CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT
This Order corrects the original Decision ADJ-00033565 issued on 30/11/22 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033565
Parties:
| Complainant | Respondent |
Parties | Habib Kannas | O.F. Fishing Ltd. |
Representatives | Michael O'Brien, International Transport Workers Federation |
|
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044027-001 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00044027-002 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00044027-003 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044027-004 | 12/05/2021 |
Date of Adjudication Hearing: 11/05/2022
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020 which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The complainant relied on the affirmation to accompany his testimony.
Summary of Complainant’s Case:
The complainant states that he commenced employment with the respondent on 1 July 2017. He states that the respondent employed him on a “share” basis even though non-EEA migrant fishers like himself should have been enrolled into the Atypical Scheme for non-EEA migrant fisher and received a guaranteed weekly wage based on a 39 hour average working week. The complainant submits that he was subsequently enrolled in the Atypical Scheme for non-EEA Migrant Fishers on 14 May 2019. He states however that the respondent produced a letter on 24 July 2019 again describing him as a “share fisher”.
The complainant states that his contract under the scheme was renewed on 20 April 2020 and expired on 20 April 2021. The complainant stated that he was sick with Covid between 14 April and 16 June 2020. He states that in late July 2020, he was diagnosed with a back injury arising from overwork which from 8 September 2020 for the remainder of 2020 forced him to take extended holidays and recuperation back in Egypt. The complainant states that his stay in Egypt was also prolonged by his mother’s illness which he communicated to his skipper. The complainant states that when he recovered in the new year and returned back to Ireland, the respondent did not provide him with work or communicate to him that he was dismissed, rather the respondent claimed in messages that he had left his employment which the complainant categorically refutes.
The complainant states that after his contract expired with OF Fishing, he managed to obtain work with another boat owner. The complainant states that in relation to hours he actually worked, fishing expeditions normally lasted 6 days and that he would typically work between 18 and 20 hours a day.
It was submitted that the minimum conditions of employment are set out in a standard contract, taking into account subsequent increases in the statutory minimum wage, Section 6 provides that:
Wages The Employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. The Employee will receive working time records and payslips according to the manner in which the employee is paid. The Employee will be paid weekly in arrears into the employee’s bank account. The Employee will be paid weekly, including during periods of inactivity/boat tie-up, an amount not less than the National Minimum Wage for 39 hours, which equates to a minimum annual wage of €18,556, subject to the employer being entitled to deduct for full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction is €54.13 per week or €7.73 per day). The Employee shall, in respect of a Public Holiday, be entitled to one of the following:- -a paid day off on that day -a paid day off within a month -an additional day of annual leave Section 7 covering hours of work provides that: The Employer commits to maintaining records of the employee’s hour of work or rest and annual leave in accordance with the European Communities (Workers on board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709/2003) and the Organisation of Working Time Act 1997. A record of the daily hours of work or rest for the employee, completed monthly in arrears, will be maintained by the Master of the Fishing Vessel(s). This record will be endorsed and signed by the Master and the employee and a copy of the endorsed record will be given to the employee no later than 7 days after the end of the month to which the record relates. The complainant states that he is in possession of an incomplete set of documents relating to his employment relationship with the respondent. The complainant’s union representative submits that in order to obtain a more complete set of documentation in advance of the hearing, the Union wrote to the respondent on 23 March 2022 seeking all records they had pertaining to him under Article 15 of General Data Protection Regulation. However, no response from the respondent was received.
It was submitted that included among the incomplete set of documents in the complainant’s possession is the first page of a contract dated 1 April 2018 and a letter of approval for enrolment into the Atypical Work Permit Scheme from the Department of Justice dated 20 April 2018. The documentation also contains a further letter of approval from the Department of Justice dated 14 May 2019 approving the complainant’s engagement by the respondent for a further 12 months. It was submitted that there is a further letter from the Department of Justice dated 20 April 2020 approving another renewal of the complainant’s engagement by the respondent for 12 months.
The Union official states that the complainant was engaged by the respondent prior to his enrolment in the Atypical Scheme in 2017, that was on an undocumented self employed ‘share of the catch’ basis. The Union acknowledges that the Workplace Relations Commission only has jurisdiction to hear complaints pertaining to direct employment relationships and accordingly the focus will be on the period during which the complainant was engaged under the terms of the Atypical Work Permit scheme.
It was submitted that the complainant recalls that at the point of his enrolment into the Atypical Scheme, he worked on the Fishing Vessel Verlaine until around the end of October 2018 after which he worked on the Fishing Vessel Ocean Harvester II.
CA-00044027-003 National Minimum Wage Act It was submitted that the complainant sought a statement of rate of pay from the respondent on 18 November 2021, as provided for under Section 23 of the Act. There was no response to this request. It was submitted that in the initial WRC complaint form, the complainant was reliant upon his memory to recall the dates and durations of his trips from which lay the basis for a complaint under the Minimum Wage Act. Subsequently the Union made successful Freedom of Information Requests to the Department of Defence for the start and end of voyages on the Verlaine and Ocean Harvester II. These movements are recorded by the Naval Service’s Fisheries Monitoring Centre (FMC). It was submitted that the FMC’s Vessel Monitoring System (VMS) is a tamper proof system and works on the basis of a check in approximately every two hours on vessel location. In the case of the Ocean Harvester II date, an approximate time is given. In the case of the Verlaine in 2018 only the dates are provided. It was submitted that the trips spanning the period of time the complainant was assigned to the Verlaine from April to October 2018 and on the Ocean Harvester II thereafter were forwarded in the submission to the WRC.
The Union submits that there is an estimated shortfall in the complainant’s pay under the Minimum Wage Act totalling €37,196 over the entire period.
The Union maintains that on foot of an investigation by the WRC inspection division, 38 separate payslips were produced within the period during which the complainant was employed under the terms of the Atypical Permit Scheme. It was submitted that 23 of the 38 of the payslips appear to match the lodgements into the complainant’s bank account. The payslips themselves do not contain information on the hours purportedly worked by the complainant. Given both this and the absence of payments for weeks where the complainant was available for work but the vessel was tied up as per the Atypical Work Permit Scheme and the absence of any itemisation of holiday pay, the Union contends that they cannot be deemed acceptable.
CA-00044027-004 – Holidays/Annual Leave entitlement The complainant states that he did not receive holiday pay and none is itemised on the pay slips. The Union submits that if the extension of the cognisable period to 12 months is applied and granted, the holiday pay arising from 427 hours worked in July 2020 is retrievable as well as compensation.
CA-00044027-001 hours of work, break rest periods, working hours beyond the maximum permitted The Union submitted that the dropdown menu in the WRC complaint form dealing with Working Time related complaints does not include complaints being made under the Working Time at Sea Directive which is the appropriate law under which these complaints have to be heard. The Union notes recent Labour Court caselaw where it was ruled that the WRC and Labour Court do not have jurisdiction to hear complaints under this Directive.
CA-00044027-002 Unfair Dismissal The Union submits that the year of 2020 proved a difficult one for the complainant. He contracted Covid at the end of April and missed voyages between 30 April 2020 and 19 June 2020. It was submitted that, as is common among fishers of his age, he developed back problems for which he was diagnosed and certified sick in late July 2020. The Union maintains that in the absence of any occupational sick pay scheme, he attempted to carry on working while taking painkillers throughout July but finally had to take leave to recuperate from August 2020. It was submitted that the complainant’s stay in Egypt was then prolonged when his mother became gravely ill. The Union refers to a message from the skipper to the complainant via the complainant’s brother’s mobile and the subsequent exchanges with the skipper that there was no particular issue on the part of his employers with the extended time off wherein the complainant returned to Egypt for his recuperation and subsequently to look after his mother who became gravely ill.
The Union submits that it is discernible from these texts that from the time the complainant returned to Ireland in January and for the following two months during which he was available for work, his enquiries about resuming work were rebuffed. It was submitted that the complainant was in contract under the terms of the Atypical Scheme until 20 April 2021 and his employer had an obligation to pay him at least 39 hours at minimum wage during this period which they were obliged to do under the scheme.
The Union states that when the complainant’s contract was due to run out and the prospect of becoming undocumented was looming if it was not renewed; the complainant expressed his exasperation in the exchange of phone messages and all of a sudden his enforced absence in Egypt becomes an issue for his employer and likewise the complainant having to find some piecemeal work on other boats when his employer would not provide him with work and this is cited against him.
The Union asserts that had the respondent wished to disengage the complainant mid-contract, it could have simply communicated this desire to the Atypical Unit of the Department of Justice who in turn would have written to the complainant informing him of the ending of the employment relationship and consequently that he would have 28 days to find an alternative employer under the terms of the scheme. The Union states that this did not occur and instead he was effectively strung along for several months on his return from Egypt in the forlorn hope that he would be re-engaged.
Time Limits The complainant is seeking the extension of the time limit to twelve months in accordance with Section 41 (8) of the Workplace Relations Act. The Union submits that such extensions have been granted in other similar migrant fisher cases such as in ADJ-00012683, ADJ-00018491 and ADJ-00018480. The Union contends that in these cases, it was acknowledged that the complainants had a poor command of English, limited understanding of how to protect their rights and were innately vulnerable by the very nature of the Atypical Scheme where not just the employment status but the fisher’s very legal presence in the State is contingent on the yearly renewable contract with the vessel owner. The Union states that prior to being advised by a peer to contact the International Transport Workers Federation, the complainant had no access to advice on how to vindicate his rights. It was submitted that the complainant had and still has a very limited grasp of English and insofar as he has communicated with his employer and indeed his union representative by email or text, it was with the assistance of Google translate or with the assistance of his housemate who has a better grasp of English. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the date and time of the hearing. |
Findings and Conclusions:
I note that the complainant was engaged initially by the respondent on 1 July 2017 as a share fisherman and was remunerated for his work during the relevant period by way of a percentage share of the catch from each fishing trip. I note that the complainant entered into a contract of service under the terms of the Atypical Work Permit Scheme with the respondent on 1 April 2018. The complainant’s representative stated that the contract stated that the complainant would be paid for every hour worked and where there were periods of inactivity, the complainant would be paid on the basis of a 39 hour week. I note the documentation submitted by the complainant which includes correspondence from the Department of Justice approving renewals of contract under the Atypical Work Permit Scheme up to 20 April 2021. I note that the complainant worked on the fishing vessel Verlaine until around the end October and thereafter he worked on the fishing vessel Ocean Harvester II Preliminary Issue regarding extension of time from 6 months to 12 months Having considered this matter, I find that based on the testimony and the arguments put forward on the complainant’s behalf that given his lack of proficiency in English, the fact he did not have knowledge of employment law and his rights and given his vulnerability in this regard, I consider that an extension of time is warranted on reasonable grounds in accordance with section 41(8). Accordingly, the cognisable period in the within claim is from 13 May 2020 until 12 May 2021. CA-00044027-001 Section 27 of the Organisation of Working Time Act – no rest breaks, working excessive hours Having considered the within claims, I am cognisant of the recent Labour Court case in DWT 2222 Galopin Trawlers Ltd. V Ahmed Elganagy where it was ruled that the WRC and Labour Court do not have jurisdiction to hear complaints under the Working Time at Sea Directive. In the circumstances, I find that I have no jurisdiction to deal with these matters. CA-00044027-002 Unfair Dismissal I note from the oral testimony at hearing that no work was provided to the complainant by the respondent on the fishing vessel Ocean Harvester between the beginning of January 2021 and the expiration of the Atypical Work Permit contract on 20 April 2021, a period of 15 weeks and 2 working days. I note that pursuant to Part 6 of the Department of Justice template on Atypical Work Permit for Non EEA Fishers contract obliges payment on the basis of 39 hours during weeks of inactivity or boat tie-up. I note the Union’s point that if it was the case that the respondent was not in a position to provide the complainant with work on the Ocean Harvester or any of the other 17 vessels owned by the employer; the respondent was still obliged for the remainder of the complainant’s contract to pay him 15.4 weeks X Notional 39 hours X €10.20 (minimum wage 2021 rate) which is €6126. I note the testimony of the complainant wherein he stated that he contacted the respondent numerous times requesting work and informed it that he was available for work (which is also corroborated in copies of text messages forwarded in written submissions) but that these enquires were ignored. Based on the uncontested evidence of the complainant, I find that the complainant has established that he was unfairly dismissed and was not provided with work on his return from Egypt in early January 2021 in line with his contract with the respondent which ran up to 20 April 2021. In the circumstances I find that the respondent is in breach of his obligations in this regard. Accordingly, I find that the complainant is entitled to 15.4 weeks X Notional 39 hours X €10.20 (minimum wage 2021 rate) which equates to €6126. CA-00044027-003 Section 24 of the National Minimum Wage Act, 2000 Section 23 of the National Minimum Wage Act 2000 provides that: “(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request. (2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. (3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates. (4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods— (a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1, (b) the working hours of the employee calculated in accordance with section 8, (c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and (d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act. (5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.” Section 24 of the National Minimum Wage Act 2000 deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates: “(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. (2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015— (a) unless the employee— (i) has obtained under section 23 a 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 thatsection for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the Adjudication Officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be” It is evident that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As the complainant has not fulfilled the requirements as set out in section 23 of the Act, which by virtue of section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint. In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator: “For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”. Given the above, I find that I do not have jurisdiction to hear this complaint. CA-00044027-004 Section 27 of the Organisation of Working Time Act, 1997 holiday pay entitlement The complainant maintains that he did not receive holiday pay. In the circumstances given that the cognisable period is from 13 May 2020 until 12 May 2021, I note that, in relation to holiday pay, the complainant was not paid arising from 427 hours worked in July 2020. Based on the uncontested evidence of the complainant, I consider that the respondent is in breach of the Act in this regard. I find that this complaint is well-founded. I order the respondent to pay the complainant €350 in respect of this claim. |
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00044027-001 Section 27 of the Organisation of Working Time Act – no rest breaks, working excessive hours I have no jurisdiction to deal with the within matters. CA-00044027-002 Unfair Dismissal I find that the complainant was unfairly dismissed. I order the respondent to pay the complainant €6,126 in respect of his unfair dismissal. CA-00044027-003 Section 24 of the National Minimum Wage Act, 2000 For the reasons outlined above, I find that I do not have jurisdiction to hear this complaint. CA-00044027-004 Section 27 of the Organisation of Working Time Act, 1997 holiday pay entitlement I find that this complaint is well-founded. I order the respondent to pay the complainant €350 in respect of the breach under this Act. |
Dated: 30th November 2022
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Key Words:
Unfair Dismissals Act, National Minimum Wage Act, holiday pay entitlement |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033565
Parties:
| Complainant | Respondent |
Parties | Habib Kannas | O.F. Fishing Ltd. |
Representatives | Michael O'Brien, International Transport Workers Federation |
|
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044027-001 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00044027-002 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00044027-003 | 12/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044027-004 | 12/05/2021 |
Date of Adjudication Hearing: 11/05/2022
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020 which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The complainant relied on the affirmation to accompany his testimony.
Summary of Complainant’s Case:
The complainant states that he commenced employment with the respondent on 1 July 2017. He states that the respondent employed him on a “share” basis even though non-EEA migrant fishers like himself should have been enrolled into the Atypical Scheme for non-EEA migrant fisher and received a guaranteed weekly wage based on a 39 hour average working week. The complainant submits that he was subsequently enrolled in the Atypical Scheme for non-EEA Migrant Fishers on 14 May 2019. He states however that the respondent produced a letter on 24 July 2019 again describing him as a “share fisher”.
The complainant states that his contract under the scheme was renewed on 20 April 2020 and expired on 20 April 2021. The complainant stated that he was sick with Covid between 14 April and 16 June 2020. He states that in late July 2020, he was diagnosed with a back injury arising from overwork which from 8 September 2020 for the remainder of 2020 forced him to take extended holidays and recuperation back in Egypt. The complainant states that his stay in Egypt was also prolonged by his mother’s illness which he communicated to his skipper. The complainant states that when he recovered in the new year and returned back to Ireland, the respondent did not provide him with work or communicate to him that he was dismissed, rather the respondent claimed in messages that he had left his employment which the complainant categorically refutes.
The complainant states that after his contract expired with OF Fishing, he managed to obtain work with another boat owner. The complainant states that in relation to hours he actually worked, fishing expeditions normally lasted 6 days and that he would typically work between 18 and 20 hours a day
It was submitted that the minimum conditions of employment are set out in a standard contract, taking into account subsequent increases in the statutory minimum wage, Section 6 provides that:
Wages The Employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. The Employee will receive working time records and payslips according to the manner in which the employee is paid. The Employee will be paid weekly in arrears into the employee’s bank account. The Employee will be paid weekly, including during periods of inactivity/boat tie-up, an amount not less than the National Minimum Wage for 39 hours, which equates to a minimum annual wage of €18,556, subject to the employer being entitled to deduct for full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction is €54.13 per week or €7.73 per day). The Employee shall, in respect of a Public Holiday, be entitled to one of the following:- -a paid day off on that day -a paid day off within a month -an additional day of annual leave Section 7 covering hours of work provides that: The Employer commits to maintaining records of the employee’s hour of work or rest and annual leave in accordance with the European Communities (Workers on board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709/2003) and the Organisation of Working Time Act 1997. A record of the daily hours of work or rest for the employee, completed monthly in arrears, will be maintained by the Master of the Fishing Vessel(s). This record will be endorsed and signed by the Master and the employee and a copy of the endorsed record will be given to the employee no later than 7 days after the end of the month to which the record relates. The complainant states that he is in possession of an incomplete set of documents relating to his employment relationship with the respondent. The complainant’s union representative submits that in order to obtain a more complete set of documentation in advance of the hearing, the Union wrote to the respondent on 23 March 2022 seeking all records they had pertaining to him under Article 15 of General Data Protection Regulation. However, no response from the respondent was received.
It was submitted that included among the incomplete set of documents in the complainant’s possession is the first page of a contract dated 1 April 2018 and a letter of approval for enrolment into the Atypical Work Permit Scheme from the Department of Justice dated 20 April 2018. The documentation also contains a further letter of approval from the Department of Justice dated 14 May 2019 approving the complainant’s engagement by the respondent for a further 12 months. It was submitted that there is a further letter from the Department of Justice dated 20 April 2020 approving another renewal of the complainant’s engagement by the respondent for 12 months.
The Union official states that the complainant was engaged by the respondent prior to his enrolment in the Atypical Scheme in 2017, that was on an undocumented self employed ‘share of the catch’ basis. The Union acknowledges that the Workplace Relations Commission only has jurisdiction to hear complaints pertaining to direct employment relationships and accordingly the focus will be on the period during which the complainant was engaged under the terms of the Atypical Work Permit scheme.
It was submitted that the complainant recalls that at the point of his enrolment into the Atypical Scheme, he worked on the Fishing Vessel Verlaine until around the end of October 2018 after which he worked on the Fishing Vessel Ocean Harvester II.
CA-00044288-003 National Minimum Wage Act It was submitted that the complainant sought a statement of rate of pay from the respondent on 18 November 2021, as provided for under Section 23 of the Act. There was no response to this request. It was submitted that in the initial WRC complaint form, the complainant was reliant upon his memory to recall the dates and durations of his trips from which lay the basis for a complaint under the Minimum Wage Act. Subsequently the Union made successful Freedom of Information Requests to the Department of Defence for the start and end of voyages on the Verlaine and Ocean Harvester II. These movements are recorded by the Naval Service’s Fisheries Monitoring Centre (FMC). It was submitted that the FMC’s Vessel Monitoring System (VMS) is a tamper proof system and works on the basis of a check in approximately every two hours on vessel location. In the case of the Ocean Harvester II date, an approximate time is given. In the case of the Verlaine in 2018 only the dates are provided. It was submitted that the trips spanning the period of time the complainant was assigned to the Verlaine from April to October 2018 and on the Ocean Harvester II thereafter were forwarded in the submission to the WRC.
The Union submits that there is an estimated shortfall in the complainant’s pay under the Minimum Wage Act totalling €37,196 over the entire period.
The Union maintains that on foot of an investigation by the WRC inspection division, 38 separate payslips were produced within the period during which the complainant was employed under the terms of the Atypical Permit Scheme. It was submitted that 23 of the 38 of the payslips appear to match the lodgements into the complainant’s bank account. The payslips themselves do not contain information on the hours purportedly worked by the complainant. Given both this and the absence of payments for weeks where the complainant was available for work but the vessel was tied up as per the Atypical Work Permit Scheme and the absence of any itemisation of holiday pay, the Union contends that they cannot be deemed acceptable.
CA-00044288-005 – Holidays/Annual Leave entitlement The complainant states that he did not receive holiday pay and none is itemised on the pay slips. The Union submits that if the extension of the cognisable period to 12 months is applied and granted, the holiday pay arising from 427 hours worked in July 2020 is retrievable as well as compensation.
CA-00044288-001 hours of work, break rest periods, working hours beyond the maximum permitted The Union submitted that the dropdown menu in the WRC complaint form dealing with Working Time related complaints does not include complaints being made under the Working Time at Sea Directive which is the appropriate law under which these complaints have to be heard. The Union notes recent Labour Court caselaw where it was ruled that the WRC and Labour Court do not have jurisdiction to hear complaints under this Directive.
CA-00044288-002 Unfair Dismissal The Union submits that the year of 2020 proved a difficult one for the complainant. He contracted Covid at the end of April and missed voyages between 30 April 2020 and 19 June 2020. It was submitted that, as is common among fishers of his age, he developed back problems for which he was diagnosed and certified sick in late July 2020. The Union maintains that in the absence of any occupational sick pay scheme, he attempted to carry on working while taking painkillers throughout July but finally had to take leave to recuperate from August 2020. It was submitted that the complainant’s stay in Egypt was then prolonged when his mother became gravely ill. The Union refers to a message from the skipper to the complainant via the complainant’s brother’s mobile and the subsequent exchanges with the skipper that there was no particular issue on the part of his employers with the extended time off wherein the complainant returned to Egypt for his recuperation and subsequently to look after his mother who became gravely ill.
The Union submits that it is discernible from these texts that from the time the complainant returned to Ireland in January and for the following two months during which he was available for work, his enquiries about resuming work were rebuffed. It was submitted that the complainant was in contract under the terms of the Atypical Scheme until 20 April 2021 and his employer had an obligation to pay him at least 39 hours at minimum wage during this period which they were obliged to do under the scheme.
The Union states that when the complainant’s contract was due to run out and the prospect of becoming undocumented was looming if it was not renewed; the complainant expressed his exasperation in the exchange of phone messages and all of a sudden his enforced absence in Egypt becomes an issue for his employer and likewise the complainant having to find some piecemeal work on other boats when his employer would not provide him with work and this is cited against him.
The Union asserts that had the respondent wished to disengage the complainant mid-contract, it could have simply communicated this desire to the Atypical Unit of the Department of Justice who in turn would have written to the complainant informing him of the ending of the employment relationship and consequently that he would have 28 days to find an alternative employer under the terms of the scheme. The Union states that this did not occur and instead he was effectively strung along for several months on his return from Egypt in the forlorn hope that he would be re-engaged.
Time Limits The complainant is seeking the extension of the time limit to twelve months in accordance with Section 41 (8) of the Workplace Relations Act. The Union submits that such extensions have been granted in other similar migrant fisher cases such as in ADJ-00012683, ADJ-00018491 and ADJ-00018480. The Union contends that in these cases, it was acknowledged that the complainants had a poor command of English, limited understanding of how to protect their rights and were innately vulnerable by the very nature of the Atypical Scheme where not just the employment status but the fisher’s very legal presence in the State is contingent on the yearly renewable contract with the vessel owner. The Union states that prior to being advised by a peer to contact the International Transport Workers Federation, the complainant had no access to advice on how to vindicate his rights. It was submitted that the complainant had and still has a very limited grasp of English and insofar as he has communicated with his employer and indeed his union representative by email or text, it was with the assistance of Google translate or with the assistance of his housemate who has a better grasp of English. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the date and time of the hearing. |
Findings and Conclusions:
I note that the complainant was engaged initially by the respondent on 1 July 2017 as a share fisherman and was remunerated for his work during the relevant period by way of a percentage share of the catch from each fishing trip. I note that the complainant entered into a contract of service under the terms of the Atypical Work Permit Scheme with the respondent on 1 April 2018. The complainant’s representative stated that the contract stated that the complainant would be paid for every hour worked and where there were periods of inactivity, the complainant would be paid on the basis of a 39 hour week. I note the documentation submitted by the complainant which includes correspondence from the Department of Justice approving renewals of contract under the Atypical Work Permit Scheme up to 20 April 2021. I note that the complainant worked on the fishing vessel Verlaine until around the end October and thereafter he worked on the fishing vessel Ocean Harvester II Preliminary Issue regarding extension of time from 6 months to 12 months Having considered this matter, I find that based on the testimony and the arguments put forward on the complainant’s behalf that given his lack of proficiency in English, the fact he did not have knowledge of employment law and his rights and given his vulnerability in this regard, I consider that an extension of time is warranted on reasonable grounds in accordance with section 41(8). Accordingly, the cognisable period in the within claim is from 13 May 2020 until 12 May 2021. CA-00044288-001 Section 27 of the Organisation of Working Time Act – no rest breaks, working excessive hours Having considered the within claims, I am cognisant of the recent Labour Court case in DWT 2222 Galopin Trawlers Ltd. V Ahmed Elganagy where it was ruled that the WRC and Labour Court do not have jurisdiction to hear complaints under the Working Time at Sea Directive. In the circumstances, I find that I have no jurisdiction to deal with these matters. CA-00044288-002 Unfair Dismissal I note from the oral testimony at hearing that no work was provided to the complainant by the respondent on the fishing vessel Ocean Harvester between the beginning of January 2021 and the expiration of the Atypical Work Permit contract on 20 April 2021, a period of 15 weeks and 2 working days. I note that pursuant to Part 6 of the Department of Justice template on Atypical Work Permit for Non EEA Fishers contract obliges payment on the basis of 39 hours during weeks of inactivity or boat tie-up. I note the Union’s point that if it was the case that the respondent was not in a position to provide the complainant with work on the Ocean Harvester or any of the other 17 vessels owned by the employer; the respondent was still obliged for the remainder of the complainant’s contract to pay him 15.4 weeks X Notional 39 hours X €10.20 (minimum wage 2021 rate) which is €6126. I note the testimony of the complainant wherein he stated that he contacted the respondent numerous times requesting work and informed it that he was available for work (which is also corroborated in copies of text messages forwarded in written submissions) but that these enquires were ignored. Based on the uncontested evidence of the complainant, I find that the complainant has established that he was unfairly dismissed and was not provided with work on his return from Egypt in early January 2021 in line with his contract with the respondent which ran up to 20 April 2021. In the circumstances I find that the respondent is in breach of his obligations in this regard. Accordingly, I find that the complainant is entitled to 15.4 weeks X Notional 39 hours X €10.20 (minimum wage 2021 rate) which equates to €6126. CA-00044288-003 Section 24 of the National Minimum Wage Act, 2000 Section 23 of the National Minimum Wage Act 2000 provides that: “(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request. (2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. (3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates. (4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods— (a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1, (b) the working hours of the employee calculated in accordance with section 8, (c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and (d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act. (5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.” Section 24 of the National Minimum Wage Act 2000 deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates: “(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. (2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015— (a) unless the employee— (i) has obtained under section 23 a 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 thatsection for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the Adjudication Officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be” It is evident that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As the complainant has not fulfilled the requirements as set out in section 23 of the Act, which by virtue of section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint. In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator: “For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”. Given the above, I find that I do not have jurisdiction to hear this complaint. CA-00044288-005 Section 27 of the Organisation of Working Time Act, 1997 holiday pay entitlement The complainant maintains that he did not receive holiday pay. In the circumstances given that the cognisable period is from 13 May 2020 until 12 May 2021, I note that, in relation to holiday pay, the complainant was not paid arising from 427 hours worked in July 2020. Based on the uncontested evidence of the complainant, I consider that the respondent is in breach of the Act in this regard. I find that this complaint is well-founded. I order the respondent to pay the complainant €350 in respect of this claim. |
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00044288-001 Section 27 of the Organisation of Working Time Act – no rest breaks, working excessive hours I have no jurisdiction to deal with the within matters. CA-00044288-002 Unfair Dismissal I find that the complainant was unfairly dismissed. I order the respondent to pay the complainant €6,126 in respect of his unfair dismissal. CA-00044288-003 Section 24 of the National Minimum Wage Act, 2000 For the reasons outlined above, I find that I do not have jurisdiction to hear this complaint. CA-00044288-005 Section 27 of the Organisation of Working Time Act, 1997 holiday pay entitlement I find that this complaint is well-founded. I order the respondent to pay the complainant €350 in respect of the breach under this Act. |
Dated: 30th November 2022
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Key Words:
Unfair Dismissals Act, National Minimum Wage Act, holiday pay entitlement |