Complainant

Respondent

Parties

Khaled  Elagamy

Richard Brannagan

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-00047152-010

11/11/2021

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

CA-00047152-001

11/11/2021

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

CA-00047152-002

11/11/2021

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

CA-00047152-003

11/11/2021

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

CA-00047152-004

11/11/2021

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

CA-00047152-009

11/11/2021

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

This case was one of a number involving former employees of this respondent, three of whom were  involved in this sequence of hearings. (One eventually withdrew).

In the case of Khaled Elagamy there had originally been ten complaints which were reduced over the course of the hearings process.

One, in relation to public holidays was conceded by the respondent, (CA-00047152-003) and four were withdrawn leaving CA-00047152-001 (NMW, Sunday premium), CA-00047152-009, Terms of Employment (Information Act and CA-00047152-010, National Minimum Wage.

(Also of relevance to the complaints are the facts that the complainant’s employment terminated on November 7th, 2021, and the complaint was received on November 11th, 2021, which has a bearing on cognisable period. There is confusion in the submissions as to the specific references for the individual complaints which I correct in the Decision below).

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 11 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 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 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.

Khaled Elagamy, the complainant began working for the respondent in an undocumented capacity in 2013 as of ‘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.

CA-00047152-006PaymentofWagesandCA-00047152-001MinimumWageAct

Subsequent to the submission of the original submission of the WRC complaint form, Mr. Elagamy sought from his former employer for a statement on the rate of pay purportedly paid to him during sea-going voyages. The failure of the respondent to respond to this request within four weeks enabled the subsequent addition of a complaint under the Minimum Wage Act. The argumentation that follows therefore is being made under the Minimum Wage Act rather than the Payment of Wages Act.

Given that Mr. Elagamy’s contracts promised pay at the minimum wage rate his representatives believe that this Act will better serve his complaint than the Payment of Wages Act.

AnadditionalimportantreasonforcitingtheMinimumWageActinthiscaseis thelengthof timeduringwhichMr.Elagamywasemployedbytherespondentandthatweareawareof 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 2021 is his last voyage in November of that year after which he left the respondent’s employment no longer being able to endure the exploitative work regime

Mr. Elagamy 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 €65,326.31 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-00046459-002SundayPremia, (Adjudicator note; correct reference CA-00047152-002)

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-00046459-004HolidayPay  (Adjudicator note; correct reference CA-00047152-003)

Our calculation is predicated on the extension of the cognisable period to twelve months prior to the complaint being submitted, that is 12 November 2020 to 11 November 2021. The justification for seeking this extension is set out later in this submission but here we will proceed with our calculation.

Two pay slips in the annual leave year of 2021 contain references to holiday pay 18 June 2021 (page 19 of the pdf file of pay slips) 18 hours and 25th June 2021 (page 22 of the pdf file of pay slips) 27 hours, total 45 hours.

Two pay slips in the annual leave year of 2020 contain references to holiday pay 25th September 2020 (page 34 of the pdf file of pay slips) 44 hours and 2nd October 2020 (page 35 of the pdf file of pay slips) 26 hours, total 70 hours.

Clearly what is itemised in the pay slips issued by the respondent falls well below the statutory minimum leave entitlement promised in the standard Department of Justice approved Atypical contract.

As with the Sunday premia even if the respondent were to lay some claim to particular payments representing holiday pay 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 holiday pay is likewise was not covered by the same totality.

In our calculations, using the same methodology applied in our Minimum Wage calculations we estimate that 8% of the total Minimum Wage due for the reckonable part of the 2020 and 2021 leave years gives a total of €2,383.06 in holiday pay due not to mention any additional penalty the adjudicator may see fit to apply.

CA-00046459-005PublicHolidays

Our calculation is predicated on the extension of the cognisable period to 12 months prior to the complaint being submitted, that is 12 November 2020 to 11 November 2021. The justification for seeking this extension is set out later in this submission but here we will proceed with our calculation.

An examination of the pay slips over this period will reveal no mention of payment for public holidays worked or public holidays not rostered which would likewise entitle Mr. Elagamy to a day’s additional pay.

As with the Sunday premia, and holiday pay even if the respondent were to lay some claim to particular payments representing public holiday pay 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 public holiday pay is likewise was not covered by the same totality.

By our reckoning, applying the methodology of our Minimum Wage Act calculations, that is, 17-hour average working days and the applicable minimum wage rate for 2021 and 2020 we calculated that Mr. Elagamy is €1557.20 for nine public holidays not to mention any additional penalty the adjudicator sees fit to apply.

CA-00046459-007 Daily Rest Period CA-00046459-008 Breaks, CA-00046459-009 weekly rest period and CA-00046459-010 maximum hours.

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.

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

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

It is Mr. Elagamy’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. Mr. Elagamy managed to take a photograph of a pre-signed blank form while on board which we have included in the appendix.

CA-00047152-009–Termsand Conditions of Employment

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

TimeLimits

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.

The complainant, Mr. Elagamy gave sworn evidence on two occasions February 7th, 2023, and September 22nd, 2022. The respondent gave evidence on affirmation on the former 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. 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 such as August 15th, 2021, when it records him as not working when he was, and May 17th, 2020; a day when the vessel was at sea Abd the record shows him on the boat but not working.

He stated in his evidence that he had, in fact, been working.

He stated that his daily working hours were seventeen. 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.

When it was put to him whether he got the required eleven-hour rest period after the third cast he dais he did not.

He gave a list of the Sundays he worked without receiving a premium payment; four in May 2021, June 6th, July 22ndm September 26th and October 8th and 22nd.

He confirmed that he had met a WRC Inspector three or four years ago. His claim for wages due to him is €65,000.

He was cross examined by solicitor for the respondent.

Asked if he recalled the number of days on which he worked seventeen hours he replied, ‘all the time’.

He agreed that he signed blank time sheets about 60% of the time and normally after a gap of one to two months.

When asked why he signed these forms if they were blank, he replied that it was to keep his job. However, he confirmed that the respondent had never told him that if he did not sign that his employment would be terminated.

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.

In 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 and 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 the WRC case of 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 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 Respondent submits that 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.

The Respondent employed the complainant under the Scheme for Employment of Non- EEA Crew in part of the Irish Commercial Sea Fishing Fleet the complainant having been approved by letter dated the 9th July 2018.

The terms of the contract of employment as set out in the Complainant’s 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 in the manner alleged by the Complainant or at all.

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 respondent will give evidence that the complainant’s enrolment into the Atypical Work Permit Scheme was obligatory. The Respondent could not continue the previous arrangement.

As previously advised, 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.

It is submitted that it is for the complainant to submit a complete set of documentation in support of his complaint.

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 reflecting same are 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 is not contesting that the complainant was employed by the respondent as 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.

The complainant 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 in November 2021. The complaint form was furnished to the WRC four days 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 five years later, in November 2021 was this complaint lodged.

The complainant submits that he had a limited command of English. The complainant 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.

Notwithstanding the purported limited understanding submitted by the complainant, 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 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 Richard Brannigan, respondent on affirmation

The respondent outlined how he acquired his own boat in 2011 and went fishing mainly for prawns with a crew of six, and occasionally seven.

He said that he had changed the complainant’s status to that of an employee and given him a contract of employment modelled on that recommended by the state.

He said that the average fishing trip was nine days and gave sample journey times to the fishing grounds. He would make about two to five trips per month.

He described a day at sea. They would ‘shoot’ at 6am, tow for six hours manually, then haul (about an hour and a half) then work the catch and prepare for freezing. Then they would ‘shoot again at midday after a two-hour break. Over a day they might ‘shoot three, or sometimes four times, depending on location.

He said the average working time in a twenty-four hour period was ten to twelve hours.

In response to the complainant’s evidence regarding a seventeen-hour day, he dais that this was not possible.  He also denied that the timesheets were ever blank, they always had detail. He says that these were also overseen by the marine regulator, the health and safety representative and they have never been challenged,

He responded to the suggestion of duress on the complainant by saying that he had renewed his contract five or six times and had given him the state-approved contract.

He said that he now only employs ‘share fishers’.

Regarding the tracking technology relied on by the complainant he said that one of these, AIS is not accurate.  The other, VMS is required by law and is only for naval use. He never consented to this being used for any other purpose.

He confirmed that he was the subject of annual inspection by the WRC Inspection Service and in the course of this the inspector interviews the fishers privately.

The respondent was cross examined.

The witness stated that he does not always skipper the boat but in the previous June to December period had done about half the time.

Asked about the filling out of working time sheets he said that this was done weekly and emailed to the business manager.

On the issue of admissibility of the voyage tracking data (VMS) the witness said that it is collected for very specific purposes, it is private information and commercially sensitive. The witness put it to the complainant representative that he had acquired it unlawfully, and repeated that the other system was inaccurate.

The witness was asked to confirm a specific voyage he skippered between September 27th and October 4th, 2021. He did so.

Asked how it could be that the timesheet was showing ‘no work’ for the complainant the witness speculated that this could be bad weather and probably was.

Details of another voyage between March 19th and 27th 2020 in which no work was recorded (and which happened to fall on a Saturday and Sunday) were out to the witness and his evidence was that no work had been performed.

Details of a third trip in October 2021 were put to the witness and he responded that they might have been ‘dodging’ (bad weather).

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 otherwise very long working days.

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 was an extraordinary volume of submissions and documentary materials made in the case, (just over sixteen hundred pages) including extraordinarily detailed records of working hours, 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.

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.

As noted there had originally been ten complaints in this case and in due course one was conceded by the respondent, (CA-00047152-005) and while there was an initial application for an extension of time in respect of some of them, all except CA-00047152-001 (NMW, Sunday premium), CA-00047152-009, Terms of Employment (Information Act and CA-00047152-010, National Minimum Wage were withdrawn

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. 

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 which were not made within the required time limits.

The respondent 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 simple matter of time limits, a claim of this magnitude, €65,000 stretching back to 2016 brings with it certain problems of establishing the evidence, as will be seen below.

The conflicts in the evidence could hardly have been greater.

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

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 was actually happened was hotly contested by the respondent in his evidence.

This did not mean that there was necessarily a convincing alternative explanation offered for what actually happened.  In some instances, what was offered 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).

Quite often what was offered as evidence was mere speculation.

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?

(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. I return to this below.)

The complainant is inviting the Adjudicator. to extrapolate from this to find that this represents sufficient evidence of his claim of a seventeen-hour day every day for several years to the point where a claim of €65,000 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 in that the respondent’s explanations for alleged inconsistencies in them, while plausible 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 there was some degree of uncertainty about his answers. He could speculate that bad weather might explain the fact that there had been no work on the day in question but not actually offer that as hard evidence.

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

That would follow a more generalised equitable 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. 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 pay actually 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 not all were quite established) to a very dubious conclusion which, if wrong, would result in a very significant award against the respondent. (in the two cases approximately €126,000 in total).

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 worked back to 2016 has not been sufficiently established in evidence to allow me to make a safe conclusion that would allow a calculation of wages due.

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 it in three important respects.

First, in Nyazika 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; 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 by every 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 it does not permit the conclusion that this can be extended for every day the complainant worked.

The complainant may reasonably say that it suggests that, but that is not evidence that it did.

Second, 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 reliability that has been established is sufficient to displace the burden of proof from the complainant. In that respect, while an issue was made over the admissibility of the satellite tracking records, a bigger problem is that, while they record movements of the vessel, they do not definitively establish when the complainant was at work.

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. Indeed, the complainant specifically stated in his evidence that he had never been told that his employment would be terminated if he did not sign the timesheet.

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 from the complainant of any threat to this 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. Bear in mind the degree of loss involved 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, the fact that the complainant renewed his contract on five or six 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 the decision in this case, the following appears above in the Labour Court Decision. 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.’

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 was, if anything as vague and unreliable as that of the respondent and he seemed too willing to respond to questions with generalisations and imprecision. His claim to have worked seventeen 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.

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 make up or estimate 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 of mathematical accuracy’ for which the raw data have been insufficiently 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, I have not been provided with sufficient hard evidence to make any, much less a ‘careful calculation.’

The Act does not permit an Adjudicator to estimate purely based on 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, all except CA-00047152-001 (NMW, Sunday premium), CA-00047152-009, Terms of Employment (Information Act and CA-00047152-010, National Minimum Wage were withdrawn.

As noted there had originally been ten complaints in this case and in due course one was conceded by the respondent relating to public holidays, CA-00047152-003 This complaint is well founded, and I award the complainant €2,500.00.

Regarding CA-00047152-009, 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 complaints CA-00047152-001 and 010 under the National Minimum Wage Act are not well founded.

None of the other complaints are well founded.

CA-00047152-003. This complaint is well founded, and I award the complainant €2,500.00.

CA-00047152-009., This complaint under the Terms of Employment (Information Act is well founded and I award the complainant €1,000.00.

For the reasons set out above complaints CA-00047152-001 and 010 under the National Minimum Wage Act are not well founded.

None of the other complaints are well founded.

Fishers, Hours of work, Burden of proof