Complainant

Respondent

Parties

Mohamed  Shokr Ghonim

Richard Branagan

Representatives

International Transport Workers Federation

 Conways Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00046010-001

06/09/2021

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

CA-00046010-002

06/09/2021

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

CA-00046010-003

06/09/2021

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

CA-00046010-004

06/09/2021

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

CA-00046010-008

06/09/2021

A total of eight complaints under complaint reference CA 46010-001 to 008 inclusive were made originally and submitted on September 6th, 2021. Three of the complaints, CA-00046010-005,0066 and 007 were withdrawn.

The complainant left the employment of the respondent on July 22nd, 2021, and therefore, as will be seen below, the complainant accepted that CA-00046010-002, 003,and 004 cannot be brought within the time limits even were an extension to twelve months granted.

The complainant made four written submissions in all. This, an edited version of the first of them provides the best outline of the case.

The Atypical Work Permit Scheme for Non-EEA Fishers was introduced in February 2016 to regularise the status of non-EEA crew as an estimated 500 to 1,000 fishers were working in conditions of illegality. Secondly, it provided for vessel owners to legally employ Non-EEA crew .

The government is considering recommendations by an interdepartmental group tasked with reviewing the operation of the Atypical Scheme in light of persistent reports of non-compliances in the sector as well as to date eleven rulings by the WRC or Labour Court in favour of migrant fishers employed under the terms of the Atypical Scheme as well as additional findings against vessel owners by the WRC inspectorate as catalogued in annual reports.

The minimum conditions of employment for the Atypical Scheme are set out in a standard contract, (copy submitted). Section 6 of the standard contract template, taking into account subsequent increases in the statutory minimum wage, provides that an employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay which will be paid weekly in arrears into the employee’s bank account, and  will receive working time records and pay slips according to the manner in which the employee is paid.

Wages will also cover 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). An employee will also have an entitlement to public holidays.

Section 7 covering hours of work provides that:

The Employercommitstomaintaining recordsof the employee’shourof work orrest 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)andtheOrganisationofWorkingTimeAct1997.

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(. 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 began working for the respondent in an undocumented capacity in 2013 as a ‘share’ fisher. This arrangement was a form of self-employment involving the crew and the vessel owner sharing an agreed percentage of the proceeds of what the catch realises on the market minus overheads.

The complainant recalls his typical monthly income during his period as a ‘share’ fisher as being on average €2,500 per month and that his enrolment into the Atypical Work Permit Scheme represented a deterioration in his income despite no fundamental change to his work regime because of his former employer’s particular interpretation of that scheme.

In order to obtain a more complete set of documents in advance of the hearing we wrote to the respondent’s representative on 23rd March 2022 seeking all records pertaining to him under Article 15 of GDPR. We got no reply.

The complainant has an incomplete set of documents (submitted).

CA-00046010-001MinimumWageAct

On 6th August 2021, on the advice of his ITF representative, The complainant  sought from his former employer a statement on the rate of pay purportedly paid to him during sea-going voyages (see WhatsApp message page 1 of appendix). The failure of the respondent to respond to this request within four weeks enabled The complainant  to make a complaint under the Minimum Wage Act.

Given that The complainant ’s contracts promised to pay at the minimum wage rate his representatives believe that this Act will better serve his complaint than the Payment of Wages Act which tend to be the Act under which pay related complaints are made to the WRC.

AnadditionalimportantreasonforcitingtheMinimumWageActinthiscaseis thelengthof timeduringwhichthe complainant last paid bytherespondent  (September 2020) andthatweareawareof four pastrulings wherethe cognisable periodthat typicallyapplies forcomplaints made to theWRCunderotherActsdoesnotapplytocomplaintsmadeundertheMinimumWageAct wherefullrecoveryofunpaidwagesfor thewholeperiodofemploymentspanningyearswas awards.Thesecasesare Ryder V Meenagh , KarskivASCars  and  DzumbiravMemoryNyazika

The ITF made successful FOI Requests to the Department of Defence for the start and end of voyages on the Fishing Vessel Nausicaa spanning the period Mr. Elagamy and crewmates who have similar complaints before the WRC (Excel spreadsheet supplied). These movements are recorded by the Naval Service’s Fisheries Monitoring Centre (FMC). The FMC’s Vessel Monitoring System (VMS) is a tamper proof system works on the basis of a check-in approximately every two hours on vessel location.

The necessity for relying on this VMS data set became apparent as the non-tamper proof publicly available Automatic Identification System (AIS) was missing voyages presumably because the AIS was switched off on occasions contrary to 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 dates of port departures and arrivals of the Fishing Vessel Nausicaa were provided to the ITF in an Excel spreadsheet format by the Department of Defence which we include among our submissions. Each year from 2016 to 2021 inclusive has its own tab at the bottom.

We take as our starting point June 2016 by which time the Respondent ought to have enrolled the complainant  into the Atypical Scheme. The end point in August 2020 is The complainant ’s last voyage after which he did not partake in voyages because an injury to his back

The complainant  identified those trips that he missed because he was on vacation in Egypt or some other reason and are excluded from our calculations for the purposes of what he ought to have been paid under the terms of the Minimum Wage Act. We arrive at our minimum wage shortfall figure of €61,649.96  thus. We have submitted the appropriate total allowing for a midday average of departures and arrivals and a half day average for trips of a day or less.

Regarding  ‘Pier Work Days’ we make an allowance for the work performed by the complainant  on the pier before and after the sea going voyages. On the basis of his recollection we allow for one additional average working day per trip. We add these ‘Pier Work Days’ to the ‘Days at Sea’ to calculate ‘Total Days Worked’.

In ‘Total Hours Worked’ we multiply the ‘Total Days Worked’ by an estimated average of 17 hours worked per day. We will elaborate on the work regime to substantiate this estimated average further on but for now continue with the calculations.

Regarding ‘Wages Due at Minimum Wage Rates’ we multiply the ‘Total Hours Worked’ in column ‘E’ by the appropriate minimum wage rate of the year in question. There is 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 we note that it is the custom of the WRC to make its awards based on the minimum wage of the day.

Regarding ‘Gross Wages Received’ we base our figures from 2016 to 2020 on the Revenue Commissioners ‘Statement of Earnings’ which are submitted. In 2021 we take our figure from the ‘Year to Date’ figure quoted in the final pay slip combined with a payment of €4,356 made by the respondent to Mr. Elagamy after he left his employment.

Regarding ‘Shortfall’ on the basis of the calculations set out and submitted the total for the whole period of employment of €65,326.31.

The work regime on the Nausicaa is described by the complainant as follows. From the moment the vessel leaves port he and his crewmates were at the disposal of the skipper. The steaming time to the fishing grounds can vary 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.

Once at the fishing grounds the first net is ‘shot’ and dragged for approximately four hours to six hours. Prawns were the principal target species. Once the first net is hauled the work on board thereafter is ceaseless with the processing of the first haul taking place while the second net is shot and so on with up to three of four shots of the net per day.

To elaborate on the labour intensity of the processing part of the exercise each individual prawn has to be manually tailed, cleaned, graded, iced, and boxed. The decks would need to be clear in time for the following haul. The dragging of the nets along the sea bed gives rise to routine damage to the nets which would need to be repaired on the job so that the process of fishing would go on uninterrupted in the grounds. Some photographs taken by the complainant while he was on the Nausicaa have been submitted to give a sense of work.

The intensity of the work regime experienced Elagamy was exacerbated by the under- crewing of the vessel. 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-00046010-002 Sunday Premia,CA-00046010-003 Holiday Pay, CA-00046010-004 Public Holidays

It is acknowledged by the complainant that even an extension of the cognisable period to 12 months will not yield any compensation for these three complaints however they will set out for the record. A cursory examination of the Navy VMS data on the movements of the Nausicaa reveals frequently that the vessel was at sea on Sundays. A corresponding check of the wage slips does not reveal any particular reference to a premia for Sunday work.

Even if the respondent were to lay some claim to particular payments representing Sunday premia by a different name regard will have to be made of the above complaint under the Minimum Wage Act. If the adjudicator is satisfied that the totality of payments made to the complainant did not meet the minimum wage rate it follows that Sunday premia likewise was not covered by the same totality.

CA-00046010-005 Daily Rest Period CA-00046010-006 Breaks, CA-00046010-007 weekly rest period

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 ought to be heard. We note the recent Labour Court ruling of Ahmed Elganagy v Galley Marine Enterprises ADJ-00009467, since appealed to the High Court, where it was decided that the WRC and Labour Court do not have jurisdiction to hear complaints under this Directive.

Besides the above High Court challenge to this Labour Court ruling the ITF is aware of imminent Judicial Review proceedings linked to another migrant fisher Labour Court case whereby it is hoped that the government will be directed to correct its transposition of this Directive in a manner where the WRC and Labour Court will be able to hear such complaints in the future.

Therefore, we anticipate that the WRC will not rule on these complaints but we will go on to make points in connection with these complaints for the record.

It is the recollection of the complainant  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 works and rest as well as breaks did not meet the standard required under the Working Time at Sea Directive.

Our GDPR request to the respondent for all records he had on the complainant which went unmet ought to have yielded a record of hours of work and hours of rest as cited above in the standard Atypical Contract.

It is The complainant ’s recollection that he was typically given blank forms to pre-sign before the skipper would then insert 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. The complainant ’s crewmate Khaled Elagamy, whose WRC complaint is being heard jointly with the former, managed to take a photograph of a pre-signed blank form while on board which we have included in the appendix of his submission.

CA-00046010-008–TermsandConditionsofEmployment

The case has already been made that the complainant’s pay and conditions of work were at odds with the provisions of the standard atypical work contract.

The complainant is seeking the extension of the time limit to twelve months in accordance with Section 41 (8) of the Workplace Relations Act. Such extensions have been granted in other similar migrant fisher cases such as ADJ-00012683, ADJ – 00018491 and ADJ-00018480.

In these cases it was acknowledged that the complainants had a limited 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.

Evidence of Mohammed Shokir Ghonim

The witness gave his evidence on oath and the interpreter also made the required affirmation.

The witness said that he had come to Ireland in 2014 and began to work with the respondent the following year. In 2016 he got a work visa and before then he had been working as a share fisher.

He stated that a crew was approximately six fishers and sometimes five with the skipper. In relation to the timesheet recording his hours he said that after he was given a contract, they did sign the sheet but that it was always blank.

In response to a question as to whether he was satisfied with the hours that were ultimately recorded he said he was not. When asked why he signed he said he was told that if he did not sign his contract would be ended.

He described the work undertaken in preparation for the voyage which he said included unloading and general preparations for departure. He also said that he could do up to nine hours work before and after being at sea.

He also said that he might spend two to three hours steering the boat during the voyage.

On arrival at the fishing ground there would be four to five shots each day which would take about four to five hours each. They would spend time grading the catch, comprising prawns, separate them into the various categories washed them and then freeze them. This would be done four or five times per day. He also said that he would do night watch keeping of approximately 2 hours.

The witness said they would spend 18 to 19 hours at the fishing grounds.

He  said that he had not been aware of his union rights before been contacted by the ITF but when he did raise his rights with the respondent, he was told that it was in his contract.

Asked whether he ever got a day off in the fishing grounds and he said that he had never got one.

He also said that applied to his co-workers who never got a day off either. Eventually he said he stopped working because of a leg injury and health problems.

The witness was cross examined and confirmed that he commenced in 2015 and previous to that had worked in his native Egypt.

He confirmed that he understood how weather could affect things and said that everyone understands that but he said that they also worked in bad weather although not always.

When asked what happened when the vessel was undergoing maintenance, he said that that did not happen. He was asked what he did when the vessel was not operating and he said they would work with the nets or something else and was paid the same for this work (although it was put to him that this was disputed by the respondent).

The witness was asked whether he worked on route to the fishing grounds and he replied that sometimes he did and that this could include two hours steering the vessel. He said he worked on average nineteen hours and slept only for two to three hours.

Regarding his decision to sign the timesheet he said that he signed it without challenging it because he had to be able to feed his family and he knew that signing it was a contractual obligation.

It was put to him that the respondent was entitled to deduct board and lodgings from his wages but did not do so and the witness said he was not aware of that.

In summarising its position the complainant said that the satellite tracking information was only a starting point and has been admitted in other cases. In any event the VMS system confirms the AIS information, which the respondent described as unreliable and they could not be both wrong.

The complainants were not provided with copies of their hours of work and the request for this detail under GDPR was not responded to.  He also said that the complainant has no recollection of being interviewed by an inspector of the Workplace Relations Commission.

He further says that the refusal to sign the timesheets could have serious consequences and result in a person becoming undocumented. And conclusion he repeated that in respect of the claim under the Terms of employment Information Act the particulars were incorrect, the statutory instrument was not correctly named on the hourly wage not defined.             

The WRC does not have jurisdiction to deal with any matters relating to the Organisation of Working Time Act 1997 (“the 1997 Act”), being CA-00047152-005/006/007/008.

In ADJ-00009467 A Fisherman v A Fishing Company in September 2018 the AO held that he was precluded from making a finding in relation to complaints : related to Intervals at Work Rest Break, Daily Rest Break, and Weekly Rest).

The Adjudication Officer in that case explained his decision in this regard as follows:

“Section 3(2)(a) of the Organisation of Working Time Act exempts a person engaging (sic) in sea fishing from Part II of the Act (Minimum Rest Periods and Other Matters Relating to Working Time), and where (sic) SI 709/2003 sets out how the entitlements under Part II should apply. Regulation 10 of SI 709/2003 requires the Minister for Communications, Marine and Natural Resources to appoint Authorised Officers for the purposes of the Regulations”.

This decision was upheld on appeal by the Labour Court in its decision DWT2222 Galopin Trawlers Limited and Mr. Ahmed Elganagy. The Adjudication Officer was correct to decline jurisdiction in relation to the claims listed above. Sections 11 to 18A of the 1997 Act do not apply to those engaged in sea fishing by virtue of section 3 of the Act set out below unless the Minister provides otherwise by regulation.

The provisions of SI No 709 of 2003 and SI No 672 of 2019, neither of which amends section 3 meaning, that the WRC has no jurisdiction to determine complaints in relation to rest breaks, daily rest breaks, weekly rest breaks and maximum weekly working hours.

In support of submissions before the Labour Court in the Galopin case referenced above, Counsel for that complainant directed the Court to consider the decision of the High Court in Mythen v The Employment Appeals Tribunal & Ors[1990] 1 IR 98 and the decision of the Court of Justice of the European Union in Minister for Justice and Equality, Commissioner of An Garda Síochána v Workplace Relations Commission Case 378/17.

The Labour Court however found that that the decision in Mythen could not be relied on by the Complainant in this case to support his claim that the Workplace Relations Commission, at first instance, and the Labour Court on appeal, as creatures of statute, could assume jurisdiction to provide redress for breaches of the provisions of a statutory instrument in circumstances where neither the Oireachtas (in enacting the 1997 Act) nor the Minister (in promulgating SI No 709 of 2003 or SI No 672 of 2019) made express provision for a redress mechanism in the case of the category of worker to which the Complainant belongs.

In response to the submission referencing the decision of the Court of Justice of the European Union (‘the CJEU’) in Minister for Justice and Equality, Commissioner of An Garda Siochana v Workplace Relations Commission the Labour Court reiterated that it was a creature of statute and could not assume a jurisdiction which has not been conferred on it either in primary legislation (i.e. the 1997 Act) by the Oireachtas or by a Minister delegated by the Oireachtas under the 1997 Act (i.e. in SI No 709 of 2003 or SI No 672 of 2019).

The Galopin case is currently on appeal to the High Court. In those circumstances considering the above and the fact that the determination of that High Court appeal will likely have a material impact on the hearing of this matter, it may be more appropriate to adjourn this matter until the appeal on the point of law has been concluded.

Regarding complaints CA-00046010-001, 002, 003, 004,  the complainant was employed under the Atypical Workers Scheme. He worked the hours set out in the Contract of Employment. Time sheets are available evidencing the rest periods. Sundays worked if any paid holiday received etc.

Complaints  CA-00047152-005/006/007/008 are noy within jurisdiction for the reasons set out above.

Complaints  CA-00047152-004 (public holidays is conceded.)

The Respondent employed the complainant under the Scheme for Employment of Non- EEA Crew in part of the Irish Commercial Sea Fishing Fleet. The terms of the contract of employment as set out in his submissions are correct and are accurately transcribed therein.

It is accepted that the Organisation of Working Time Act, 1997, the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI No 709/2003) and European Union (International Labour Organisation Work in Fishing Convention) (Working Hours) Regulations 2019 (S.I. No. 672/2019) are broadly applicable under the contract of employment.

At all material times the respondent has complied with the terms of employment in the complainant’s contract of employment, and it is denied that there has been a breach of the Contract of Employment. Itisnotacceptedthatthecomplainantdidnotreceiverestbreaks or thathe worked in excess of the permitted hours per day.The respondent kept rest hours log sheetswhichwerecompletedcontemporaneouslybytherelevantMasteronboardand were signed by the complainant.These records paint the true picture of the hoursof rest and, also, thehours worked.

It is the basis upon which the hours worked were calculated in the wage analysis.

The evidence will be that the vessel ceased worked when dark and did not resume in the morning. Evidence will further be given that the cycle of work is reasonably consistent and that the hours purported to have been worked by the complainant are not only physically impossible but did not occur.

The complainant’s enrolment into the Atypical Work Permit Scheme was obligatory and the respondent could not continue the previous arrangement.

Neither the respondent nor his representatives received any correspondence in relation to this complainant prior to the WRC letter of 9th May. In particular the Respondent denies receiving any correspondence from the ITF on 23rd March 2022 seeking any records he had pertaining to the complainant under Article 15 of General Data Protection Regulation.

Regarding wages, the employee was paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay, as per the terms of the Contract of Employment. All pay slips have been furnished, together with Revenue Commissioner documentation.

No correspondence was received by the Respondent from the ITF other than an unannounced request on 23rd March 2022 referencing a relating to a Subject Access Request on behalf of three named individuals. As all individuals named were already in receipt of the contract of employment duly approved under the ATW Scheme, and ancillary documentation to include pay slips, no further action was taken in relation to same.

The complainant received his contract of employment and all more recent iterations of it setting out the terms of his employment including pay.The submission made by the complainant regarding a claim under the Minimum Wage Act rather than the Payment of Wages Act does therefore not hold water.

The complainant was paid as per the terms of his contract of employment, and accordingly, a under the Payment of Wages Act must fail.

The respondent accepts that the complainant was an employee since July 2018. Reference made to a number of WRC cases as additional reasons for citing the Minimum Wage Act regarding the length of time during which the complainant was employed by the respondent is not accepted as the complainant was a share fisherman until the contract of employment was signed in 2018.

The case of Sue Ryder Foundation Ireland Ltd and Maureen Meenagh related to the National Minimum Wage Act 2000 and a charity worker. The facts of that case do not bear relevance to the current case.

The case of Karski v AS Cars MWD152 related to Unfair Dismissals Acts 1977 to 2007 and Minimum Notice and Terms of Employment Acts, 1973 to 2005. Neither of these pieces of legislation are the basis of any complaint made by the complainant.

The case of Memory Nyazika and Sandra Dzumbira relate to s.28(1) of the Organisation of Working Time Act, 1997. Please see the submission above regarding want of jurisdiction.

The case of A trainee solicitor and a law firm ADJ-00020327 related to National Minimum Wage Act and Terms of Employment (Information) Act, 1994.

The complainant in the current case was in receipt of a formal contract of employment. The complainant was paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay, as per the terms of the Contract of Employment.

The ITF made a Freedom of Information Requests to the Department of Defence for the start and end of voyages on the Fishing Vessel Nausicaa. The respondent has lodged a complaint with the Data Protection Commissioner regarding the breach of his rights arising from the sharing of data by the Irish Naval Service as referred to by the ITF in his email to the WRC of 16th December 2021.

The Respondent also considers that the WRC ought to direct the complainant that no information obtained from the Naval Service in breach of the Respondent’s rights under GDPR can be put in evidence before the WRC.

Notwithstanding this, the respondent strongly rejects the submission that any equipment was switched off by the respondent contrary to 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 was a share fisherman with the respondent until he signed the contract of employment in July 2018 and was paid under the terms of the contract of employment.

All calculations made by the complainant or his representatives are rejected by the respondent. Full details of the complainants work and wages are furnished to the WRC. This complaint falls outside the jurisdiction of the WRC.

Any determination heretofore made by the WRC or Labour Court in relation to the Organisation of Working Time Act 1997 cannot be relied upon in light of the decision of both the WRC and Labour Court in the Galopin case.

Sunday Payments: The Respondent rejects the submission that the complainant was not paid for Sunday work. holiday entitlements or public holidays The complainant’s pay slips reflect these payments.

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 complainant left the employment of the respondent on 22nd July 2021. The complaint form was furnished to the WRC six and a half weeks later. Specifically, this complaint (if in time) can only relate to the period of six months prior to the lodgment of the complaint per s.41(6) above, being May 2021.

The details of the complainant’s pay were clearly set out in the latest contract of employment received by the complainant in July 2021. The complainant is now making a complaint relating to a period of time that commenced in December 2016.

The complainant was in a position to lodge a formal complaint under this Act, but only some years later, in September 2021 was this complaint lodged. He  submits that he had a limited command of English but he has been in the State since 2013.

The complainant has been afforded the protections of the State in terms of the ATW Scheme since signing the contract of employment in 2018. The WRC has exercised its rights as Compliance/Inspection service and has carried out inspections of the Respondent’s operations during the past number of years. No complaint or comment in relation to the complainant’s employment with the Respondent was brought by the WRC to the attention of the Respondent since the commencement of employment.

Only four days passed from the cessation of employment to the lodgment of the complaint. This does not indicate a limited understanding.

It is not a matter for the respondent that the ATW Scheme is so constructed. The complainant has not exhibited any reasonable cause in his request for an extension of time.

It is submitted that the respondent has complied with the scheme for the non-EEA working on fishing vessels. At all material times hereto the respondent has ensured compliance with the relevant legislation and terms of employment and facilitated any inspection for independent review by the relevant bodies.

Evidence of the respondent Mr. Richard Brannigan.

The witness gave his evidence on affirmation.

The witness stated that the manner in which hours were recorded was actual working time and rest periods. In relation to preparation for sailing he said that there was not a lot to be done at that stage.

Also en route to the fishing ground there was no work to be done and the crew would relax. This could take up to twenty-four hours especially if they were sailing to the west coast. Likewise in bad weather there would be no work or perhaps only a couple of hours work. The witness accepted that occasionally the complainant would navigate the vessel.

Regarding the actual work on arrival at the fishing ground the witness said it would take about an hour and 40 minutes to shoot the nets and this could be as low as an hour.  There would be three shots per day. Any additional work on nets would be paid by means of a bonus.

The witness was asked about the accuracy of the satellite tracking systems VMS and AIS and said they were not accurate. While AIS records a position it was inaccurate in relation to speed.

He also said that the Marine Survey Office checked all his records and they were all complaint.

Regarding the timesheets the witness said that the fishers were never given blank sheets. Sometimes  they might record the letters ‘NF’ meaning no fishing on the employees knew what this meant. The weekly pay slips sheets also contained a statement of the hours.

The witness was cross examined by the complainant’s representative.

He  was asked first about the range of steaming times and said this could vary from two hours to the Irish Sea to twenty-four hours to the Porcupine Bank.

He was asked why there was no variation in the hours and the witness said that the fishers were paid overtime.  He also accepted that compliance with the AIS was a legal requirement.

In summing up the respondent made the following points.

The data submitted arising from the satellite tracking systems was not reliable for the purposes of the complaints as it did not record actual time worked. The only evidence of the time worked was the worksheets which were checked by the Workplace Relations Commission and the Marine Survey Office and never gave rise to a problem. The respondent complied with all requirements in the 2016 regulations.

The respondent also drew attention to contradictions in the evidence which included claims about a twenty-five hour working day and every day working twenty hours and ten days in a row.

The complainant was not a reliable witness.

There were extended periods when the vessels could not operate and he noted that other payments were made to the complainants by way of bonuses or overtime.

He drew attention to the fact that neither the complainant nor his colleagues availed of the opportunity to report these issues to the WRC when interviewed confidentially.

Finally he confirmed that the complaint in relation to public holidays was conceded was conceded.

There were initially three complainants who had agreed that their cases would be heard together, or at least sequentially. The parties involved all had the same representatives and so it was convenient to do so. One complainant eventually withdrew.

In the event, four hearings were required, on June 29th and September 22nd, 2022, February 7th, 2023 (and a hearing scheduled for March 23rd was postponed,) with the final hearing on January 30th, 2024.

A total of eight complaints under complaint reference CA 46010-001 to 008 inclusive were made originally and submitted on September 6th, 2021.   Three of the complaints, CA-00046010-005, 066 and 007 were withdrawn.

The complainant, Mr Shokir Ghonim eventually gave sworn evidence on January 31st, 2024. The respondent gave evidence on affirmation in this case on the same date.

The complainant stated that he had commenced with the respondent in 2014 as a ‘share fisher’ as a member of a crew of approximately six plus a skipper. His evidence was that he was given a form every week to certify the hours worked but it was always blank. He was not  given a copy of the sheet he signed.

He gave an outline of his daily work. Five hours was spent processing fish, and the net was ‘shot’ (cast) four times per day.

He challenged a number of the records now produced by the respondent in respect of particular days in 2020 such March 11th, 12th, April 5th, May 4th and 5th, June 3rd, and July 22nd and 23rd which showed him working at sea when the vessel was in harbour and on March 19th, 21st, 22nd, April 2nd, 18th 27th, May 17th, June 18th, 23rd to 29th, and August 1st which records him as not working when he was,  and when the vessel was at sea.

He stated that his daily working hours were nineteen when at the fishing grounds and that he had to work ‘ceaselessly’. Among his duties were to steer the vessel, stocking the vessel, watch duty (2-3 hours per day) working on the pier before departure and on retuning to port. He did not get a two-hour break between casts of the net, although it appears on the weekly time sheet that he did.

His claim for wages due to him is approximately €61,000.

There was an extraordinary volume of submissions and documentary materials made in the case, (just over thirteen hundred pages) including very detailed and technical records of working hours, satellite tracking of vessel movements etc.

There were disputes about the admissibility of some of this material as the respondent submitted that private data related to the respondent’s vessel movements had been released without his permission. However the real issue about these records is what they could show about the complainant’s working hours as opposed to the movements of the vessel.

Add to this the four hearings and the long gaps in between them  and the ensuing disruption to the continuity of the process and it did not make for ideal conditions for any of the parties.

Of the original eight complaints, one, in relation to public holidays was conceded by the respondent, as CA-00047152-007, although on my reading of the complaint form it is complaint no 004. and four were withdrawn leaving CA-00046010-001 (National Minimum Wage), CA-00046010-007 Organisation of Working Time Act (Public Holidays)  CA-00046010-008, Terms of Employment (Information) Act remain for decision.

Also of relevance to the complaints are the facts that the complainant’s employment terminated on on July 22nd, 2021, and the complaint was received on September 6th, 2021, which has a bearing on cognisable period. And while there was an initial application for an extension of time in respect of some of them, it was conceded by the complainant that a number of complaints cannot be brought within even the twelve month time limits.

In any event, having regard to the ‘Explain and Excuse test, formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338   there was no basis to extend the time limits for any of the complaints.

All other complaints either fell outside the general jurisdiction of the Organisation of Working Time Act as it does not apply to the workers concerned and on the basis of ADJ 9467, or because they were not made within the required time limits. 

The complainant representative noted that the complaints under the National Minimum Wage Act were capable of being pursued because the cognisable period is much longer.

While that is true in relation to the narrow matter of time limits, this also brings with it certain problems of establishing the evidence, and this proved to be a significant hurdle in the case, especially given a claim of this magnitude, €61,000 stretching back to 2016.

The conflicts in the evidence could hardly have been greater.

The figure given by complainant put his average daily hours was hard to pin down. By one count, which the respondent was quick to pounce on in cross examination it could be twenty-five hours per day, and there were references to being at the fishing grounds for ’18-19’ hours.

The respondent put average hours at ten or eleven.

The complainant set out to challenge the reliability  and credibility of the time sheets based on a number of specific days when, in his submission, they could not have been accurate.

However, while he landed some very heavy punches he ran into a number of problems. (At the conclusion of the hearing on February 7th, 2022, I put it to the parties that I would require to hear actual evidence in respect of any day where it was alleged that records were inaccurate. The relevance of this is further discussed below.

The first problem was that in respect of at least some the days for which actual evidence was offered, the complainant’s submission as to what allegedly happened was hotly contested by the respondent in his evidence.

This did not mean that there was necessarily a convincing alternative explanation offered.  In some instances, it might more accurately be described as speculation as to what might have happened, (such as ‘it could have been bad weather’ as an explanation for the complainant not being recorded as working on a particular day).

To describe the result of such an exchange as inconclusive is putting it mildly.

The complainant also submitted a number of examples (eleven in total) of where the satellite data indicated turns and movement of the vessel consistent with fishing activity in which one or more of the complainants were on board but marked as ‘not working’.

The submission characterises these as casting ‘extreme doubt on the paper-based records supplied by the respondent. I agree that these submissions were convincing in undermining the credibility of the respondent‘s records.

But the second problem is that even if these sample days were as the complainant sought to establish, and his objective of discrediting the timesheets was accomplished, what then?

The complainant is inviting the Adjudicator to extrapolate from this to  find that, having established the unreliability of the timesheets for specific days (some thirty days approximately)  this represents sufficient evidence over the years of the claim of the complainant’s claim of a seventeen hour (or whatever number of hours)  day every day for several years to the point where his claim of €61,000 is well founded.

This represents a core difficulty in the complainant’s case; the extent to which the Adjudicator can reliably extrapolate from even very persuasive examples of incidents of inaccuracy in the records and  the complainant’s direct evidence about them to lead to a conclusion that the case is well founded in respect of the entire period of several years (back to 2016 in the complainant’s submission, 2018 in the respondent’s).

The written submissions of the complainant (not all of which were confirmed in formal evidence) provide more examples of this generalised approach.

In the complainant’s third submission the following appears. This follows a number of strongly argued (thought still contested by the respondent ) examples of anomalies in the records.

‘It is the assertion of the three complainants that these [time] sheets grossly understated their hours of work but that that they nevertheless felt compelled to endorse them because to do otherwise would precipitate a conflict with their employer and the likely termination of their contract rendering them both unemployed and undocumented’

The complainant did mount a credible challenge to the reliability of the records to some extent and in respect of specific dates in that the respondent’s explanations for alleged inconsistencies in them were far from convincing.

That said, the respondent was being asked at the third hearing (on February 7th, 2023) to comment on three voyages, one of which had taken place in March 2020, so it may be understandable that a degree of speculation informed his answers. He could speculate that bad weather might explain the fact that there had been no work on the day in question but did not actually offer that as hard evidence. Whether the pursuit of the detail necessary to resolve this uncertainty would have been proportionate is highly questionable.

In a case under the Organisation of Working Time Act (which this is not), there is a more general jurisdiction to award up to twenty-six weeks compensation based on what is ‘reasonable and equitable’.

It is easy to see that this involves a more generalised degree of assessment of the merits of a case, and of course compensation is limited to twenty six weeks.

The National Minimum Wage Act is more specific in allowing for arrears of any outstanding pay.

But this significantly shifts the onus of proof on a complainant to establish that arrears of pay are actually owed. It is quite different to an award of compensation for a breach of rights under an Act.

In my opinion this onus is not discharged simply by successfully challenging the reliability of records if this does permit an Adjudicator to reach an accurate conclusion about the arrears of actual pay outstanding.

Otherwise, an adjudicator is being asked in those circumstances to engage in guesswork rather than make a decision on evidence and to extrapolate from several established facts (although in this case they were not all quite established) to a very dubious conclusion which, if wrong, would result in a very significant award against the respondent. (in the two cases combined, approximately €126,000).

Therefore, even if it seems probable to me that the records are unreliable in some respects, (and it does) the degree of probability that this occurred on every shift the complainant ever worked back to 2016 has not been sufficiently established in evidence to allow me to make a safe conclusion that it has. 

The complainant relied on a Labour Court decision inMemory Nyazika and Sandra Dzumbira  MWD 1015.

It does not help his case. In the Court’s conclusions the following appears.

There was a direct conflict in the evidence tendered by the Claimant and that of the Respondent on practically every fact in issue in this case. In respect to the duration of the employment the Respondent told the Court that it came to an end in or about May 2005. The Claimant’s evidence on this point was that it continued up to 6th May 2009. The Respondent accepted that the Claimant continued to reside with her until the later date and that she undertook some work in consideration of being provided with accommodation. Neither party was in a position to offer any corroboration of the testimony that they proffered.

Having considered the evidence of both parties the Court finds the evidence of the Claimant on this point more credible. Consequently the Court finds it more probable than not that the Claimant’s employment persisted until 6th May 2009.

  The Court has considered the conflict of evidence regarding the payments made to the Claimant over the currency of her employment. It is noted that even taking the Respondent’s evidence at its height there was a significant underpayment in respect to the period of employment which is not in dispute (between February 2004 and May 2005.

The Court is obliged to apply s. 23(2) of the Act which provides, in effect, that where records showing compliance with the Act are not maintained the employer bears the legal burden of proving compliance in any proceedings before the Court. The Court has not found the Respondent’s evidence on the payments made to the Claimant more convincing that that tendered by the Claimant herself. Consequently the Court must accept the evidence of the Claimant on this point.

Determination

For the reasons referred to above the Court finds itself in full agreement with the conclusions reached by the Rights Commissioner concerning the durations of the Claimant’s employment with the Respondent and on the level of pay which she received over that period. The Rights Commissioner undertook a careful calculation of the amount due and owing to the Claimant and concluded that she is due arrears in the amount of €51,523 under the Act. No issue was taken as to the mathematical accuracy of the Rights Commissioner’s calculations.

Accordingly, the Court holds that the Claimant is due arrears, being the difference between the amount paid to her by the Respondent and the minimum amount the Claimant was entitled to receive in accordance with the Act, in respect of the period 2nd February 2004 and 6th May 2009, in the amount of €51,523. An award in that amount is made in favour of the Claimant to be paid within six weeks of the date of this Determination.

The decision of the Rights Commissioner is affirmed and the within appeal is disallowed.

As will be seen, that case has in common with this one a serious conflict in the evidence. But it may be distinguished from this case in three important respects.

First, the issue requiring a determination on a balance of probability illustrates an important distinction with this case. It was on a significant but single issue that was a question of fact, and one that could be easily determined; the duration of that complainant ‘s residence with the respondent.

It did not relate to a pattern of activity over a period over years multiplied in its complexity for every single day the complainant worked.

On the issue of probability, the complainant referred in one of the later submissions to ‘improbable’ work patterns, and while in respect of the information to which this referred, he was understating the degree of improbability, even accepting those recorded episodes as being incorrect does not permit the conclusion that this can be extended for every day the complainant worked.

The complainant may very reasonably say that it suggests that, but that does not meet the standard of evidence that it does.

Secondly, in this case it is not an absence of records that is the problem, but their reliability. I do not think that any degree of unreliability in relation to the records that has been established is sufficient to discharge the burden of proof that falls on the complainant.

In addition, there is the inconvenient fact that the records were signed by the complainant. The insinuation that the complainant’s job might be in jeopardy if he did not sign was unconvincing, and no evidence was produced to support it.

The respondent’s evidence was that employees were told that it was a legal requirement that the document be signed, which is a different matter, and could easily have been misinterpreted by the complainant. There was no evidence offered by the complainant  of any threat to his employment if he did not sign it.

Further the records were the subject of regular inspection by the WRC and the Marine Survey Office, the former held private conversations with the complainant (and his colleagues) who apparently never confidentially drew the inspector’s attention to any concerns they may have had. (Although this complainant said that he had no recollections of these inspections.)

Bear in mind the degree of loss involved for the complainant and even allowing for some lack of familiarity with his employment rights, it is hard to believe that the complainant had no understanding of the function of a WRC Inspection.

And finally on this point, while I accept that these  were vulnerable workers, the fact that the complainant renewed his contract on a number of occasions tends to undermine the credibility of his stated dissatisfaction with those conditions. Indeed, even making all necessary allowances, the fact that no complaint was ever made under the Act contributes to this.

Second, and more critically for my decision in this case, the following appears above in the Labour Court Decision in Nyazika. The Court endorsed the decision of the Rights Commissioner because he had undertaken.

‘a careful calculation of the amount due and owing to the Claimant and concluded that she is due arrears in the amount of €51,523 under the Act. No issue was taken as to the mathematical accuracy of the Rights Commissioner’s calculations’.

Underlining added.

 This highlights in a stark way the very problem confronting the Adjudicator in this case.

For the reasons set out above, there is no conceivable basis on which I may undertake ‘a careful calculation’ of the amount due or achieve anything approaching ‘mathematical accuracy’ in determining the complainant’s entitlements.

The evidence of the complainant is in some respects as unreliable as that of the respondent in its unwavering rigidity and he seemed too willing to respond to questions on the basis of generalisations.  His claim to have worked nineteen hours on every day he was ever scheduled to work is not believable, even allowing for the discounting that went on in making the calculation of what he is due.

While the respondent may have been taking advantage of some poor articulation of his case in cross examination, (which was via an interpreter) it was not without some significance that his, the complainant’s description of his day’s work brought it to in excess of twenty-four hours. It represented a certain indifference to accuracy that did not inspire confidence in its credibility. 

Section 26 of the National Minimum Wage Act empowers an Adjudicator (at section (2) a to make an award of arrears, being the difference between the amount paid, or allowed by the employer to the employee for pay, and the minimum amount the employee was entitled to be paid.

On any plain reading of this, it is not open to an Adjudicator to estimate or guess what is believed to be the amount ‘the employee was entitled to be paid’, or to apply the criterion of what might be ‘just and equitable’.

It must be established in evidence to a reliable standard of proof and on the basis of ‘a careful calculation’ for which the raw data have not been provided in this case.

Therefore, while I have no doubt that elements of the records of the time worked which were submitted in the evidence were unreliable, and plain wrong,  I have not been provided with sufficient hard evidence to make any, much less a ‘careful calculation’ over the five-year period which is the timeframe of the complaint.

The  Act does not permit an Adjudicator to estimate purely on the basis of guesswork what the complainant ‘was entitled to be paid’. Had the complainant selected a shorter period for which he could offer persuasive evidence he might have eliminated the necessity for that guesswork.

And  while there was an initial application for an extension of time in respect of some of them, a number of complaints cannot be brought within the time limits and therefore only CA-00046010-001 (National Minimum Wage), CA-00046010-007 Organisation of Working Time Act (Public Holidays)  CA-00046010-008, Terms of Employment (Information) Act remain for decision.

The complaint relating to public holidays was conceded by the respondent, CA-00046010-007 (according to the complaint form) This complaint is well founded, and I award the complainant €2,500.00.

Regarding CA-00046010-008, the complaint under the Terms of Employment (Information Act, the complainant submitted that the case was that the complainant’s ‘pay and conditions of work were at odds with the provisions of the standard atypical work contract. Specifically, the statement did not state the rate of pay, there was no reference to the pension scheme and the wrong SI had been referred to. This complaint is well founded, and I award the complainant €1,000.00.

For the reasons set out above the complaint CA-00046010-001 under the National Minimum Wage Act is  not well founded.

None of the other complaints are well founded.   

CA-00046010-007 (according to the complaint form) This complaint is well founded, and I award the complainant €2,500.00.

CA-00046010-008 is well founded and I award the complainant €1,000.00.

Complaint CA-00046010-001 under the National Minimum Wage Act is not well founded.

None of the other complaints are well founded.