Complainant

Respondent

Parties

Elamir  Elamdkhoum

R & E Fish

Representatives

Michael O'Brien International Transport Workers Federation

Ruairí Ó Catháin Conway Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046459-001

29/09/2021

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

CA-00046459-002

29/09/2021

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

CA-00046459-004

29/09/2021

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

CA-00046459-005

29/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046459-006

29/09/2021

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

CA-00046459-007

29/09/2021

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

CA-00046459-008

29/09/2021

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

CA-00046459-009

29/09/2021

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

CA-00046459-010

29/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046459-011

29/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00046459-012

29/09/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under oath, the respondent gave her evidence under affirmation while the interpreter provided by the WRC undertook to fulfil the role under oath.

At the outset the complainant’s representative submitted that it accepted that the WRC has no jurisdiction to hear complaints under Part II of the Organisation of Working Time Act 1997 and that this related to four complaints numbered CA00046459-007, -008, -009, and -010.  However, in its closing arguments, the complainant’s representative indicated that they are seeking a ruling in relation to these matters.

The complainant was employed under permission granted by the Minister for Justice pursuant to the Atypical Working Scheme for Fishers.

The claimant submitted that he was employed with the respondent under the atypical work scheme for non-EEA fishers, and that he was required to be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay. It was submitted that he should receive working time records and pay slips according to the manner in which he is paid.

The complainant submitted that in accordance with the atypical work scheme he is required to be paid weekly including during periods of inactivity\boat tie up an amount not less than the national minimum wage for 39 hours, subject to the employer being entitled to deduct for full board and lodging in accordance with the national minimum wage act currently €54.13 per week.

The complainant also submitted that the scheme allows for a person to be entitled to a paid day off, a paid day off within a month or an additional day of annual leave in respect of public holidays.

The complainant first began working for the respondent on 4 December 2019 he then received further approval in October 2020 under the scheme. The complainant submitted that in order to advance this complaint he first sought documentation from the respondent under GDPR but that no documentation was forthcoming.  He submitted that he had done everything that he could to get this documentation.

CA00046459-001 Minimum Wage

On 1 April 2021 the complainant sought a breakdown of his rate of pay from his former employer by text message.  The complainant submitted that he was not given a breakdown, and this is a failure under the National Minimum Wage Act.

The complainant submitted that the Atypical Work scheme for Fishers requires the employer to pay minimum wage for the 39 hours per week and on this basis the complainant submitted that he was owed a further €11,540.78 in order to comply with the minimum wage aspect of the scheme.

CA00046459-002 Sunday Payment

The complainant submitted that he was not paid a premium for Sunday work but acknowledged that this matter cannot be upheld by the WRC as it falls outside the jurisdiction of the WRC.

CA00046459-004 Annual Leave

The complainant submitted that he was not provided with nor paid for annual leave as provided for in Part 3 of the Organisation of Working Time Act.

CA00046459-005 Public Holidays

The complainant submitted that he was not paid appropriately for the public holiday to which he was entitled on Monday 26 October 2021.

CA00046459-006 Payment of Wages

The complainant submitted that he should have received a week’s payment in lieu of notice.

CA00046459-011 Terms of Information

The complainant submitted that he did not receive nor sign copies of his contract and that he did not receive the terms of his employment in writing in accordance with the Act.

CA00046459-012 Employment Equality

The complainant submitted that he did not receive equal pay to named comparators on the basis of his nationality.

Complainants’ testimony:

The claimant stated that he was working from 2019 and gave evidence that about six to seven people crewed the boat.  He said that they were Polish Bulgarian and Egyptian three Polish one Bulgarian and three Egyptian sailors. However, he said that on occasion the crew consisted of nine people.

The complainant said he was not given a form to sign [as per the statutory instrument]. He said that he used to have to sign a letter for every trip. He stated that the trip from port to fishing grounds took 18 to 20 hours and during this time they had to clean the boat change filters sometimes cooking and there were maybe six to seven hours of watch keeping during the trip.

He said that the boat would take about 5 hours per trawl, and that sometimes they did three or four net shots per day. He said he was also involved in the cleaning of fish, the freezing of prawns, and net maintenance.  He outlined that watch keeping was shared amongst the experienced crew only apart from the captain. He said he had no contact with any inspector from the WRC.

He said that he did not turn up for work on the 31 January 2021 but was available for work the whole day on 1 February2021 first.  He was told that the boat had extra crew and he was to sit this one out. He was waiting to be asked to come back to work but noted that there were more crew members available to work than there had been in 2020. As regards the end of his employment he said he had tried to go back to work on a number of occasions but that he was told that there were too many people.

When asked about his contract he noted that that was not his signature on the contract and that when the first contract was signed he was not present in Ireland.

Under cross examination, it was put to him that he did sign the contract but that if he hadn't signed the contract, he must not be an employee and therefore is not entitled to make a complaint to the WRC. In response he stated that it was not his signature as at the time he was working on a boat in Honduras. He suggested that the captain may have been asked for somebody to sign the document but that it was not him.

The complainant indicated but he was required to work more hours then was contained in his contract he said that before and after trips he cleaned equipment and for example accepted delivery of the diesel and he noted that there were five fuel tanks on board not two. The respondent’s representative said that evidence would be given that he could not mend nets and therefore was not required to do this, however the complainant insisted that he did mend nets.

When requested, the complainant gave evidence that he kept watch along with other watch keepers and named one Eric. He said that this accounted for one to two hours only on the way out.

He said that there were four fishing shots per day, but on occasion sometimes more. When challenged regarding this he indicated that the majority of fishing trips involved this number fishing shots.

As regards sorting fish, it was put to the complainant that the grading role was assigned to two experienced deckhands, and he was not one of them. It was put to the complainant that he gave evidence that he was effectively a mechanic, which he agreed with, but it was put to him that he did not to the work of a mechanic however he noted he fixed a generator.

It was put to the complainant that when he turned up for work on the 1 February 2021, he was told that the trawler had left the day before when he didn't show up.

When it was suggested to the complainant that he was overstating the number of fish shots per voyage and it was suggested to him that this was not supported by the capacity of the ship, he indicated that the average troll was anywhere from 30 to 600 kilogrammes and noted that the vessel was caught with extra fish on board at one point.

When the complainant was asked about the hours of rest sheets, he indicated that he had never seen it and never signed it. He noted he thought he didn't get any pay slips and didn't get paid what he was owed.   He noted that he tried to speak to the skipper, and he spoke to the office manager who said she would speak to the accountants, however he never received any pay slips.  

The respondent’s representative put it to the complainant that if he was treated so badly why didn't he just leave and find work elsewhere, the complainant responded that he had been promised a share of the catch and that's why he stayed.

CA00046459-001 Minimum Wage

The respondents submitted that no evidence was put forward to support the complainant’s contention that he was not paid the minimum wage.

CA00046459-002 Sunday Payment

The respondents submitted that this claim should fail as it has been put forward under the wrong Act.

CA00046459-004 Annual Leave

The respondent submitted that the holiday pay due to the complainant was paid over to him following contravention proceedings taken by the WRC.

CA00046459-005 Public Holidays

The respondents submitted that the complaint regarding public holidays was submitted outside of the time frame allowed under the act.

CA00046459-006 Payment of Wages

The respondent submitted that as no termination of employment took place, there was no obligation to pay notice to the complainant.

CA00046459-011 Terms of Information

The respondent submitted that contracts were returned to the complainant and those contracts were signed and returned, and a copy has been retained. A copy of these documents has been provided to the complainant.

CA00046459-012 Employment Equality

The respondent accepted that the named comparators were paid differently to the complaint. It was pointed out that the legislation requires that people working under the atypical work scheme for fishers are directly employed and cannot be self-employed. The named comparators are all self-employed.

Witness Evidence for the respondent:

The witness for the respondent was a director of the respondent company.  She noted that she gave a copy of the contract to the solicitor and that contract had been provided to the skipper and she confirmed that it was not signed in her presence. She confirmed that she was ashore based manager and would have given skipper the skipper instruction. She noted that she has done trips on trawlers but did not do a trip with this particular crew. She noted that the first contract was handed to the complainant in July 2020 along with his pay slips in Castletownbere.

The witness noted that the boat was a 24-metre prawn vessel with a 10-tonne capacity in the fish room. She noted that quotas were reduced and varied between 5 to 8 tonnes per month. She noted that the daily average catch was between 450 kilogrammes and 750 kilogrammes. She acknowledged that they were found to have breached their quota in November 2020.

The witness submitted that from her knowledge and experience there would have been two to three fishing operations per day and each operation would take six to seven hours per day and noted that usually the third operation only takes place if there is a difficulty with one of the first two. She noted that it was physically impossible to do more than four operations or shots per day

She noted that the sorting of the catch was too important a job to allow an inexperienced person to undertake.  She also noted that the respondent is always insistent on work breaks and rest periods being adhered to and noted that she was never approached regarding any problems by the complainant.  No complaints were raised when his contract was renewed.

The witness, in reference to watch keeping, hoped the complainant was not allowed to keep watch as he was not experienced enough, and that role is usually restricted to the three deckhands and the skipper.

In relation to working before and after the trips she said that crew would arrive few hours before a trip and would put food on board but that it was not possible to work the hours suggested by the complainant.

In relation to his role the witness said that if anything he was a maintenance man rather than an engineer but that he had to be asked to stop trying to fix things as he was causing more problems.

The witness said that payment was usually made directly into a bank account and that pay slips were handed to the individuals in July and December 2020 she noted that holiday pay and Sunday premium were not included in the pay slips before September 2020.

The witness noted that she was disappointed when the complainant did not come back to work.  She also noted that the boat went down and was gone from March 21 onwards.

Under cross examination, it was put to the witness that the signature on the power of attorney form was not the same as a signature on the contract. In fact, it was noted that it was not at signature at all as it was in capitals.

The witness noted that none of the rest of the crew worked the hours alleged by the complainant and therefore it does not add up that he had to work those hours.

In clarifying the amount of fish shots, she noted that a trawl can take anything up to 7 hours and therefore it's not mathematically possible to do for trawls a day.  In addition, fuel wise, it wouldn't be possible as they wouldn't have had the fuel to do 4 operations per day.  As regards the issue of pay slips she doesn't know anything but noted that holiday pay is not recorded on pay slips. She also noted that no deductions were recorded for food and board, and this would narrow the gap of the payment of wages claim.

As regards the pay arrangements the witness noted that the Polish colleagues would have earned in excess but that they were employed on a different basis and that the complainant was the second highest gross that year after the skipper. She acknowledged that the share of the catch arrangement was more lucrative before 2019 but that in fact the Polish colleagues had recently sought to go on the contract because it had become the more lucrative option.

She confirmed that she never notified the Department of the end of the employment but that it was understood between ‘both of us' that the employment ended.

The witness confirmed that the approved capacity for the crew was 7 and that the pool of available crew had expanded in 2021.

Under redirection the witness confirmed that the complainant did not show up for the trip leaving at the end of January and she outlined the payments that were made at the end of October. She noted the bonus payments paid to the complainant in June, October and November were also in lieu of Sunday pay.

Preliminary Matter – Jurisdiction

Section 3 of the Organisation of Working Time Act, 1997 states as follows:

(1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces.

(2) Subject to subsection (4), Part II shall not apply to—

(a) a person engaged in—

(i) sea fishing,

(ii) other work at sea, or

(iii) the activities of a doctor in training,

(b) a person—

(i) who is employed by a relative and is a member of that relative’s household or is employed by the person’s civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and

(ii) whose place of employment is a private dwelling house or a farm in or on which he or she and the relative or civil partner reside, or

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

(3) The Minister may, after consultation with any other Minister of the Government who, in the opinion of the Minister, might be concerned with the matter, by regulations exempt from the application of a specified provision or provisions of this Act persons employed in any specified class or classes of activity—

(a) involving or connected with the transport (by whatever means) of goods or persons, or

(b) in the civil protection services where, in the opinion of the Minister and any other Minister of the Government in whom functions stand vested in relation to the service concerned, the inherent nature of the activity is such that, if the provision concerned were to apply to the said person, the efficient operation of the service concerned would be adversely affected.

(4) The Minister may, after consultation with any other Minister of the Government who, in the opinion of the Minister, might be concerned with the matter, by order provide that a specified provision or provisions of this Act or, as the case may be, of Part II shall apply to a specified class or classes of person referred to in subsection (1) or (2) and for so long as such an order remains in force the said provision or provisions shall be construed and have effect in accordance with the order.

(5) The reference in subsection (4) to an order in force shall, as respects such an order that is amended by an order in force under section 7 (4), be construed as a reference to the first-mentioned order as so amended.

In accordance with Section 3(2)(a)(i) of the Act, I find that I have no jurisdiction to hear claims relating to part II of the Act.  This includes complaints CA00046459-002; CA; CA00046459-007; CA00046459-008; CA00046459-009; & 00046459-010

Substantive matters:

The complainant gave direct evidence regarding life on board the vessel at sea.  The only respondent witness confirmed that she had never travelled with this particular crew.  Accordingly, the was no direct testimony contradicting the complainant’s evidence.  The complainant came across as reasonably credible, giving his evidence in a straight-forward manner providing additional detail on occasion with the help of the interpreter.  He responded to questioning and cross-examination in the same fashion.

CA00046459-001 Minimum Wage

In relation to the minimum wage complaint, I note that the WRC inspectorate undertook an investigation into the respondent and as part of that investigation, payments were made to the complainant. However, I note that the inspector never spoke to the complainant and therefore did not have the benefit of the complainant’s testimony.

I note that the direct evidence of the complainant is that he worked up to 17 hours per day and that this evidence was not contradicted either by someone who was present during his working hours nor by accurate documentation regarding the working times of crews.  The respondent witness confirmed that she never travelled with ‘this particular crew’ and therefore the evidence of the complainant, although tested, has effectively not been challenged.

I note that the respondent has indicated that the evidence put forward including the Global Fishing Watch records do not serve to establish the complaints made by the complainant.  However, the respondent has not been able to point to any evidence or any documentation that would contradict those records or, had they kept appropriate records, would prove the working time hours of the complainant to my satisfaction.  Notwithstanding this element of the complaint, I note that he sought the appropriate records under the Act, and these were not forthcoming.  Therefore, I am satisfied that the complainant has established his complaint regarding a breach of this act.  I find that this act was contravened. 

I am satisfied that the complainant was not let go from his position and the Department was never notified of a termination of the complainant’s contract under the Atypical Work scheme for Fishers.  There was an onus on the employer to inform the Department if his employment came to an end, this notice was never served.  Accordingly, I am satisfied that his employment continued beyond the date of 1 February 2021.

In circumstances where the respondent cannot prove the number of hours the complainant worked and where the employment relationship continued after 1 February, I am satisfied that the arrears amount to €11,540.78 as put forward by the complainant.

CA00046459-004 Annual Leave

The complainant submitted that he was not paid for his holidays but gave no detail as to how many days he was seeking other than to indicate that he was seeking the statutory allowance.  The respondent submitted that the complaint took holidays and was paid for them and provided an excel spreadsheet showing that he took 17 days holidays.  In the circumstances, I am satisfied that the complainant was entitled to 20 days and was therefore left 3 days short.  Having regard to the foregoing, I find that the complaint is well founded and consider that compensation equivalent to 5 days holidays is just and equitable in all the circumstances – 5 days at minimum wage for 8 hours: €10.20 x 8 = €81.60 per day x 5 = €408

CA00046459-005 Public Holidays

The complainant suggested that he should have been paid for the public holiday that fell on 26 October 2020.  The documentation submitted by the respondent indicates that the complainant worked a minimum of 9 hours that day.  The respondent suggested that this matter was received by the WRC outside of the timeframe envisaged by the Act.

Section 41 (6) & (8) of the Workplace Relations Act state as follows:

(6) Subject to subsection (8), an 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.

…

(8) 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.

Having regard to the circumstances of this case whereby no records relating to case have been forthcoming, I am satisfied that section 41(8) of the Act is appropriated and find that the complaint was lodged in time.  Arising from this and where the respondent has conceded that the complainant worked at least 9 hours on the day in question, I find that the complaint is well founded and consider that compensation equivalent to 5 days’ pay is just and equitable in all the circumstances – €408

CA00046459-006 Payment of Wages

The complainant is seeking payment in lieu of notice, the respondent submitted that the complainant was not dismissed.  In circumstances where I have found that the employment relationship did not come to an end on 1 February, 2021 but rather continued to the end of his contract, I am not satisfied that this complaint is well founded.

CA00046459-011 Terms of Information

The complainant gave evidence that he did not receive a contract of employment. I found the witness to be credible. The witness for the respondent gave evidence that she gave the contract to, and received it back from, the ships captain.  Although the witness for the respondent gave credible evidence, no direct evidence was put forward to contradict the complainant’s account.  I note that evidence of the complainant is that he did not sign a contract, and the response of the respondent’s representative is that if he did not sign a contract, he must not be an employee.  I also note that the respondent’s witness confirmed that the complainant was an employee working under an employment permission and was in receipt of payment of wages paid to him from the respondent.  In light of this evidence, I find that the complainant was an employee and given the lack of direct evidence to the contrary I find that the complainant did not receive a copy of his terms and conditions in writing in accordance with the legislation.  Accordingly, his compliant is well founded and I consider that compensation equivalent to 5 days’ pay is just and equitable in all the circumstances – €408

CA00046459-012 Employment Equality

The complainant submitted that he did not receive equal pay to named comparators on the basis of his nationality.  The respondent accepted that the named comparators were paid differently to the complaint and was pointed out that the legislation requires that people working under the atypical work permit scheme for fishers are directly employed and cannot be self-employed.

Section 85A(1) of the Act states as follows:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The complainant has established facts from which it may be presumed that there has been discrimination in relation to him.  Accordingly, it falls to the respondent to prove the contrary.

The respondent submitted that the named comparators are all self-employed and according to the provisions of the Atypical Work Permit scheme for Fishers, the complainant cannot be paid in the same fashion as the comparators.

Section 29(5) of the Employment Equality Act states that

Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

The respondent agrees that the complainant was paid a different rate to his seafaring colleagues but pointed out that this situation arose due to the provisions of the Atypical Work Scheme and not as a result of discrimination as alleged.  Having considered all the written and oral evidence from both parties, I am satisfied that the difference in pay arose from grounds other than discrimination and I find that the complainant was not discriminated against.

CA00046459-002; CA; CA00046459-007; CA00046459-008; CA00046459-009; & 00046459-010 - Having considered the submissions in relation to these matters, my decision is that I have no jurisdiction to hear complaints that relate to Part II of the Organisation of Working Time Act, 1997.

CA00046459-001 Minimum Wage

Having considered all the written and oral evidence put forward by the parties, my decision is that the Act was contravened, and I direct the respondent to pay the complainant the arrears which amount to €11,540.78

CA00046459-004 Annual Leave

Having considered all the written and oral submission made in relation to this matter, my decision is that the complaint is well founded, and I award the complainant compensation of €408 which I consider to be just and equitable having regard to all the circumstances.

CA00046459-005 Public Holidays

Having considered all the written and oral submission made in relation to this matter, my decision is that the complaint is well founded, and I award the complainant compensation of €408 which I consider to be just and equitable having regard to all the circumstances.

CA00046459-006 Payment of Wages

Having considered all the written and oral submission made in relation to this matter, my decision is that the complaint is not well founded.

CA00046459-011 Terms of Information

Having considered all the written and oral submission made in relation to this matter, my decision is that the complaint is well founded, and I award the complainant compensation of €408 which I consider to be just and equitable having regard to all the circumstances.

CA00046459-012 Employment Equality

Having considered all the written and oral submissions made in relation to this matter, my decision is that the complainant was not discriminated against.

No jurisdiction Organisations of Working Time Part II - Minimum Wage – contravened – award -Annual Leave – well founded – Compensation - Public Holidays - Well founded – compensation - Payment of Notice payment – not well founded – Terms of Information – well founded – compensation - Employment Equality – no discrimination