ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041328
Parties:
| Complainant | Respondent |
Parties | Alaa Shehata | D&N Kirwan |
Representatives | Michael O'Brien International Transport Workers' Federation | Rachel Nolan Nolan & Co Solicitors |
Complaint(s):
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-00053309-001 | 02/06/2022 |
Date of Adjudication Hearing: 20/06/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
This complaint was heard in conjunction with other complaints (see Adj-00041328) which were the subject of three hearings; the first on 18 October 2022, in person; the second on 19 January 2023, remotely pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings; the third on 20 June 2013, in person.
Background:
The Complainant is a non -EEA fisher, crewing an Irish trawler. His employment with the Respondent commenced on 1 January 2020. He was paid €816 gross, fortnightly. |
Preliminary Issue: Correct Respondent
At the outset of the proceedings the Respondent informed the hearing that the employer’s name had been incorrectly entered on the WRC Complaint Form. The correct name being D & N Kirwan Limited, the Limited element of the name had been omitted on the WRC Form. The Respondent did not raise this as a matter of contention rather as a point of information and they were happy to accept that this had been a genuine error and it did not prejudice their case. The Complainant accepted the clarification.
Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that D & N Kirwan Ltd is the correct legal name of the Complainant’s employer.
I must now decide whether the Respondent named on the complaint referral form can be changed to the correct legal name of the Complainant’s employer.
Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:
(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.
(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.
(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.
(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—
( a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and
( b) the said misstatement was due to inadvertence,
then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:
Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.
In making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:
“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”
It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.
I am satisfied that the complaint referral form submitted by the Complainant contained a variation of the name of the company that employed him. I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.
I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared a submission for the hearing, they took full part in the proceedings, and they were represented at the hearing by a barrister.
Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the complaint referral form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.
CA-00053309-001 Complaint under the National Minimum Wage Act,2000.
Summary of Complainant’s Case:
In a very comprehensive written submission, the Complainant’s Representative detailed the type of work undertaken by the Complainant when before, during and after a fishing trip. The work descried is onerous, intensive, and demanding. Not only are the crew required to work extremely hard when fishing they must also take their share of watch keeping duties. The Complainant recalls working average days of around 17 hours and around 20 hours per day when in fishing grounds. The Complainant gave evidence on Affirmation at the hearing. In his evidence the Complainant stated that he had signed the records supplied by the Respondent, but they were not accurate, not right. He said that he signed them because he was asked to do so at the end of each trip, and he did not understand or was not aware of what they were. The Complainant gave evidence of the individual tasks he was required to carry out on the boat before, during and after a trip. In cross examination he stated that he “barely had time to eat.” He also denied that the crew filled out the records. The Complainant’s Representative has calculated the Complainant is owed a total of €2,801.40.
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Summary of Respondent’s Case:
The Respondent submits that the hours worked by the Complainant were recorded accurately and these records demonstrate that the Respondent paid the Complainant the National Minimum Wage at all times. The Respondent denies in the strongest terms that the Complainant was given forms to sign of purported hours of work and rest while at sea, but these were an understatement of the true hours worked. The Respondent, Mr Kirwan gave evidence on Oath at the hearing. Mr Kirwan stated that the records are drafted by the crew member and signed off by the skipper. The records do reflect the hours worked and they looked like typical hours to him. He stated that every trip is different. Most trips are between 9-10 days duration; some are paid every two weeks over an 80-hour period. A Mr Byrne gave evidence on Oath at the hearing for the Respondent. He is a boat’s skipper. Regarding the time sheets, the witness stated that he would fill in the dates and the crew would fill in their own hours worked, he then signs them off. He stated that the records provided to the WRC, were an accurate reflection of the hours worked by the Complainant. He denied he ever put the Complainant under pressure to sign the records. He denied that the crew would ever work 17 hours in a day. In cross examination the witness stated that the records were a true reflection [of the hours worked] but were not 100% accurate.
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Findings and Conclusions:
Section 26 (2) of the 2000 Act (as amended by the Workplace Relations Act 2015) provides for the modes of redress :- “26. (1) A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain— (a) a direction to the employer to pay to the employee— (i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and (ii) reasonable expenses of the employee in connection with the dispute, (b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, both such direction and such requirement, as the adjudication officer considers appropriate.” The hours of work outlined by the Complainant are greatly at odds with the record sheets supplied by the Respondent. The evidence put forward by the Respondent regarding the records, who made them out and their accuracy was somewhat disjointed. I accept the evidence put forward by the Complainant; it seemed to be more credible than that put forward by the Respondent’s witnesses. In such circumstances I find in favour of the Complainant’s case, and I uphold the complaint. I accept the calculations put forward by the Complaint’s Representative and I find the Complainant is owed €2,801.40. It should be noted that the Complainant sought, through his representative, a statement from the Respondent of his rate of pay. The Respondent did not respond to this request within four weeks enabling the initiation of this complaint.
I find the Complainant’s claim pursuant to the National Minimum Wage Act 2000 for underpayment to be well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
In respect of this complaint pursuant to the National Minimum Wage Act, I direct that the Respondent pay the Complainant an award of arrears of €2,801.40. |
Dated: 11th October 2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Records, hours worked. |