FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GALOPIN TRAWLERS LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - MR AHMED ELGANAGY (REPRESENTED BY ROSEMARY MALLON BL, INSTRUCTED BY MASON HAYES & CURRAN) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00009467 CA-00012370-002. This matter came before the Court by way of appeal and cross-appeal from two decisions of an Adjudication Officer (ADJ-009467 and ADJ-0008053, both dated 4 September 2018) under the Organisation of Working Time Act 1997 (‘the 1997 Act’). Galopin Trawlers Limited (‘the Respondent’) appealed from the decisions in CA-0012370-002 and -003 by Notice of Appeal received on 11 October 2018. Mr Ahmed Elganagy appealed to the Court from the following individual decisions bearing reference ADJ-009467: CA-0012370-004/-005 & -006. His Notice of Appeal was received by the Court on 12 October 2018. Finally, the Complainant also appealed from the Adjudication Officer’s decision in ADJ-0008053/CA-0011036-002. The Court held a case management conference on 31 July 2020 and proceeded to hear the appeal in Dublin on the following dates: 10 June 2021, 14 September 2021 and 15 March 2022. The Factual Matrix The Complainant was engaged initially by the Respondent as a share fisherman and was remunerated, therefore, for his work during the relevant period by way of a per centage share of the catch from each fishing trip once the costs of the trip had been discharged by the skipper. The Complainant entered into a contract of service with the Respondent in September 2016. However, he did not commence employment pursuant to that contract until after his return from a period of convalescence in Egypt on 23 October 2016. The Complainant resigned his employment with the Respondent on 28 February 2017. It is common case that the Complainant’s employment from September 2016 to February 2017 was subject to the provisions of SI No 709 of 2003 (European Communities (Workers on Board Sea-Going Fishing Vessels)(Organisation of Working Time) Regulations 2003) which transposes into domestic law the provisions of Directive 2000/34/EC and was governed by a standard-form contract issued pursuant to the terms of the Scheme for Employment of Non-EEA Crew in Parts of the Irish Commercial Sea-Fishing Fleet. The Complaints As a much-contested preliminary issue as to jurisdiction fell to be determined by the Court at the outset of the hearing, it is necessary to set out in tabular form the nature of each of the individual grounds of appeal referred to the Court.
In the course of the hearing of the appeal, the Respondent withdrew its appeal of ADJ-009467/CA-0012370-002 in relation to the Complainant’s annual leave claim. First Preliminary Issue At first instance, the Adjudication Officer held that he was precluded from making a finding in relation to the following complaints: ADJ-009467/CA-0012370-004; -005 and -006; ADJ-0008053/CA-0011036-002. He explained his decision in this regard as follows: “Section 3(2)(a) of the Organisation of Working Time Act exempts a person engaging (sic) in sea fishing from Part II of the Act (Minimum Rest Periods and Other Matters Relating to Working Time), and where (sic) SI 709/2003 sets out how the entitlements under Part II should apply. Regulation 10 of SI 709/2003 requires the Minister for Communications, Marine and Natural Resources to appoint Authorised Officers for the purposes of the Regulations”. The Respondent submits that the Adjudication Officer was correct to decline jurisdiction in relation to the claims listed in the previous paragraph. In summary, the Respondent’s Representative, Mr Ryan, contends that sections 11 to 18A of the 1997 Act do not apply to those engaged in sea fishing by virtue of section 3 of the Act unless the Minister provides otherwise by regulation. Mr Ryan referred the Court to the provisions of SI No 709 of 2003 and SI No 672 of 2019, neither of which amends section 3 meaning, he submits, that the Court has no jurisdiction to determine the Complaints in relation to rest breaks, daily rest breaks, weekly rest breaks and maximum weekly working hours. Counsel for the Complainant, Ms Mallon BL, urged the Court to accept jurisdiction notwithstanding the absence of any provision for referral of complaints to the Workplace Relations Commission in either SI No 709 of 2003. In support of her submission in this regard, Counsel directed the Court to consider the decision of the High Court inMythen v The Employment Appeals Tribunal & Ors[1990] 1 IR 98 and the decision of the Court of Justice of the European Union inMinister for Justice and Equality, Commissioner of An Garda S?ochána v Workplace Relations CommissionCase 378/17. Mythencame before the High Court by way of an application for judicial review of a determination of the Employment Appeals Tribunal declining jurisdiction to consider the Applicant’s claim – advanced in the context of his complaint of unfair selection for redundancy under the Unfair Dismissals Act 1977 – that his employment should have transferred from one employer to another, by virtue of the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980, following the sale of a part of the first employer’s business by a Receiver. The Tribunal observed that Regulation 5 of the 1980 Regulations “makes no express amendment of statute law” and on that basis declined to uphold the Complainant’s claim of unfair dismissal noting that the “Tribunal can only have expressed, not implied, powers”. Having carefully considered Barrington J’s decision in this case, the Court is of the opinion that the primary question the Court focused on was whether or not Council Directive 77/187/EEC (transposed by the 1980 Regulations) was intended to deal with the appointment of a Receiver by a Debenture Holder over the assets of an insolvent company, a matter which at the time had not been considered by the Court of Justice. Barrington J concluded: “One cannot assume therefore that because the Court of Justice has held that the directive does not apply to a sale by a liquidator that it would also hold that the directive does not apply to a sale by a receiver appointed by a debenture holder”. It appears to the Court that Barrington J remitted the matter back to the Employment Appeals Tribunal “to have the facts [in relation to the alleged transfer of undertaking] investigated by a court of first instance” in the context of determining the Applicant’s claim of unfair dismissal arising from alleged unfair selection for redundancy, under the Unfair Dismissals Act 1977. The High Court did not direct the Tribunal to imply a redress provision into the 1980 Regulations. Accordingly, the Court finds that the decision inMythencannot be relied on by the Complainant in this case to support his claim that the Workplace Relations Commission, at first instance, and this Court on appeal, as creatures of statute, can assume jurisdiction to provide redress for breaches of the provisions of a statutory instrument in circumstances where neither the Oireachtas (in enacting the 1997 Act) nor the Minister (in promulgating SI No 709 of 2003 or SI No 672 of 2019) made express provision for a redress mechanism in the case of the category of worker to which the Complainant belongs. As stated previously, Ms Mallon BL also directed the Court to the decision of the Court of Justice of the European Union (‘the CJEU’) inMinister for Justice and Equality, Commissioner of An Garda S?ochána v Workplace Relations CommissionCase 378/17. Counsel submits that the aforementioned judgment is authority for the proposition that this Court – having regard to the doctrine of the primacy of EU law – is obliged to hear the Complainant’s complaints and to make a finding as to whether or not the Respondent was in breach of the Working Time Directive as amended and make an award of compensation if the claims are upheld. It is abundantly clear to this Court that the CJEU in this case found that national courts or tribunals entrusted by national law with jurisdiction to deal with disputes concerning the application of EU law are empowered to disapply, if necessary, “any national provisions or national case law that are contrary to EU law”. The Court is of the view that this is not an issue which arises in the present appeal. The question of disapplying domestic legislation does not arise at all in this case. As stated previously, the Court is a creature of statute and cannot assume a jurisdiction which has not been conferred on it either in primary legislation (i.e. the 1997 Act) by the Oireachtas or by a Minister delegated by the Oireachtas under the 1997 Act (i.e. in SI No 709 of 2003 or SI No 672 of 2019). For this reason also the Court declines to accept the submissions advanced on behalf of the Complainant in relation to the interpretation of the judgment of the CJEU contended for. Second Preliminary Issue The Complainant referred his complaint in relation to public holidays to the Workplace Relations Commission (ADJ-009467/CA-0012370-003) on 7 July 2017. The period comprehended by that complaint, therefore, is 8 January to 7 July 2017. The Complainant’s employment with the Respondent ended in February 2017. No public holiday fell, therefore, in the relevant period. However, Counsel for the Complainant made application to the Court to extend time for bringing the complaint in relation to public holidays. She submits that the Complainant meets the threshold of ‘reasonable cause’ for such an extension for the following reasons: (i) the Complainant was not provided with copies of any documentation by the Respondent in relation to his employment and was not given, for example, a copy of his contract of employment in his native language; and (ii) throughout his period of employment with the Respondent, the Complainant’s grasp of the English language was poor, and, he therefore he had a very limited, if any, understanding of his statutory entitlements. It was accepted on behalf of the Respondent that the Complainant was not furnished with any contractual documents, either in English or in Arabic. However, the Respondent submits that the language spoken onboard the vessel on which the Complainant was employed was English and the Complainant functioned perfectly well in that environment. The Respondent further submits that the Complainant had sufficient English to make complaints to An Garda S?ochána and the Labour Inspectorate at the material time in English and was able to post on Facebook in English. The Complainant told the Court in direct evidence that he had received assistance from the Citizens’ Information Service in Drogheda prior to referring his first-in-time complaint (ADJ-0008053) to the Workplace Relations Commission on 6 April 2017. He received assistance from his solicitors – Mason, Hayes & Curran – when referring his second complaint (ADJ-00009647) on 7 July 2017. In the light of this evidence, the Court finds that there is no basis for acceding to Counsel’s application to extend time for bringing the complaint in relation to public holidays in circumstances where the Complainant was clearly in a position to refer other complaints with the assistance of the Citizens’ Information Service. There appears to be no basis, therefore, on which the Complainant’s failure to bring this complaint within time can be credibly justified or excused. It follows that the complaint in respect of non-payment for public holidays (ADJ-009467/CA-0012370-003) that is before the Court is not well-founded. Conclusion Having regard to the foregoing the Court finds as follows in relation to the complaints referred to it in the within appeal:
The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
