ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028078

Parties:

	Complainant	Respondent
Parties	Hussein Mahmoud	Barry Kirwan

	Complainant	Respondent
Anonymised Parties

Representatives

Michael O'Brien International Transport Workers Federation

Ruairí Ó Catháin Conways Solicitors

Complaint(s):

Act	Complaint/Dispute 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-00035951-001	30/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035951-002	30/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035951-003	30/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035951-004	30/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035951-005	30/04/2020

Date of Adjudication Hearing: 21/07/2022 and 29/09/2022

Workplace Relations Commission Adjudication Officer: Patricia Owens

Procedure:

On 30 April 2020 the Complainant referred 5 complaints to the Workplace Relations Commission as follows:

CA-00035951-001 Complaint pursuant to section 27 of the Organisation of Working Time Act, 1997 alleging that he was required to work more than the maximum permitted number of hours

CA-00035951-002 Complaint pursuant to Complaint pursuant to section 27 of the Organisation of Working Time Act, 1997 alleging that he did not receive his paid holiday/annual leave entitlement

CA-00035951-003 Complaint pursuant to Complaint pursuant to section 27 of the Organisation of Working Time Act, 1997 alleging that he did not receive his public holiday entitlements

CA-00035951-004 Complaint pursuant to section 27 of the Organisation of Working Time Act, 1997 alleging that he worked excessive night hours

CA-00035951-005 Complaint pursuant to section 27 of the Organisation of Working Time Act, 1997 alleging that he was not given compensation for working on a Sunday

In accordance with Section 41of the Workplace Relations Act, 2015, and following referral of the matter to me by the Director General the complaints were scheduled for hearing on 21 July 2022, at which time I gave the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant.

This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designate the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

In deference to the Supreme Court ruling, Zalewski V Ireland and the WRC [2021] IESC 24, the parties were informed in advance that the hearing would normally be in public, 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 giving testimony. The legal perils of committing perjury were explained to all parties.

There were no issues raised regarding confidentiality in the publication of the decision.

Adjournment of Hearing:

The hearing was adjourned due to insufficient time to have all the matters considered and was reconvened on 29 September 2022 as an “in-person” hearing, at which time I gave the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant.

Background:

The Complainant, an Egyptian national, was employed as a Fisherman from 1 January 2017 until 3 October 2019. The Complainant maintained that he initially worked for the respondent on the basis of a “share of catch” arrangement, and that from January 2017 onwards he worked on a succession of yearly renewable Atypical Work Permit contract up to October 2019.

The Complainant maintained that he was required to work excessive hours at night, that he was not afforded his entitlements to holiday pay or to public holiday and Sunday premia.

The Complainant sought compensation for these matters.

The Respondent denied the allegations.

Summary of Complainant’s Case:

Preliminary Issue:

The Complainant submitted that he was seeking an extension of the time limit to 12 months in accordance with Section 41 (8) of the Workplace Relations Act and submitted that such extensions had been granted in other similar migrant fisher cases.

The Complainant opened the cases of ADJ-00012683, ADJ-00018491 and ADJ-00018480 where it was acknowledged that the complainants had a limited command of English, limited understanding of how to protect their rights, and where the complainants were innately vulnerable by the very nature of the Atypical Scheme, in circumstances where, not just the employment status but the fisher’s very legal presence in the State was contingent on the yearly renewable contract with the vessel owner.

The Complainant submitted that in the instant case this very vulnerability was highlighted by the fact that he gave a statement regarding his working conditions to a WRC Inspector but on further reflection declined to sign the statement because, to have done so would have precipitated the ending of his employment relationship and imperilled his legal status in the State. He submitted that his status in the State remained unresolved since his employment relationship with the respondent ended.

Representations made at hearing

The Complainant representative noted that the Complainant’s employment ended on 3 October 2019 and that he submitted his complaints to the WRC on 30 April 2020. He acknowledged that the complaints had been submitted outside of the 6-month time limits required by the Act but he confirmed the request, as outlined in the Complainants submission, seeking an extension of that time limit. He stated that due to the peripheral nature of the complaint the Complainant was not in possession of the information required to take his complaint. In addition, he stated that the Complainant was making efforts to get his job back and that he was vulnerable in making complaints in that context. He outlined that while the Complainant had some English, his knowledge of the language was limited, that he had struggled when dealing with various authorities, had had to rely on “google translate” to assist him in his endeavours. Furthermore, the Complainant Representative stated that it was often the case that it was only when a Complainant ended the working relationship that they felt able to take a complaint against their employer and that in the instant case the Complainant held off until it was clear to him that his job was gone. He stated that the Complainant believed that he would have scuppered any chance of re-engagement if he made the complaint and that it needed to be borne in mind that the Complainants status in the state was contingent on that employer/employee relationship.

Substantive Issues

General Background

In his submission the Complainant outlined the context and background to his complaint and advise that the Atypical Work Permit Scheme for Non-EEA Fishers was introduced by the Government in February 2016 to fulfil two objectives:

· To provide an opportunity to owners of vessels eligible for the scheme to regularise the status of their Non-EEA crew

· To provide a pathway for vessel owners to legally employ Non-EEA crew

The Complainant submitted that at the time of compiling his submission the Government was deliberating recommendations of an interdepartmental group of senior officials who were tasked with reviewing the operation of the scheme in light of persistent reports of non-compliance in the sector as evidenced by publicly available research by the Migrants Rights Centre of Ireland (2017), the Law Department of Maynooth University (2021) as well as 11 rulings by the WRC/Labour Court in favour of migrant fishers employed under the scheme, together with hundreds of findings against vessel owners by the WRC Inspectorate as catalogued in annual reports and parliamentary question responses.

The Complainant outlined that the minimum conditions of employment for the Atypical Scheme are set out in a standard contact and appended a copy of that contract to his submission. The Complainant noted that Section 6 of the standard contract provides that:

· “The employee will be paid for every hour worked at an hourly rate not less that 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 €18556, subject to the employer being entitled to deduct for full board and lodging in accordance with the National Minimum Wage Act (currently, maximum deduction of €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:

o A paid day off on that day

o A paid day off within a month

o An additional day of annual leave”

The Complainant further outlined that Section 7 of the contract provides that:

“The Employer commits to maintaining records of the employee’s hours of work of rest and annual leave in accordance with the European Communities (Workers on board Sea-Going Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709/2003) and the Organisation of Working Time Act 1997.

A record of 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 submitted that he arrived in Ireland in 2012 and initially worked as an undocumented fisher on the basis of a “share of the catch” arrangement. This arrangement involved a sharing, between the vessel owner and crew, an agreed percentage of what the catch realised on the market minus overheads associated with the trip.

The Complainant submitted that he was enrolled by the employer into the Atypical Work Permit Scheme in 2016 during its initial “amnesty phase when vessel owners were facilitated to regularise their pre-existing undocumented crew. He submitted that his enrolment in the scheme heralded a deterioration in his pay because of the employer’s particular interpretation of the scheme whereby he was typically paid on the notional basis that he worked a 39-hour week rather than the reality which was far in excess of that. He submitted that he continued to work for the vessel owner with a succession of yearly renewable Atypical Work Permit contracts in 2017 and 2018 before ceasing to work for the Respondent after the last voyage in October 2019.

CA-00035951-001 Excessive Hours & CA-00035951-004 Excessive Hours at Night

In his complaint form, the Complainant alleged that he was required to work more than the maximum permitted number of hours.

In his submission the Complainant noted 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 he acknowledged was the appropriate law under which this complaint ought to be heard. The Complainant noted the recent Labour Court ruling of Ahmed Elganagy v Galley Trawlers (ADJ-00009467), which was since appealed to the High Court, where it was confirmed that the WRC and the Labour Court do not have jurisdiction to hear complaints under this Directive.

The Complainant submitted that he anticipated that the WRC would not rule on these complaints but that he wished to make a number of points in connection with these complaints for the record.

The Complainant submitted that it was his recollection that such was the intensity of the on-board work regime and the length of the average working day that his daily and weekly hours of work and rest as well as breaks did not meet the standard required under the Working Time at Sea Directive. He submitted that the employer failed to provide him with copies of forms which purported to record the hours of work and rest that the employer was obliged by law and by the standard Atypical contract and he pointed out that this had a bearing on the measures he and his representative had to take to substantiate his complaints, not just in relation to this complaint but also to his complaints regarding holiday pay and public holidays.

The Complainant submitted that it was his recollection that these forms contained a false account of the hours worked that would ostensibly be within the terms of the Working Time at Sea Directive and bear some relation to the wages paid.

CA-00035951-002

The Complainant submitted that it was his recollection that he was not paid holiday pay, certainly not commensurate with the hours he actually worked for the respondent, as distinct from the hours recorded on the few payslips he had in his possession, and he recalled he was coerced into signing off on the forms recording hours of work and hours of rest.

He submitted that in order to reconstruct his true hours of work SIPTU had the ITF consult the publicly available Automatic Identification System (AIS) which is the satellite system that records the movement of vessels. Vessel owners are required to have AIS on their boats under Statutory Instrument No 640 of 2007, Merchant Shipping (Safety of Fishing Vessels) (15 to 24 metres) Regulations 2007 section 10 paragraphs (6) and (7).

The Complainant appended an Excel Spreadsheet to his submission he confirmed that he confined the details included in that document to trips made in the course of 2019. The port of departure, date and times of departures and date and trip of return as per the AIS are recorded in the document. Based on this information the Complainant submitted that he was able to obtain the number of days at sea and that by multiplying this figure by 24 it was possible to obtain the number of hours at sea for each trip. He further submitted that by dividing the total hours worked by 24 and multiply by 17 to correspond with the average 17 hours worked per day recalled by him when he was at sea.

The Complainant outlined that under the heading ‘Hours Average Pier Work’ he allowed for an average 12 hours work on the pier before and after each trip, thus providing a “Total Hours Worked’ for each trip.

He Complainant submitted that by multiplying the “Total Hours Worked” by the 2019 minimum wage rate of €9.80 to give a total of what the Complainant should have been paid, it was clear that the Complainant ought to have been paid on the basis of the promise in the contract to pay for ‘every hour worked’. The Complainant’s Representative submitted that from their perspective there was a case for the calculations of the entire underpayment to be made on the basis of the current minimum wage rate to take into consideration the impact of inflation but noted that it is the custom of the WRC to make its awards based on the minimum wage of the day.

The Complainant submitted that he had excluded from the calculations, trips of the Le Dolmen between 6th March and 14th April when the Complainant was on vacation.

The Complainant confirmed his total earnings in 2019 recorded in Revenue’s Statement of earnings for that year (which he appended to his submission) are €14,494.70, some €9,600 below what he ought to have earned on the basis of the hours he worked that year.

The Complainant submitted that if the adjudicator was satisfied that the totality of payments made to the complainant did not meet the minimum wage rate, it follows that holiday pay likewise was not covered by the same totality regardless of what may have been recorded on the pay slips or other records held by the vessel owner and therefore that 8% of the pay the Complainant ought to have received for the work he performed during the cognisable period was due to him alongside any compensation payment the adjudicator sees fit.

Elaboration of on-board work regime to substantiate claim

The Complainant submitted that the work regime on the Le Dolmen was described by him as follows:

· That from the moment the vessel left port he and his non-European migrant fisher crewmates were at the disposal of the skipper.

· That the vessel first steamed to the fishing grounds.

· That the steaming time varied depending on the port of the departure and the particular fishing ground destination but during this time the Complainant had to perform his share of watch keeping.

· That once at the fishing grounds the first net was shot and dragged for approximately four hours to six hours and that prawns were the principal target species.

· That once the first net was hauled the work on board thereafter was ceaseless, with the processing of the first haul taking place while the second net was shot and so on with up to four shots of the net per day.

To elaborate on the labour intensity of the processing part of the exercise the Complainant submitted that each individual prawn had to be manually tailed, cleaned, graded, iced and boxed, and the decks needed to be clear in time for the following haul. In addition, the dragging of the nets along the sea bed gave rise to routine damage to the nets which then needed to be repaired on the job so that the process of fishing would go on uninterrupted in the grounds.

The Complainant submitted that the intensity of the work regime experienced by him was exacerbated by the under-crewing of the vessel and he further submitted that the Labour Court and WRC has accepted testimony by fishers of being forced to work average days of 17 hours in two recent cases DWT2224 and ADJ-00026812

CA-00035951-003 Public Holidays & CA-00035951-005 Sunday Premia

The Complainant submitted that an examination of the AIS data on the movements of the Le Dolmen in 2019 revealed that the vessel was at sea on a number of Sundays. The Complainant submitted that he had no recollection of being paid premia for Sunday work

Similarly, the Complainant submitted that he was at sea on the August Bank Holiday, July Bank Holiday and he recalled that he was not paid for these public holidays nor did he have his entitlement restored.

The Complainant submitted that even if the respondent were to lay some claim to particular payments representing Sunday premia or pay for public holidays, regard would have to be made of the argument made in the claim for holiday pay. He further submitted that if the adjudicator was satisfied that the totality of payments made to the complainant did not meet the minimum wage rate in the course of 2019 it followed that Sunday premia and public holiday pay were likewise was not covered by the same totality.

Summary of Respondent’s Case:

Preliminary Issue

At the outset of the hearing the Respondent advised that the complaints were out of time. Without prejudice to the denial of the allegations the respondent submitted that the complaints were made to the WRC on 30 April 2020 and that all complaints related to allegations which the Complainant contended occurred prior to the termination of his employment on 3 October 2019. The Respondent pointed to the time limit of 6 months provided for under the Act and to the relevant cognitive period arising.

Representation made at hearing

The Respondent Representative outlined that it was not appropriate to grant an extension of the time limit in the instant circumstances and stated that the complaint was clearly out of time. He outlined that the Complainant’s employment ended on 3 October 2019, that he had issues relating to his visa and his passport that were unconnected with the employer and that the Complainant had communicated after his departure where he indicated that he was trying to get his job back but that this was not possible.

The Respondent Representative did not accept that the Complainant had a limited knowledge of English and confirmed that the Complainant had been in Ireland since 2012 and had worked with the Respondent for 6 years. The Respondent Representative pointed to communication between the Complainant and the Respondent, which took the form of verbal communication, as well as text and WhatsApp. He stated that the Complainant had interacted with relevant departments in relation to passport/visas and had participated in WRC Inspections, but had never raised a concern that he was unable to understand the discourse involved.

The Respondent Representative pointed to the fact that the contract (yearly) was determined by the state and acknowledged that this was not ideal for either party. He stated that based on the foregoing there was no justifiable reason for the delay in submitting his complaints, that the delays relating to the Complainant’s passport was not an issue for which the Respondent could be held accountable.

Substantive Issues

General Information

The Respondent submitted that the Complainant worked for him for a number of years pre 2016 when the Atypical Working Scheme was introduced for non-EEA nationals working in the Irish fishing industry. He continued to work uninterrupted until October 2019.

Atypical Working Scheme

The Respondent submitted that

· The Atypical Working Scheme Letter of Approval (work permit) is issued to the employee and not the employer.

· The employee engages a solicitor to make the application on his behalf. O

o (The solicitor was paid by the employer)

Contract of Employment.

In relation to the contract of employment the Respondent submitted that

· The employee must demonstrate that he has a contract of employment in order to apply for the work permit

· He and the Complainant signed the contract of employment. In 2019 this was a renewal.

· The signed contract is sent by the solicitor to the Irish National Seafood Centre in Clonakilty to confirm it meets the requirements of the scheme.

· The contract is kept by them and referenced for the next stage of the application.

INIS, Irish Naturalisation and Immigration Service

In relation to the above the Respondent submitted that

· The work permit application is made by the solicitor on behalf of the employee to INIS.

· In addition to the contract of employment there are other supporting documents provided by the employee such as residence permit and passport.

· (The INIS Application fee was paid in advance by the employer. It was non-returnable)

· INIS refused the application because of an issue with the Complainant’s passport.

· INIS had moved the goalposts regarding passport requirements

· The new requirement was that the passport presented for the work permit application had to be valid for the entire duration of the new work permit.

· The Complainant’s passport did not meet this criterion and the application was refused and consequently the Complainant was unable to Work

· In these circumstances the Respondent could no longer employ him as by doing so would put his business in jeopardy

Passport Application

In relation to the Complainant’s application for a new passport, the Respondent outlined the following:

· That the Complainant advised the Respondent that he had made an application for a new passport in October 2019 to the Egyptian Embassy in Dublin

· That the Dublin Embassy passed the application to Cairo; however, the Complainant advised that it was not possible to track progress online

· That the Complainant advised the Respondent that there was still no word at Christmas 2019 regarding the new passport

The Respondent submitted that he learned later that the information outlined above and given to him by the Complainant was false and he outlined his understanding of what actually occurred:

· That the Complainant did not submit his application for a new passport until 18th Feb 2020 Egyptian Military Service

· That the following message was received by Des Kirwan from the Complainant on 20th February 2020 “I am fine thank you. I cannot renew my passport in Egyptian Embassy because I had renewed my passport for the period from 16/09/2015 till 02/02/2020 as a maximum validity in my case, and this is because I will reach 29 years old on the above date without fulfilling the Egyptian military service required or being exempt from it. Now that I have been 29 years old, I am allowed to renew my passport and applied for the passport renewal last Tuesday”

· That the Complainant received his new passport on 10th March 2020

The Respondent submitted that the Complainant could not apply for a work permit renewal as his old work permit had expired and that he would have to leave Ireland and return to Egypt to apply for a new work permit. The Respondent noted that applications for work permits under the scheme rules must be applied for from outside the country. The Respondent estimated the lead time for such a process to approximately 7 months.

The Respondent submitted that he advised the Complainant that he was not in a position to offer him another contract and he submitted that this decision was based on the following circumstances:

· Replacement Crew

o INIS refusal to renew the Complainant’s work permit was devasting for him

o The decision was also devastating for the Respondent as he needed to find replacement Irish crew at short notice to go to sea.

o The short-term replacement crew member is now a permanent long term crew

· Lead Time

o The Complainant was already out of the Crew since October 2019

o It was now mid-March 2020; a full 5 months had elapsed.

o The lead time for the Complainant’s return with a work permit was another 7 months. This was a conservative estimate, with a return date towards end year 2020

o The Complainant would need to leave Ireland and return to Egypt while a work permit and subsequent visa was being processed

· Covid

o Covid had arrived in the country.

o The first lock down was to commence from 15th March 2020 at 6pm when pubs and restaurants shut. Other businesses followed in quick succession.

· Brexit

o Brexit was due to commence at the end of the year.

o Talks, even at this stage were about fishing rights.

The Respondent submitted that he was disappointed to receive the notice of complaint as the Complainant had worked with him for a number of years and more recently under the AWS introduced in 2016. He submitted that he offered the Complainant a Contract in 2017 and his work permit was granted by INIS. He submitted that he again offered the Complainant a Contract in 2018 and his work permit was granted by INIS. He further submitted that he again offered the Complainant a Contract in 2019 and his work permit was refused by INIS.

The Respondent submitted that INIS refused his work permit because of an issue with his passport, and noted that the passport did not have validity for the duration of the 2019 contract. It was as a result of the above, the Respondent submitted that the Complainant could not work for him because he did not have the correct paperwork and in such circumstances, he was precluded from employing the Complainant.

CA-00035951-001

The Respondent noted that the Complainant’s complaint stated that “I am required to work more than the maximum permitted number of hours.” The Respondent submitted that the Complainant worked during 2019 until 3rd October 2019 and that his application for renewal of his work permit under the Atypical Working Scheme was refused by INIS due to an issue with his passport. The Respondent submitted that as a result, he was no longer available for employment by the Respondent.

The Respondent submitted that the fishing industry is highly regulated and he submitted that when his vessel goes to sea it is typically for a 3-day trip as the vessel is a ‘fresh’ boat. The vessel does not have a freezer capacity on board resulting in the need to land regularly. He submitted that he was most often based out of Howth and fishing was predominantly in the Irish Sea.

The respondent submitted that hours of work records were and continue to be maintained on the vessel for inspection at all times and that those records are drawn up in accordance with the European Communities (Workers on board sea going fishing vessels) (Organisation of Working Time) Regulations 2003. He submitted that they are signed by the Skipper and the Fisherman as required and that they are kept on board and are available for all to see. he further submitted that these documents are looked for on every inspection referred to in his submission.

In his submission the Respondent outlined that WRC Random Inspections take place randomly at ports, that the vessel is boarded and records checked and he confirmed that these records always include work hours, contracts, work permits, residency permits etc. Inhis submission he outlined that employees are independently interviewed by WRC Inspectors.

The respondent submitted that WRC Planned Inspections also take place annually (pre Covid) and that this process involves a deep inspection of all records. The Respondent submitted that all his records have been subject to WRC Compliance Inspections since 2017 and that this was a matter of record in the WRC. He confirmed that 2019 was no exception.

The respondent submitted that there is no industry inspected more than the fishing industry and, in particular that there is no industry that has been inspected more by the WRC than the fishing industry. He advised that employees are independently interviewed by WRC inspectors and that employers are not allowed to be in attendance during those interviews.

The Respondent submitted that the last inspection of his vessel by the WRC took place in Nov / Dec 2019 and he provided details of the Inspection undertaken by WRC at that time. The Respondent drew attention to the fact that there were no contraventions following the inspection.

The Respondent submitted that in addition to WRC inspections, inspections are also carried out by the Marine Survey Office (MSO) and he submitted that these are random inspections carried out at ports. He outlined that the MSO have specific responsibility for compliance regarding rest hours for workers on board sea going fishing vessels and he advised that log books issued 6-monthly are completed and returned to the MSO. The Respondent submitted that further oversight of fising vessels is undertaken by the Irish Naval Service and that the Navy randomly boards vessels while at sea. He submitted that work record sheets are always on their agenda among many other inspections.

Finally, the Respondent submitted that SFPA inspections are also carried out. He submitted that these inspections take place randomly at ports and that he is also required to advise electronically on a daily basis the following:

· Departure of Vessel from Port (Name)

· Where the vessel is fishing

· Type of nets being used

· Amount of Catch

· Amount of Discards

· End of Fishing

· Return to Port (name)

· Catch Landing details

He submitted that he believed that the records that he had kept, their acceptance by staff, their availability to staff and the authorities, the fact they had been inspected on numerous occasions both on shore and at sea, on a random and arranged basis, that the Complainant was independently interviewed by authorities, all without contravention would indicate that the Complainant was not required to work more than the maximum permitted number of hours.

CA-00035951 – 002

The Respondent noted that the Complainant’s complaint stated that “I did not receive my paid holidays / annual leave entitlement”

The Respondent submitted that the Complainant worked during 2019 until 3rd October 2019 and that his application for renewal of his work permit under the Atypical Working Scheme was refused by INIS due to an issue with his passport. The Respondent submitted that as a result, he was no longer available for employment by the Respondent. Based on the time worked in 2019 the Respondent submitted that the Complainant’s paid holiday entitlement for 2019 was therefore 3 weeks’ pay (one week being 39 hours equivalent)

The Respondent drew attention to the following payslips which were appended to his submission:

Week 12 - The Complainant was in Egypt and 39 hours holidays paid as per payslip detail

Week 13 - The Complainant was in Egypt and 31 hours holidays paid as per payslip detail

Week 14 - The Complainant was in Egypt and 39 hours holidays paid as per payslip detail

Week 45 - The Complainant was in Ireland and 8 hours holidays paid as per payslip detail

The Respondent noted that each of these payslips clearly referred to a holiday payment and he noted that payroll was 1 week in arrears. He further noted that the work date and the payroll date were clearly marked on the payslips. The Respondent submitted that the documentation clearly demonstrated that the Complainant was paid his holiday / annual leave entitlement

CA-00035951 – 003

The Respondent noted that the Complainant’s complaint stated “I did not receive my public holiday entitlements.” The Respondent submitted that the Complainant worked during 2019 until 3rd October 2019 and that his application for renewal of his work permit under the Atypical Working Scheme was refused by INIS due to an issue with his passport. The Respondent further submitted that as a result, he was no longer available for employment by the Respondent.

The Respondent provided payslips and referred to them in relation to payment for public holiday entitlements:

Week 1- Christmas Day and St. Stephen’s Day 2018

Week 2 - New Year’s Day 2019

Week 13 - St Patrick’s Day • Week 17 Easter Monday (paid early in error)

Week 20 - May Bank Holiday

Week 24 - June Bank Holiday

Week 33 - August Bank Holiday

Week 45 - October Bank Holiday

The Respondent noted that each of these payslips clearly referred to a Public Holiday payment. Payslips are attached. Payroll is 1 week in arrears. He further noted that the work date and the payroll date were clearly marked on the payslips. The Respondent submitted that the documentation clearly demonstrated that the Complainant was paid his public holiday entitlement.

CA-00035951 – 004

The Respondent noted that the Complainant’s complaint stated “I work excessive night hours” The Respondent submitted that the Complainant worked during 2019 until 3rd October 2019 and that his application for renewal of his work permit under the Atypical Working Scheme was refused by INIS due to an issue with his passport. The Respondent submitted that, as a result, he was no longer available for employment by the Respondent.

The Respondent submitted that the standard contract of employment (the contract operating between him and the Complainant) does not have a stipulation regarding night hours and he submitted that workers on board sea going fishing vessels rest sheet does not have a stipulation regarding which hours in the day you work or don’t work / rest or don’t rest. The Respondent submitted that the time sheet covers a 24-hour day.

The Respondent further submitted that the Complainant had signed his work hours sheets and that he had been inspected by many regulatory bodies including the WRC. In his submission the Respondent outlined that, as a general rule fishing takes place during the day rather than at night and that there are a number of reasons for this, primarily;

· That it is not possible for the Respondent to work 24/7

· That he controls the vessel.

· That fishing at night is less profitable for his vessel

He submitted that the above demonstrates that while late evening work is not unusual, the hours worked are within the regulations for the fishing industry.

CA-00035951 – 005

The Respondent noted that the Complainant’s complaint stated “I am not given compensation for working on a Sunday”.

The Respondent submitted that fishing is not an easy lifestyle, that it is a way of life rather than a job, that it is not determined by the day of the week but is determined by the wind and the tides, together with quota and all the other obstacles faced by any business except from a moving platform. The Respondent submitted that his preference was not to be at sea on a Sunday as it gives a sense of normality to family life. However, he submitted preference is not the primary decider as mentioned above.

The Respondent submitted that an analysis of Sunday fishing during the nine months of 2019 indicated there were 14 occasions when the Complainant was working on a Sunday and that there was a total of 77 hours involved.

In his submission the Respondent acknowledged that it was true that there was not an hourly rate for Sunday working listed on the payslips but that other compensations were considered by the WRC during inspections. He submitted that these included board & lodging. He further submitted that while the contract allowed for the deduction of board and lodging, this had never been invoked. He submitted that the contract provided for a daily rate of €7.73 subject to a maximum of €54.13 per week, a considerable amount over the course of 9 months. He noted that the standard hourly rate was struck at 10c per hour above the minimum requirement and that while this was small, the Complainant got paid the equivalent of 1,444 hours in 2019.

The Respondent also submitted that a solicitor represented the Complainant in his application for a work permit and noted that the work permit was issued to the employee and not the employer. The solicitor fee (renewal cost approx. €500 plus vat) was paid by the employer, INIS issued the work permit in the name of the employee, not the employer (cost of €250) was paid by the employer, following the issue of the work permit, An Gardai issued an Irish Residence Permit to the employee (cost €300) was paid by the employer.

The Respondent submitted that while the Complainant was not paid a Sunday premium, he was amply compensated in other ways and he submitted that this was taken into account during WRC Inspections.

Findings and Conclusions:

Preliminary Issue

I have considered carefully the submissions made by both parties on the questions of an extension of time limits, together with the representations made at hearing and the case law opened on the matter.

I noted that both parties accept that the complaints are outside of the 6-month time limit set down in the Act and that therefore the question which falls to be decided is whether or not to grant an extension of that time limit as requested by the Complainant.

I noted the Complainant position that he was vulnerable to not being re-engaged by the Respondent were he to progress such a complaint and that his status in the state would consequently be negatively impacted. I noted his position that he had limited English and this prevented his full understanding of relevant processes and that he was not in possession of all the information to make out his case

I also noted the Respondent position that the Complainant had a reasonable command of English, having worked in Ireland since 2012 and I noted the Respondent view that the Complainant was able to engage with various organisations and departments without any difficulty.

The Law

The concept of what is “reasonable cause” was tested by the Labour Court in the case of Cementation Shanska V Carroll, DWT 38/2003 where the Court stated “it is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Based on the above I understand there to be a two-stage test in determining “reasonable cause”; firstly, the reason for the delay must not be arbitrary but must have a causal link to the delay. In other words, there must be a practical connection between the reason given and the delay in submitting the complaint.

In the instant case the Complainant cited 3 reasons for the delay:

· Not in possession of all the information to take his complaint

· Limited knowledge of English

· Vulnerability in relation to the possibility of not being re-engaged by the Respondent

I noted that the Complainant gave evidence under oath that he did not know or understand his rights until he made contact with SIPTU, that he was in fear that the Respondent would cease his employment while he was dealing with the visa problem and that he did not have sufficient English to know how to complete the WRC form. He indicated that he had sought the assistance of his sister-in-law.

I examined the copies of text messages between the Complainant and the Respondent between 30 October 2019 and 10 March 2020 and I noted the following the following sequence of events:

3 October 2019 The existing contract came to an end

30 October 2019 The Complainant queried why the Respondent had gone fishing without him, the Respondent replied that he still wanted the Complainant to work for him but that he required him to sort the issue with the passport before he could issue him with a new contract.

30 October 2019 The Complainant emailed again to say that he had made an application to the embassy for his passport but that it would take some time because the papers had to be sent to Egypt. He went on to outline that he wanted to now work for the Respondent as he had responsibilities in Ireland and in Egypt.

30 October 2019 The Respondent acknowledged the situation, stated that he understood but made it clear that the Complainant could not work without the appropriate papers. The Respondent offered any help he could.

24 December 2019 The parties exchanged Christmas greetings

20 February 2020 The Complainant advised the Respondent that he could not renew his passport in the embassy because he had previously renewed his passport from 16 September 2015 to 2 February 2020 and that he could not renew for a longer period as he would reach age 29 on that date without fulfilling the Egyptian military service required of him or being exempted from it. He outlined that having now reached age 29 he was allowed to renew his passport and had applied for the new passport the previous Tuesday (the previous Tuesday being 18 February 2020).

10 March 2020 The Complainant advised the Respondent that he had received his new passport and asked if the Respondent was able to renew his contract?

10 March 2020 The Respondent advised the Complainant that he now had a full crew and that he had assumed that the Complainant was finished working with him as he hadn’t heard from him for 6 months and because the Complainant had removed all his “gear” from the vessel at Christmas without telling him.

10 March 2020 The Complainant responded that he had told the Respondent that he wanted to work with him but that the Respondent wouldn’t allow him to do so without the correct papers. He noted that he had worked for the Respondent for 6 years and he stated “I will behave, but don’t be worried about what will happen”.

The Complainant has requested that I accept that reasonable cause has been shown for the purpose of extending the period for submission of this complaint from 6 months to 12 months. It was submitted that I am entitled, by virtue of Section 41 of the Workplace Relations act 2015 to extend that time and consider the complaints to be in time if reasonable cause is shown. In the circumstances outlined by the Complainant it was submitted by the Complainant that in the instant case the reasonable cause was that the Complainant was a non-Irish worker, whose status was uncertain and who had a limited command of English and therefore a limited understanding of how to protect his own rights and entitlements.

I noted that the Complainant did not make an application for his passport for a period of 4 months after his contract with the Respondent expired and after he had been refused a work permit. Based on the evidence given at hearing and the content of emails exchanged between him at the Respondent, it is evident that this was due entirely to the fact that he had not completed his national service nor received an exemption. It was also clear from the evidence provided that it was on 10 March 2020, after he had advised the Respondent that he had received a new passport that he learned that the Respondent was no longer in a position to re-employ him. During that 4-month period it is evident that he did not make any contact with the Respondent other than an exchange of Christmas greetings. On that basis I consider that the delay in making his complaint was not due to concern about his re-employment but was due to him being delayed in seeking a passport and work permit to enable him to continue in employment.

I considered carefully the question as to whether or not the Complainant’s command of English hampered his ability to complete the complaints process. At hearing the Complainant confirmed that he had sought the assistance of a family member in completing the form. I noted that on his complaint form he had confirmed that he did not require assistance during the hearing and in that context, no interpreter was provided. There was no evidence at hearing that the Complainant was at a disadvantage because of this, he answered a number of questions clearly in relation to his working hours and his activities while on the boat and on shore. Taking the above into account I am not convinced that the Complainant’s use of English prevented him from making his complaint.

While I accept that the Complainant may not have been fully aware of his rights before he engaged with his trade union representative, I can find no explanation as to why there was a delay in seeking this advice. In all these circumstances, I do not consider that there is reasonable cause to grant an extension of the time limit for submission of these complaints.

CA-00035951-001