Complainant

Respondent

Parties

Saadalla  Elgendy

MCD Trawling Ltd.

Complainant

Respondent

Representatives

International Transport Workers Federation

 Conways Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043756-001

26/04/2021

The complainant submits that he was unfairly dismissed on the 31 July 2020.

The complainant was employed on an Atypical Work Permit (ATS) scheme for non- EEA fishers on Irish Fishing Vessels. The complainant commenced employment on a particular vessel on 22 April 2016.This vessel and its crew transferred into the employment of the respondent by way of a transfer of undertaking on 9 March 2020.

The complainant’s monthly wage was €2322.

He submitted his complaint to the WRC on 26 April 2021.

In response to the adjudicator raising the requirement for the complaint to be submitted within 6 months of the date of the dismissal, as set out in section 8(2) of the Act of 1977, as amended, the respondent’s solicitor states that the evidence demonstrates that the complainant was in receipt of legal advice in November and December 2020 and that his then solicitor challenged his dismissal on 3 December 2020. As such, no case arises for an extension of time for a further six months as no reasonable cause has been made out by the complainant who was in receipt of legal advice in December 2020.

Without prejudice to this preliminary point, the respondent denies that the complainant was unfairly dismissed.

Witness 1.

The complainant in evidence stated  that the solicitor whom he engaged in November and December 2020 advised him that he had no case because the respondent had already notified the relevant authorities that he was no longer employed with them, and that it was not until he went to the ITWF in  early April 2021 that he understood that he could have a complaint of unfair dismissal and that the reasonable cause provisions could operate in his favour.

Concerning the complainant’s engagement with a solicitor in early December, his representative states that the complainant’s then solicitor in her letter of 3 December 2020 to the respondent, made no reference to the referral of a complaint to the WRC.

In addition, the complainant misunderstood that his notification to the Department of Justice on 11 September 2020 advising them that he had been unfairly dismissed could serve as notification of an unfair dismissal.

The complainant asks the adjudicator to extend time in accordance with section 8(2) of the Act of 1977, as amended.

The complainant contends that he was unfairly dismissed.

He holds an ATS permit for Non- EEA fishers.

Witness 1.

The complainant stated that up until March 2020, he was working on a vessel which sailed out of Howth. He lives in Dublin. In March 2020, and as result of the transfer into the employment of the current respondent, the vessel on which he worked changed its departure point and sailed out of Greencastle, Co Donegal.

On 5 July the respondent requested him to present for work the following day, the 6 July, at 12.00 in Derry from where the respondent would transport him to the fishing port of Greencastle.

The complainant stated that he had missed the bus from Dublin to Derry on the 6 July as he was waiting for his brother to travel from Drogheda to Dublin to join him on the bus journey to Derry.

He chose not to travel to Derry on the 5 July as the accommodation on offer from the respondent in Greencastle was very crowded and the pandemic was at large. The offer of alternative accommodation on the ship berthed in Greencastle was unsuitable as the noise from repairs being undertaken on the ship would have prevented him from sleeping.

On notifying the respondent via WhatsApp that he would be unable to reach Derry by 12 midday, the respondent replied at 11.32 and stated, “Take another week off but you won’t be paid for this week”. He understood this to mean that he was dismissed. The complainant stated that he had telephoned the respondent at an earlier point telling him of the difficulties getting a bus to Derry. Contrary to the respondent’s assertion, the complainant states he received no further contact from the respondent.

Previously, the respondent had driven them from Dublin to Donegal at company expense. The complainant believes that a precedent had been set and that he should have been offered company transport to Donegal.

In cross examination the complainant accepted that under the previous owner he had frequently taken public transport to Killybegs.

He was summarily dismissed by this WhatsApp message. He was afforded no due process or right to appeal his dismissal. The respondent failed to implement its own disciplinary procedure. The sanction applied by the respondent to an otherwise reliable employee was totally disproportionate.

Witness 2.

Mr. Abdelhamid Habashi Ali Mahmoud was a former crewmate of the complainant.

The witness corroborated the evidence of the complainant, stating that the respondent provided private transport to take him from his home in Drogheda to Donegal. He gave evidence that two bedrooms were available in the accommodation in Greencastle. He stated that the accommodation was uncomfortable and crowded particularly given the Covid 19 pandemic. He advised that the complainant had told him at 10 pm on the 5 July of the requirement to be in Derry at 12 midday on the 6 July.

Mitigation.

The complainantt secured four days’ employment in the period 6 August- 20 October, earning €1740 in this ten-week period, as opposed to the €535 earned per week with the respondent.  He took up stable employment on 20 October.

The complainant asks that his complaint be upheld.

Without prejudice to the preliminary point that the complaint is statute- barred, the respondent denies that the complainant was unfairly dismissed.

The complainant worked with the present owner since March 2020. The respondent had renewed his ATS status for him. The complainant was a very good, competent fisher who was usually reliable.

On the 5 July 2020, and not the 6 July as asserted by the complaint, the respondent requested him to report for work in Derry on the 6 July. The vessel on which he worked was set to sail on that date. He failed to turn up for work on 6 July 2020. He failed to inform the master of the vessel of any impediments faced in reaching Derry- the collection point for onward transportation to the fishing port of Greencastle, until 44 minutes before he was due to arrive in Derry. Bus travel from his home in Dublin to Derry was available on the 5 and 6 July. He was offered overnight accommodation in Donegal should he choose to travel on the 5 July.

Witness 3.

Mr. J Gillen the respondent managing director gave evidence that there is a limited time slot within which vessels can fish the quota allowed to each ship in a designated area. It is imperative that the vessel is crewed.  It is essential that crews comply with the ship master’s instructions. It is normal for crews to be given 24 hours’ notice of requirement to report for work.

On being notified by the complainant at 11.16 on the 6 July that he had missed the bus from Dublin to Derry and would, therefore, be unable to reach Derry by 12 noon, the respondent told him that he could take the week off and that he would not be paid. At 11.43, in a second WhatsApp message, the respondent advised the complainant that he could return to work after a period of 10 days.

The witness stated that the company does not want to lose fishers as they are difficult to recruit, and the pandemic was still in being in July 2020. However, he was dismissed on 30 July as the many efforts which the respondent made to contact him after the 6 July came to nought.

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

Before I consider if a contravention of section 6(1) of the Unfair Dismissals Act, 1977 occurred, I must consider the jurisdictional issue of compliance with the statutory time limits.

Section 8 (2) of the Act of 1977, as amended, states

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

The complaint was submitted almost nine months after the dismissal. The adjudicator can extend time in accordance with section 8(2) (b) where reasonable cause for same exists.

The established test for identifying if reasonable cause exists to extend time up to 12 Months is set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 0388.There, the Labour Court determined as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the Complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Applying this test to the circumstances of the instant case, the complainant’s explanation for the delay is that the solicitor whom he engaged in the period November – December 2020 told him that he had no case. He states that it was not until he went to the International Transport Workers Federation in early April 2021 that he understood that he could have a legitimate complaint of unfair dismissal and that the reasonable cause provisions found in section 8 (2) of the Act of 1977, as amended, could operate in his favour.

But this explanation does not sit easily with the evidence which the complainant submitted disclosing that his then solicitor who he states advised him that he had no cause of action, wrote, nonetheless, to the respondent on the 3 December 2020 demanding reinstatement for the complainant and compensation for loss of income from the date of the dismissal- remedies allowable under the Unfair Dismissals Act 1997. The respondent’s solicitor wrote to the complainant’s then solicitor on 8 December 2020 refuting the claim that he had been unfairly dismissed, advising that the complainant had failed to respond to all the efforts made by the respondent in the period 6- 31 July to contact him. The respondent’s solicitor rejected the demands for reinstatement and compensation.

While the advice given to the complainant could have issued after the letter of the 3 December 2020, and could, in theory, explain the delay, the test set out in Skanska and followed in Salesforce.com –v- Leech EDA1615 requires that the factors which explain the delay must also justify the delay.

Does the failure of a third party to submit a complaint within the statutory time limits amount to reasonable cause?

This issue of the failure of a third party to submit a complaint on behalf of a complainant within the statutory time limits has been considered in a number of decisions. The Labour Court in Pat the Baker v Conor Brennan [2018] TUD 1813 dealt with an appeal of an Adjudicator’s decision submitted one day outside of the statutory time limit, due to an acknowledged miscalculation on the part of the complainant’s solicitor. The Court cited Galway & Roscommon ETB v Josephine Kenny UDD1624, (again an appeal submitted by a third party one day outside of the statutory time limit), which stated

‘"the Court cannot accept that a miscalculation of the due date amounts to "exceptional circumstances". The Court elaborated “The miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principle ignorantia juris non excusat (ignorance of the law excuses not) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with the statutory time limit".

Furthermore, the complainant in the instant case failed to disclose any instructions given to his then solicitor to proceed with the submission of his complaint to the WRC.

The second reason for the delay in submitting the complaint is the complaint’s misunderstanding that his letter to the Department of Justice of 11 September 2020 advising them that he had been unfairly dismissed served as notification of an unfair dismissal. Again, in Galway & Roscommon ETB v Josephine Kenny UDD1624, the Court in dealing with that complainant’s misunderstanding of the statutory time limits relied on the decision of the Minister for Finance v CPSU and Ors [2007] 18 ELR 36 where the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.

Based on the evidence submitted which includes a not altogether convincing explanation for the delay, and applying the Labour Court authorities, I am obliged to find that the reasons advanced by the complainant for the failure to comply with the statutory time limits do not afford an excuse for the delay.

I find that I do not have jurisdiction to hear this complaint of a contravention of the Unfair Dismissals Act 1977, as amended.

I decide that I do not have jurisdiction to hear this complaint of a contravention of the Unfair Dismissals Act 1977, as amended.

Omission by third party to submit complaint; failure to meet statutory time limits; reasonable cause.