Complainant

Respondent

Parties

Habib  Kannas

Inish Trawlers Ltd.

Representatives

Michael O'Brien, International Transport Workers Federation

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-00044288-001

24/05/2021

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

CA-00044288-002

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00044288-003

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044288-005

24/05/2021

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.

The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the date and time of the hearing.

I find that the within complaint is a duplicate claim of that relating to ADJ 33565 which has already been adjudicated upon.

 I find that the within complaint is a duplicate claim of that relating to ADJ 33565 which has already been adjudicated upon.

Unfair Dismissals Act, National Minimum Wage Act, holiday pay entitlement