by the Complainant both explains the delay and provides an excuse for the delay.
I have decided to grant the extension to the time limit.
The complaint was presented to the Commission on 30th January 2020 so the period that may be investigated is 31st January 2019 to 15th August 2019, the date of termination of employment.
1) National Minimum Wage Act 2000 CA 34088-006
Findings and Conclusions:
I find that the Complainant, when asked by the Adjudicator confirmed that they did not request a statement in writing from the Respondent of his hourly rate of pay. I note that Sec 24 (2) of this Act states, “a dispute cannot be referred to or dealt with by a rights commissioner (a) unless the employee (i) has obtained under Sec 23a statement of his or her average hourly rate of pay in respect of the relevant pay reference period or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow)has not elapsed since that statement was obtained or time lapsed, as the case maybe.” I note that Sec 23 (2) of this Act states, “a request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates” I find that the Complainant did not request that written statement. Consequently, I find that this dispute may not be referred to the WRC or heard by the Adjudication Officer. I find that this claim is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons, I have decided that this claim is not well founded and so it fails.
2) The Payment of Wages Act 1991 CA 34088 – 001/ 007
Summary of Complainant’s Case:
The Complainant confirmed that CA 34088 - 007 was withdrawn. CA 34088-001 The period that may be investigated is 31st January 2019 to 15th August 2019. Summary of Complainant’s Case: The Representative stated that there are no records for the relevant period. There is an obligation on the Respondent Employer to maintain records, if they don’t then the Adjudication Officer must accept the evidence of the Complainant Employee. The WRC Inspector could not check the records as they did not exist. The WRC could not find any breaches, because there were no records available. The Respondent failed to keep records, they failed to get the Complainant to sign them, in such an absence the Complainant has had to rely upon his memory of the hours worked. The Respondent relied upon fishing logs. It is not possible to decipher how much work was done as there was no record of the number of people on the boat. It was not possible to determine how much work was done. The Respondent paid the Complainant 8 hours per day irrespective whether he was on the boat or on shore. Other employees were paid by SHARE, in this case the Complainant was paid 8 hours per day worked. The fishing records only show the fishing hours. When the Complainant was on land there were no records either of how many hours he worked and where he worked. There is no correlation between the fishing records and the pay slips provided. Claim The Complainant has claimed that he worked 17 hours per day while at sea. Date At sea Hours On call Hours February 2019 134 42 March 2019 292 84 April 2019 148 28 May 2019 369 119 June 2019 292 84 July 2019 354 126 August 2019 168 56 They acknowledge that the S.I.709/2003 provides for 14 hours per day and maximum 72 per week. However, the Complainant has claimed that he worked 17 hours per day and was paid for 8 hours. |
Summary of Respondent’s Case:
The Respondent stated that the boat did not operate to full throttle. The hours were based on work and call outs. The fish catch was very limited, so the hours worked were much less than the hours that are claimed. Boredom was factor on this boat due to the small amount of work. On call is the nature of this business, when at sea you fish. Regulations were introduced to deal with the peculiarities of fishing. The Regulations excluded 5 different definitions of working time. When on-call, you can’t be elsewhere, its not like a Doctor on call. This was a reasonably small boat, rest is rest and there was plenty of rest available. The Skipper of the boat rejects the estimations of the hours allegedly worked by the Complainant. He was facilitated with his religious practices and food. He stopped working for prayers. He was a sports fan and he was given time to watch the football matches. This was not a profitable business, it “washed its face”. This was a wind down vessel getting old, it was a prawn boat. While he was on shore they couldn’t put him in the shop because of his poor English. There was no work required on the boat, except twice a month the nets would be checked and mended, it was a morning’s work. He was given work in the factory working about 3 to 6 hours per day and paid for 8 hours. He was always welcomed in the restaurant and provided with non-beer batter products. He was never called out for frivolous reasons. He was not charged for food, except cigarettes and lotto. They have never had labour issues. They had up to 10 trawlers. |
He was not forced to leave, he didn’t renew his passport and so he couldn’t get work. They stated that no records were kept for this boat. He was paid the same each week because it was an averaging week. Some weeks he worked more than 39 hours some weeks less. The claim is rejected.
Findings and Conclusions:
I note the conflict of evidence in this case. I find that the Respondent did not maintain records of hours of work. I find that Sec 25 of the Organisation of Working Time Act requires that the Employer maintains records of hours worked. The S.I. 709/2003 Regulation 9 also requires the Respondent to maintain records of hours worked. I find that in the absence of such records I am obliged to accept the evidence of the Complainant. Based on the claim as presented by the Complainant I find, on the balance of probabilities that the Complainant worked in the relevant period 77 days at 17 hours per day totalling 1,309 hours and that he was paid 8 hours per day for those days totalling 616 hours leaving 693 hours unpaid. Sec 6(2) of this Act states, “the commissioner shall order the employer to pay to the employee compensation of such an amount … not exceeding (a) the net amount of wages” I find that the Complainant is due 693 X €9.80 = €6,791.40 gross, €5,364.79 net based on payslips supplied. I find that the Respondent has made an illegal deduction from the Complainant’s wages. I find that the Respondent has breached Sec 5 of this Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons, I have decided that this claim is well founded.
I have decided that the Respondent has breached Sec 5 of this Act by making illegal deductions from his wages.
I have decided that the Respondent shall pay the Complainant €5,364.79 within six weeks of the date below.
3) Organisation of Working Time Act 1997 CA 34088-002/003/004/005/008
Summary of Complainant’s Case:
The Complainant confirmed that CA 34088-004 was a duplicate of 003 and so it is withdrawn. CA 34088-003 was withdrawn. They also confirmed that CA 34088-005 is a duplicate of 002 and so it is withdrawn. CA 34088-002 Public Holidays They stated that there were 5 Public Holidays in the relevant period, St Patrick’s Day, Easter Monday, May, June and August. The Complainant was paid €156.80 in respect of two Public Holidays May and June. Based on the maximum 72 hours per week under S.I. 709/2003 his average daily pay should have been 10.3 (based on 7 days) X €9.80. He should have received 503.99 but received 156.80. So, he is owed €347.19 in respect of public holiday. CA 34088-008 Working 48 Hours + per week The Representative stated that there are no records for the relevant period. There is an obligation on the Respondent to maintain records, if they don’t then the Adjudication Officer must accept the evidence of the Complainant Employee. The Respondent failed to keep records, they failed to get the Complainant to sign them, in such an absence the Complainant has had to rely upon his memory of the hours worked. He has claimed that he worked 17 hours per day while at sea and was on call for the remainder. The S.I.709/2003 provides for a maximum of 72 hours per week. The Complainant was required to work in excess of the maximum hours permitted. The Respondent has breached these Regulations and compensation is sought. The Representative stated that the Workplace Relations Act 2015 does not confer on the Workplace Relations Commission with jurisdiction over breaches of the rules on maximum working hours, minimum resting hours, and maintenance of records in the European Communities (Workers on Board Sea Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI 709 of 2003) and in particular, Regulations 5,6 and 9 thereof. However given that these rules attempt (albeit imperfectly) to transpose those in Article 21 of the Working Time Directive (2003/88/EC) having regard to the principle of effectiveness which is a general principle of Union law, the rights conferred on workers by Article 231 can be effective: By analogy with the remedy available to overworked workers under the Organisation of Working Time Act 1997 and the Workplace Relations Act 2015 the Complainant claims 104 weeks remuneration in compensation for his employers for flagrant breaches of SI 709 of 2003 and Article 21 of Directive 2003/88/EC. |
Summary of Respondent’s Case:
CA 34088-002 Public Holidays The Respondent stated that he was paid 8 hours amounting to €78.40 in respect of 29th March 17th May, 14th June and 16th August, pay slips provided. So, he is owed for Easter Monday. CA 34088-008 - Working 48 Hours + per week The Respondent stated that S.I. 709/2003 provides for a maximum of 72 hours in a week and the reference period is 12 months. They stated that some weeks he exceeded 39 hours per week and some days particularly when on shore he worked less than 39 hours, unusually working 3 to 6 hours a day. He was paid 8 hours a day irrespective of whether he worked the 8 hours or not. Mostly he did not exceed the 8 hours a day which was an averaging figure. This claim is rejected. |
Findings and Conclusions:
CA 34088-002 Public Holidays
I refer to the Payment of Wages Act decision above where I have found that the Complainant worked 17 hours per day while at sea. Under the S.I. 709/2003 the maximum weekly hours are 72.
I find based on 72 hours per week that it equates to 10.3 hours a day X €9.80 = €100.94.
I find that he was paid €78.40 in respect of 4 Public Holidays as per the Respondent’s records supplied, which left a shortfall of €22.54 for these 4 Public holidays, which amounts to €90.16 and €100.94 for the Easter Monday.
I find that a total of €191.10 is owing.
CA 34088-008 Working 48 Hours + per week
I note the conflict of evidence in this case.
I find that S.I. No. 709/2003 – European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 states:
“(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 completed 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 with 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.”
I find that Section 25 of the Organisation of Working Time Act 1997 also deals with 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 three years from the date of their making.
(4) Without prejudice to subsection (3), where and 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”
The Complainant’s Representative stated that no such documentation was formally prepared and recorded.
I find that the Respondent’s Representative stated that they did not maintain records of hours of work.
I find that in the absence of such records I am obliged to accept the evidence of the Complainant.
Based on the claim as presented by the Complainant I find, on the balance of probabilities, that the Complainant worked an average of 17 hours a day while at sea and 8 hours day while on shore. I find that he exceeded 72 hours per week as is provided by SI 709/2003.
I note that this claim is taken under the Organisation of Working Time Act 1997, not SI 709/2003.
I find that SI 709/2003 informs us of the maximum hours permitted in this employment.
I find that this is an industry that is subject to some very challenging weather conditions and the safety of fishermen is of paramount importance.
I find that it is essential that fishermen are protected against working excessive hours which may cause them to make errors in their work which could negatively impact on their safety and that of their colleagues.
I find, on the balance of probabilities, that the Complainant worked 17 hours a day while at sea and was on call for the remainder.
I find that the Complainant is entitled to compensation for breaches of his rights under this Act.
I note that under the principles laid down by the ECJ in the case of “Van Colson Kamann v Land Nordrhein-Westfalen” [1984] ECR1891, where an individual right is infringed, the judicial redress provided should not only compensate for the claimant’s economic loss but must provide a real deterrent against future infractions”.
I find that it is important to note that apart from awarding back pay as far as 12 months maximum before the date the complaint is referred to the Workplace Relations Commission, certain statutes under Schedule 5, Workplace Relations Act 2015 allow compensation to be awarded on top of the pure backpay element. So, under the Organisation of Working Time Act, in addition to directing the Respondent to pay back the monies unpaid, the Respondent can also be ordered to pay compensation in addition, up to 2 years’ salary. This is to provide an effective remedy pursuant to EU law, compensation should be pitched at a level which amounts to an effective, dissuasive and proportionate deterrent.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA 34088-002 - Public Holidays
For the above stated reasons, I have decided that the Complainant is owed a total of €191.10 for the economic loss of the Public Holidays.
I require the Respondent to pay the Complainant €191.10 within six weeks of the date below.
CA 34088-008 - Working 48 Hours + per week
For the above stated reasons, I have decided that the Complainant is entitled to compensation for breaches of his rights and that this compensation should be in line with the Van Colson judgement which must provide a real deterrent against future infractions.
Against this background, I have decided that the Respondent should pay the Complainant compensation of €15,000 (fifteen thousand), which is to serve as an effective, dissuasive and proportionate deterrent.
This is to be paid within six weeks of the date below.
Dated: 05-11-21
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Fisherman: working excessive hours, unpaid wages and Public Holidays |