GALLEY MARINE ENTERPRISES LIMITED
1.An appeal of an Adjudication Officer's Decision No(s) ADJ-00005879 CA-00008139-002
This is an appeal by Mr Mohammed Abbasy (‘the Complainant’) from a decision of an Adjudication Officer under the Payment of Wages Act 1991 (‘the 1991 Act’) and from a decision under the Organisation of Working Time Act 1997 (‘the 1997 Act’). Both decisions are dated 18 April 2017. The decision of the Adjudication Officer made under the 1991 Act bears reference number ADJ-0005879/CA-0008139-001; the decision under the 1997 Act bears reference number ADJ-0005879/CA-0008139-002.
The Complainant’s Notice of Appeal was received by the Court on 25 May 2017. The Court heard the appeal in Cork on the following dates: 27 September 2017, 13 March 2019, 19 February 2020, 27 October 2021 and 28 October 2021.
The Court heard the evidence of the following witnesses: the Complainant; Lt Cdr Eamonn Doyle NS (Retired), Master Mariner; Mr Adrian Bendon, director of, and shareholder in, the Respondent and Master of the MFV Hannah J; Mr MacDara Breathnach, Skipper of the MFV Hannah J; and Mr John O’Mahony.
An expert report prepared on behalf of the Respondent by Captain Jim Shalloo, Sea Fisheries Protection Officer, was submitted to the Court. Captain Shalloo was present in court and available to give evidence in relation to his expert report but was not, in fact, called by the Respondent.
The Complainant’s complaints were received by the Workplace Relations Commission on 11 November 2016. It follows that the period comprehended by the complaints is 12 May 2016 to 13 September 2016, the Complainant’s final day of employment with the Respondent.
The Complainant was engaged by the Respondent from January 2016 until 13 September 2016. In the period prior to 26 April 2016, he was engaged as a share fisherman on the trawler MFV Hannah J. During the aforementioned period, the Complainant was paid a share of the proceeds of the boat’s catch. From 26 April onwards, the Complainant was employed by the Respondent as a deckhand pursuant to a contract of employment issued in accordance with the Atypical Working Scheme for Non-EEA Crew in the Irish Fishing Fleet.
Under the terms of that Scheme (and as provided for in his written contract of employment), the Complainant was entitled to be paid €9.15 per hour, the then prevailing rate under the National Minimum Wage Act 2000.
The hours actually worked by the Complainant, in the period to which the complaints relate, varied from week to week. Nevertheless, the payslips generated by the Respondent in respect of the Complainant’s employment demonstrate that the Respondent paid the Complainant a standard weekly rate per week based on a thirty-nine-hour working week.
The Complainant prepared a written record of the hours he spent working on the Hannah J. This was included with the Complainant’s first written submission of 18 September 2017. When giving evidence, the Complainant told the Court that he prepared the record from memory and having regard to the records submitted by the Respondent at the hearing before the Adjudication Officer.
The Complainant subsequently revised his written record in the light of the evidence heard by the Court and, in particular, having regard to the electronic fishing logs opened to the Court.
The 1991 Act:The Complainant submits that, contrary to what his payslips for the period of his employment show, he worked 1256 hours as a deckhand on the MFV Hannah J between 26 April and 21 September 2016. (For the period comprehended by the within appeals he submits he worked 1108 hours.)
On the basis of his own record, the Complainant further submits that he was entitled to be paid €11,492.40 gross for the full period of his employment on foot of his contract of service with the Respondent. However, he received payment of only €5,352.75 leaving him with an alleged underpayment of wages totalling €6,139.65.
As the records submitted by the Complainant include 148 hours worked prior to the period comprehended by the within complaints, the Court calculates that the claim under the 1991 Act is for unpaid wages in the amount of €4,785.45 (€6,139.65 -€1,354.20).
The 1997 Act:The Complainant submits that he is entitled to payment for accrued annual leave in the amount of €919.39 ((8% x 1256 hours) @€9.15) and payment for public holidays in the amount of €214.11.
It is appropriate to note, at this stage, that lawyers for the Complainant submitted that his “primary case”, grounded in his contract of employment and his evidence to the effect that he was always liable to called to work when onboard the Hannah J, is that the Complainant was entitled to be paid for every hour spent on the Hannah J.
In that context, the lawyers further submitted that the complaints, as outlined above, under the 1991 Act and the 1997 Act, constitute his “secondary case”. For the reasons outlined later in this Determination, the Court does not accept that the so-called “primary case” is properly before it.
The Respondent’s Submission
It is submitted on behalf of the Respondent that the Complainant worked a total of 652 hours between April and September 2016 and was paid in full for those hours at the rate of €9.15 per hour, or €5,965.80.
It is further submitted by the Respondent that the Complainant received a premium of €0.25 per hour for 93 hours worked on Sundays and payment of €155.55 in respect of two public holidays on which he worked.
Finally, the Respondent also submits that the Complainant received a bonus payment of €4,078.90. In summary, it is the Respondent’s case that the Complainant received payments totalling €11,215.90 in respect of his period of employment between April and September 2016.
The Respondent exhibited thirteen copy cheques made payable to the Complainant from the Respondent as follows:
23 May 2016 for €1,461.00;
2 June 2016 for €2,235.00;
15 June 2016 for €679.54;
24 June 2016 for €679.54;
10 July 2016 for €339.77;
14 July 2016 for €339.77;
23 July 2016 for €339.00;
1 August 2016 for €339.77;
8 August 2016 for €339.17;
12 August 2016 for €339.77;
19 August 2016 for €339.77;
25 August 2016 for €339.77;
26 August 2016 for €1,000.00
The Respondent also exhibited a redacted current account statement indicating that two payments of €339.77 were made by the Respondent by electronic transfer to the Complainant’s bank account: the first of these on 6 September 2016 and the second on 12 September 2016.
When added together, the total of the payments indicated by the foregoing is €9,451.41. The Complainant’s P45 for 2016 (exhibited by the Respondent) records his total gross pay as being €11,215.90. (Incidentally, it also records the Complainant’s date of cessation as 9 September 2016).
The Respondent also exhibited records of the Complainant’s working hours and hours of rest purported to have been created in accordance with SI No 709 of 2003 along with copies of entries from the skipper’s diary which formed the basis on which the aforementioned statutory records were subsequently compiled.
The Court also received copies of the fishing logs for MFV Hannah J created pursuant to Commission Regulation (EU) 2015/1962.
The Complainant’s Evidence
The Complainant told the Court that he arrived in Ireland on 12 December 2015 and started working in Union Hall, County Cork, in January 2016 as a spare man on two vessels. He undertook seven trips as a share fisherman on the MFV Hannah J before he entered into a contract of service with the Respondent on 26 April 2016.
As of that date, he says he had been paid for only five of the seven trips he had undertaken as a share fisherman. Payment for two trips remained outstanding.
The Complainant outlined his usual work pattern when undertaking a fishing trip as follows. He spent an hour in preparation for the trip. This involved placing the boxes in which the fish and prawns caught on the trip would be placed into the fridge.
Once the vessel had been underway for approximately two hours, the Complainant and his colleagues (other than the skipper) took turns being on watch. Each crew member remained on watch duty for about four hours.
Generally, the vessel spent between eight and ten hours steaming to the fishing grounds. When called on to do so by the skipper, on reaching the fishing grounds, the crew shot the nets.
Thereafter, the Complainant says he had the opportunity to sleep for three to four hours. He was then called by the skipper to haul the nets and wash and pack the catch – a process which took two to three hours as it involved packing prawns according to size and then blast freezing them. This was followed by a break for coffee of about half an hour before the nets were shot for a second time.
According to the Complainant, the nets were shot three or four times on the first day of the trip at intervals of four or five hours. If any damage occurred to the nets, this would have to have to be repaired.
He then took his turn on watch duty during the night. His recollection is that he was often required to work until 2.00 or 3.00 a.m. The day’s work began again when the nets were shot for the first time at 4.20 a.m. According to the Complainant, an average trip lasted seven to ten days. He recalled one trip that lasted eleven days. His evidence is that he worked an average of 17 hours per day and rested for an average of four hours per day while on board the Hannah J.
However, he also told the Court that he was always liable to be called to work at any time if that was deemed necessary by the skipper.
Counsel referred the Complainant to the section of the Respondent’s bundle which contained what were purported to be contemporaneous records made by the Respondent of the Complainant’s working hours for the period April to August 2016.
Those records are not signed by the Complainant and the Complainant’s evidence was that he had not seen them prior to the commencement of the within proceedings. The Complainant disputed the accuracy of the purported records and in particular the record of his alleged hours of rest.
Counsel next referred the Complainant to the copy payslips in their bundle. The bundle included 20 payslips covering weeks 18 to 37 inclusive; week 18 payslip is dated 29 April 2016 and week 35 payslip is dated 9 September 2016.
The Complainant told the Court that he never received a payslip from the Respondent. His first sight of the payslips was when they were exhibited at the hearing before the Adjudication Officer. The Complainant confirmed that he received the net amount stated on the face of the payslips i.e. €339.77 per week, calculated on the basis of a thirty-nine hour week at €9.15 per hour gross.
The reality, however, according to the Complainant, was that he worked between ninety and one hundred hours per week. The Complainant told the Court that he did not raise a complaint with the Respondent about his pay as Mr Bendon, the Master of the Hannah J, had promised the crew a bonus would be paid to them at the end of the season.
The Complainant’s evidence is that he was never paid a bonus although the Respondent produced a payslip dated 9 September 2016 which purports to show that a bonus of €4078.90 (gross) was paid by the Respondent to the Complainant on that date.
Counsel then directed the Complainant to a P45 which recorded his total gross pay in the Respondent’s employment in 2016 as being €11,215.90. The Complainant denied receiving this amount in gross pay from the Respondent during the period April to September 2016. Counsel exhibited a cheque issued in the Respondent’s name in favour of the Complainant and dated 15 June 2016 in the amount of €679.54. The Complainant told the Court that this cheque equated to two weeks’ pay at €339.77 per week.
This, he says, was the first payment of wages he received from the Respondent following the commencement of his contract of employment on 26 April 2016. Counsel then opened a photocopy of a second cheque, being a cheque issued in the Respondent’s name in favour of the Complainant and dated 26 August 2016 in the amount of €1,000.00.
The Complainant’s evidence is that this was a payment for additional work he had undertaken – unrelated to his contract as a deckhand. The additional work involved taking the boat from Union Hall to Baltimore for repair. The Complainant said that he cleaned the boat in fresh water in preparation for painting. The Complainant denied that cheque was in respect of monies advanced by the Respondent to him to be used as a deposit on an apartment or as part-payment of a bonus.
The Complainant also told the Court that cheques dated 23 May 2016 (in the amount of €1461.00) and 2 June 2016 (in the amount of €2,235.00) were in payment for his work as a share fisherman prior to 26 April 2016.
Next Counsel exhibited a copy extract from the Complainant’s bank statement covering the period 23 August 2016 to 14 September 2016. The statement confirmed that the Complainant received three payments of €339.77 by credit transfer from the Respondent’s bank account in that period: the first was paid on 26 August 2016, the second on 6 September 2016 and the third on 12 September 2016.
Commander Doyle’s Evidence
The witness is a Master Mariner. He briefly outlined his career in the Mercantile Marine, the Naval Service and Naval Reserve. He described his extensive experience of dealing with fishing protection and control matters.
He also outlined his academic experience in the Maritime Department of what was then Cork Institute of Technology and in the National Maritime College in Ringaskiddy, Co. Cork.
Commander Doyle prepared a very detailed expert report on the operation and working patterns of the Hannah J during the relevant period for the benefit of the Court. He revised certain peripheral aspects of his report in the light of evidence given to the Court.
It is not necessary to reproduce in detail here the technical data obtained and utilised by the witness in preparing his report as neither that data nor the methodology employed by the witness was substantially challenged by the expert witnesses availed of by the Respondent.
Having regard to the issues to be determined by the Court in this appeal, it is appropriate, however, to reproduce in full at this point, paragraph 25.2 of Commander’s Doyle’s revised report (dated April 2019):
“In light of the new evidence and reworking the previous figures at paragraph 24, a reasonable estimate of the likely individual working time on this trawler, assuming 3 tows/hauls each day is as follows:
A notional tow of variable duration is followed by 1 hour to haul the gear, board the catch, prep and shoot gear for the next tow. (The AIS data indicates tows of 1 to 5 hours duration.) All hands are on deck each time to handle the gear, thus each man works 3 hours per day on this task.
Clean, sort and grade the catch after each haul, allowing 3 hours with all hands involved. Each man works 9 hours per day on this task.
The next morning the previous day’s prawn catch, now blast frozen, must be repacked and transferred to the freezer hold. Each man works 2 hours per day on this task.
One man has to prepare and cook the food, say 3 hours; when the skipper turns in at night two men, in turn, stand navigational watches, total 8 hours; allow 4 man-hours for net repairs and gear maintenance = 15 hours shared between five men: average 3 hours each.
This workload amounts to a 17-hour day average, based on 3 tows per day. More frequent tows must inevitably mean an increased workload, as on 28 May, for example, when the probable working time for most of the crew was 19 hours, and possibly in excess of this for one or two others.”
At paragraph 33 of his Report, Commander Doyle states his conclusions as follows:
“During the period under review, HANNAH J trawled intensively on long established fishing grounds in the Celtic Sea, mostly for prawn (nephrops) and for lesser by-catches of traditional demersal species. Given the nature of the fishing operation and the manning level on board it seems clear to me that the crew must typically have worked 17-hour days for the greater part of the time the vessel spent on the fishing grounds. The hours of rest record produced by the skipper is deeply suspect and impossible to accept.”
Mr Adrian Bendon’s Evidence
The witness confirmed that he is both a shareholder in, and a Director of, the Respondent company and Master of the Hannah J. He gave evidence that he initially engaged the Complainant as a self-employed share fisherman and then on foot of a contract of service in accordance with the terms of the Atypical Working Scheme for Non-EEA Crew in the Irish Fishing Fleet.
He told the Court that he had applied for a visa and work permit for the Complainant. He disagreed with the Complainant’s evidence to the effect that he (the Complainant) had begun working for the Respondent in January 2016.
According to the witness, the Complainant commenced fishing for the Respondent in March 2016 and undertook only five trips as a self-employed share fisherman and not seven trips as the Complainant had stated in his own evidence.
The witness went on to describe the difficulties that the Complainant (and another non-Irish crew member) experienced in obtaining a PPSN. The process apparently took six weeks in total.
This created difficulties for the Respondent in terms of calculating income tax due on their earnings. Therefore, according to the witness, the Complainant was paid as a share fisherman for the initial period of his contract of service (until he was issued with a PPSN) and there was an agreement between them that Mr Bendon/the Respondent would undertake a recalculation and reconciliation of payments in or around August 2016.
The witness described a typical fishing trip for the Hannah J as follows. The Hannah J, he said fished prawns mainly, in three different fields. However, it turned to other types of fish if the prawns were not available.
According to the witness, the crew turned in approximately twenty minutes prior to sailing and spent a total of one hour loading food and supplies and storing the ship’s ropes. Steaming time to the fishing grounds was approximately seven to twelve hours which the crew spent sleeping or watching television other then when they were required to take turns on watch.
A crew member spent about three hours on watch. The vessel aimed to arrive at the fishing ground at dawn, he said, at which time the skipper woke the crew. Once they had put on their gear and life jackets, the crew then spent fifteen minutes, he estimated, opening the doors and lowering the nets.
According to the witness, the crew could then return to bed for a further six hours until they were called again about twenty minutes before the end of the trawl. They had time to have a cup of tea before winching up the catch and sending the nets out again. The witness estimated that hauling in the nets and reshooting them each took about fifteen minutes.
Thereafter, the crew was required to sort the prawns. As the typical catch was about 300 Kgs or six boxes and this process took about three hours following which the crew had lunch.
According to the witness, the second trawl took about five and a half hours. The crew was called about twenty minutes before the nets were due to be hauled in and reshot. Again, he estimated this took about thirty minutes in total.
The process of sorting and packing the prawns was repeated, taking on average two to four hours. The third, or evening shot, typically yielded a lesser catch which could be sorted and packed in two or two-and-a-half hours. After packing the final catch of the day, the crew, according to the witness, were free to relax until dawn the following morning, other than during their individual periods of watch.
Asked by the Solicitor for the Respondent to comment on the cheque for €1,000.00 dated 26 August 2016 referred to above, the witness said that he met the Complainant in Skibbereen on that date and heard from him that he was anxious to place a deposit on an apartment.
The witness told the Court that he gave the Complainant the cheque there and then for that reason by way of an advance part-payment of his bonus.
The Respondent’s solicitor directed the witness to the Hannah J’s log sheets for August 2016 included in their booklet. The witness explained that the record for 12 August 2016, for example, recorded a total catch of 20 boxes of fish and 186 Kg of prawns.
He estimated that four hours of processing time was required for this catch. For 15 August 2016, a catch of 500 Kgs of prawns is recorded which, by the witness’s estimate, required 11 hours to process.
The fishing trip in question ended on 18 August 2016 when the Hannah J returned to port at 0.30 hours and landed at 1.30 am having sent prior notification of landing to the Fishing Monitoring Centre.
The witness explained the fishing logs are completed electronically each day before midnight by the skipper who receives a written account of each catch from the designated crew member during the day that is recorded manually by the skipper in his diary.
He told the Court that the logs are liable to be inspected about once or twice a month by the Sea Fisheries Protection Authority (‘SFPA’) when a vessel lands its catch. He also stated that a return must be made to the SFPA after each fishing trip as soon as the information on the contents of the catch is available. The total catch is then set off against the national quota.
In cross-examination, Lord Hendy QC questioned the witness in relation to the veracity of the payslips first received by the Complainant at the hearing before the WRC. The witness admitted that the payslips were false and created after the fact.
Counsel queried in particular the payslip for Week 35, dated 9 September 2016 and the reference therein to payment of a fishing bonus of €4,078.90 to the Complainant. He put it to the witness that there was no provision in the contract of employment issued by the Respondent to the Complainant for payment of a bonus and there was no reference in the Respondent’s schedule of payments made to the Complainant of a payment in this amount.
When asked by Counsel to clarify the basis for the payments made to the Complainant by cheque on 23 May 2016 (for €1,461.00) and on 2 June 2016 (for €2,235.00), the witness told the Court that the payments in question were made as advance payments of wages earned by the Complainant during his period of direct employment.
He expressly denied that they constituted payment for the Complainant’s share of two trips he had undertaken as a share fisherman prior to the start of his contract of service. The witness repeated that the Complainant only commenced working with him/the Respondent as a share fisherman on 11 March 2016 and undertook only 5 trips in total in that capacity.
Counsel referred the Court to the Complainant’s timesheet for the period 12 August to 18 August 2016 submitted at page 30 of the Respondent’s booklet. It is signed by Mr Breathnach although the witness was skipper on the dates in question.
He put it to the witness that a person who was not present on the vessel on the dates in question could not reconstruct the rest times availed of by individual workers or the hours that the Complainant was on watch duty from a diary that only recorded the times at which nets were lowered and raised. It followed, Counsel suggested, that that timesheet (and the other timesheets) as exhibited were completed from memory or on the basis of guesswork for the purpose of the within proceedings. The witness didn’t accept this and continued to maintain that he had recorded all working hours in his diary.
Counsel next referred the Court to the Hannah J’s fishing log for 10 May 2016. Three hauls were completed on that date and 1,122 Kg of fish and prawns were caught and processed. However, the timesheet for that date records the Complainant as having rested for 23 of 24 hours. The witness agreed with Counsel that the record on the timesheet could not be correct.
Evidence of MacDara Breathnach
The witness told the Court that he has been a professional fisherman since 2010 and qualified as a skipper in November 2015 around the time he commenced work on the Hannah J. He gave a detailed description of an average’s day’s fishing for prawns on the Hannah J.
His evidence was that the crew rested in the period between the first ‘shot’ of the day (done between 5.00 and 5.30 am in summer) and the hauling in of the nets with the first catch some five hours later. He also said the crew rested again after they had processed that catch. This took approximately two to three hours according to the witness.
They were not required to work then until the second catch was hauled in. The third catch of the day – brought in at 10.00 pm or 10.30 pm – he said was typically the lightest catch of the day and could usually be processed by the crew in about two hours. After that the boat is relocated to the area in which they intend to fish the following morning and the skipper retires while individual crew members take turns on watch. He said the crew members themselves agree the order in which they take their watch. An average fishing trip, according to the witness, lasted between five and seven days.
The witness then outlined the record-keeping process. He said the logbook had to be completed before midnight and included the following details: start of fishing time, the number of hauls, the general area in which the fishing had been undertaken, the amount of time spent fishing and the yield (Kgs and boxes of prawns and fish according to species).
The witness was asked by the Respondent’s Solicitor about the requirement to give advance notice (‘PNO’) prior to landing a vessel. He told the Court in reply that the requirement is to give four hours’ notice but that he sometimes continued to fish after submitting a PNO when operating close to the shore as it was possible to include the fish caught subsequently in the log.
He was asked specifically about a map of the Hannah J’s movements on 28 May 2016 constructed by Commander Doyle and included in his expert Report. Commander Doyle’s reconstruction suggested that the Hannah J had commenced fishing at 3.30 am on that date. The witness denied this and surmised that perhaps a crew member had moved the vessel to the intended fishing ground while he slept. He also said that he recollected that only three tows were undertaken on that date.
Under cross-examination, Counsel for the Complainant queried the witness’s ability to remember the exact movements of the Hannah J some five and a half years previously. In his written witness statement furnished in advance of the hearing to the Court, the witness had stated that the Hannah J does not fish at night.
Having reminded him of this, Counsel directed the witness to the Hannah J’s fishing log for the period 25 May 2016 to 2 June 2016 and the corresponding entries in the skipper’s diary for those dates which indicated that there was a period of 17 hours between the casting of the first shoot and the final haul of nets on 6 consecutive days followed in each case by up to 3 hours of cleaning and boxing of fish.
Counsel put it to the witness that the fishing log for the period 8 June 2016 to 16 June 2016 showed a remarkably similar pattern. Likewise, the record for 23 June suggested the crew worked for 24 consecutive hours. The record for 29 June suggested that they started work at 1.30 am that morning.
When asked about the rest periods crew members could avail themselves of when fishing at the intensity suggested by the records that had been opened to the Court, the witness stated that each member of crew had at least six hours of rest per day. He said he disagreed with Commander Doyle’s suggestion that the fishing pattern of the Hannah J at the time would have allowed for no more than two hours of rest per person per day.
Counsel then directed the witness to the timesheet records he prepared for the Complainant and the other crew members. The witness admitted that he simply drew in the same lines for each crew member to indicate their resting times.
He put it to the witness that the records were incorrect because the crew worked twenty-one to twenty-two hours per day and they could not have been availing themselves of the rest periods the witness had recorded for them. The witness was then asked about the records he had created in relation to trips skippered by Mr Bendon.
The witness said that Mr Bendon did not use the diary except very rarely. Therefore, the witness completed the timesheets on the basis of information he received verbally from Mr Bendon. The witness confirmed that the timesheets were not signed by the Complainant although the legislation requires this. He said he didn’t know if they had ever been presented to the Complainant.
Counsel then asked the witness if the Complainant had ever worked only thirty-nine hours in one week.
The witness admitted that he hadn’t. Counsel suggested then that if that was the case that the payslips exhibited before the Court were false.
The witness denied any knowledge of the payslips. The witness further agreed that there were no records kept of the time crew members spent on watch overnight or time spent cooking for the crew.
Evidence of Mr John O’Mahony
The Court received an expert report from Mr O’Mahony, prepared at the Respondent’s request. Mr O’Mahony did not give oral evidence in relation to most of his report. He was asked by the Solicitor for the Respondent only about a small number of discrete matters the report touched on.
The witness told the Court that he is an electrical engineer and is licensed to operate electronic equipment aboard a vessel in like manner to a skipper. He is experienced in repairing a range of such systems including the Sodena System, and AIS and GPS systems.
He told the Court that he substantially agrees with Commander Doyle’s Report but disagreed with one assumption made by Commander Doyle in relation to the Marine Traffic System. According to the witness, this system is based on algorithms and does not record the movement of vessels in real time. The witness said that he did not agree that satellite AIS could be used to separate data produced from VMS.
Mr Jim Shalloo
Mr Shalloo is a serving Sea Fisheries Protection Officer. He also prepared a written report for the Court at the request of the Respondent. He was not called to give oral evidence to the Court.
Discussion and Decision
The Respondent’s Records
Having regard to the evidence of Mr Breathnach, and to that of Mr Bendon under cross examination, the Court can only come to one conclusion in relation to the timesheets created on behalf of the Respondent in respect of the Complainant’s working time and periods of rest.
Those timesheets are a work of fiction that cannot be reconciled with the statutory fishing logs returned for the Hannah J for the relevant period, even if those logs are taken at face value.
The expert Report prepared by Commander Doyle which was not materially contested by the Respondent’s witnesses, taken together with Commander Doyle’s very cogent, clear and credible oral evidence, strongly suggests that the fishing logs themselves significantly understated the level of fishing activity undertaken by the Hannah J while the Complainant was employed by the Respondent in the period April to September 2016.
Having considered all of the foregoing, the Court finds that the revised record of working hours constructed by the Complainant himself is substantially consistent with the findings set out by Commander Doyle in his Report in relation to the pattern of fishing activities undertaken by the Hannah J in the period under consideration.
The Complainant’s record of his working hours, as revised by him, is therefore accepted by the Court to be a reliable record.
It is not clear to the Court when the Complainant’s payslips were generated. However, as those payslips were only given to the Complainant at the WRC hearing, there is no evidence before the Court to suggest that they were created contemporaneously with his employment.
It was accepted by Mr Breathnach and not denied by Mr Bendon that the payslips do not accurately record the actual hours worked by the Complainant nor do the records of payments included in them correlate in any way with the payments made by the Respondent to the Complainant.
They appear to the Court to have been generated by the Respondent by reference to the standard form contract of employment signed by the Complainant for the sole purpose of substantiating the manifestly false assertion that the Complainant had worked and been paid for 39 hours per week at the rate of €9.15 per hour, as per the terms of his contract.
Payments made to the Complainant
The Court cannot accept Mr Bendon’s evidence to the effect that the Respondent paid a fishing bonus of €4,078.90 gross to the Complainant as recorded in the payslip dated 9 September 2016.
There is no provision for a bonus payment in the Complainant’s contract of employment. The Respondent has not produced any record to verify that this payment was made and the Complainant denies receiving any such payment.
In fact, at the hearing on 20 October 2020, the Solicitor for the Respondent accepted that no cheque in the amount of €4,078.90 had ever issued from the Respondent to the Complainant. It follows that the P45 generated by the Respondent for the Complainant is as much a work of fiction as the payslips are.
Likewise, the Court accepts the Complainant’s explanation for the payment of €1,000.00 he received by cheque dated 26 August 2016. The Complainant may very well have required this money at that time in order to place a deposit on accommodation he was trying to secure, as suggested by Mr Bendon in his evidence.
This is not inconsistent with the Complainant’s evidence that the money was due to him for additional work, outside the terms of his contract, he had undertaken preparing the Hannah J for painting on 25 and 26 August. Mr Bendon’s evidence in relation to the reason for the payment does not stand up i.e. that it was an advance of wages to the Complainant. The Complainant did not engage in any fishing activity for the Respondent after 19 August 2016 and there was no reasonable prospect of any such work being available to him thereafter so it follows that there was nothing in prospect against which the €1,000.00 could offset against.
It is accepted by both Parties that the Respondent made the following payments by cheque to the Complainant: on 23 May 2016 for €1,461.00 and on 2 June 2016 for €2,235.00. It will be recalled that the Complainant’s evidence is that both of these payments which he accepts he received relate to his share of the catch from two fishing trips he had undertaken as a share fisherman prior to the commencement of his period of direct employment.
This was denied by Mr Bendon. However, no cogent explanation was advanced on behalf of the Respondent that explains in any credible way how the aforementioned payments could have related to work performed by the Complainant under his contract of service.
Having regard to Mr Bendon’s and Mr Breathnach’s admissions with regard to the fabrication of the payslips and other records (including timesheets) exhibited by the Respondent throughout this appeal, and noting that the Court finds Mr Bendon’s evidence generally to lack credibility, the Court finds the Complainant’s explanation for these two payments to be credible and convincing in all the circumstances.
Conclusions based on the Court’s Analysis of the Evidence
In the absence of any credible or accurate record of the Complainant’s working hours created contemporaneously by the Respondent, the Court – having already observed that Commander Doyle’s expert Report finds that the fishing patterns of the Hannah J in the relevant period is credibly consistent with the Complainant’s account of his working pattern onboard the vessel – concludes that the Complainant’s revised written account of his working hours for the period between 26 April 2016 and the termination of his contract of service with the Respondent forms a reliable basis for the complaints which give rise to the within appeal i.e. that the Complainant worked a total of 1256 hours as a deckhand on the Hannah J in that period.
Therefore, in the period comprehended by the claim under the 1991 Act, the Court finds that the Complainant worked a total of 1108 hours.
The P45 generated by the Respondent and exhibited before the Court records the Complainant’s total earnings as an employed deckhand between 26 April 2016 and 9 September 2016 as being €11,215.90.
The Court has already found that the P45 is a fictitious document that does not accurately record the actual payments received by the Complainant from the Respondent. There is not a single strand of credible evidence before the Court that the Respondent paid a fishing bonus of €4,078.90 to the Complainant or indeed any amount by way of a bonus at all.
Tellingly, there is no record of a cheque or bank transfer in this amount. The payslip for Week 37 in which the payment of the bonus is ‘recorded’ has been admitted to a fictitious document also, generated in advance of the hearing before the Workplace Relations Commission, and not given to the Complainant prior to then.
The Court finds the evidence of the Complainant in relation to the payment of €1,000.00 he received by cheque from Mr Bendon on 26 August 2016 to be credible and reliable i.e. that this was a payment in respect of work the Complainant had undertaken in preparing the vessel for painting and this work was additional work performed outside the terms of his contract of service.
As already stated, the Court finds the explanation offered by Mr Bendon for the payment doesn’t stand up. The payment could not have been an advance of wages to the Complainant, as Mr Bendon claimed: the Complainant did not engage in any fishing activity for the Respondent after 19 August 2016 and there was no reasonable prospect of any such work being available to him thereafter. In short, there was nothing in prospect against which the €1,000.00 could be offset against.
There was also a conflict between Mr Bendon’s evidence and that of the Complainant in relation to two of the cheque payments listed earlier in the Determination (i.e. a cheque dated 23 May 2016 in the amount of €1,461.00 and a cheque dated 2 June 2016 in the amount of €2,235.00). The Complainant accepts that he received these payments.
It will be recalled that his evidence is that both payments were for his share of two separate fishing trips he undertook while working for the Respondent as a share fisherman in the period before 26 April 2016. Mr Bendon, on the other hand, claims they were advance payments of wages. Mr Bendon’s evidence is simply not consistent with the documentary evidence the Respondent submitted, albeit which was subsequently admitted by Mr Bendon to be false and inaccurate.
Mr Bendon could not offer any explanation that reconciles the fact, for example, a payment of €2,235.00 was made by cheque to the Complainant on 2 June 2016 but a paylsip was generated to show he received a payment of €339.00 on 3 June 2016. Furthermore, in papers generated by the Respondent’s book-keeper (who was not ultimately called to give evidence under oath but who was present on the first day of hearing), there appears to be a suggestion that cheque payments of €1,461.00 and €2,235.00 (in total €3,696.00) comprised the Complainant’s wages due under his contract of service for the period 26 April to 3 June 2016. However, the (fictitious) payslips record the Complainant’s earnings for that period as being €2,038.62 (i.e. 6 weeks x €339.77).
If Mr Bendon’s evidence and the book-keeper’s notes (admittedly only hearsay, but included in the Respondent’s papers) are taken at face value, they suggest that the Complainant was over-paid by some €1,657.38 in that six-week period. This is simply not credible and not consistent with the generality of the evidence before the Court.
The Court, therefore, finds that Mr Bendon’s evidence is not a credible explanation for the basis of the said payments and finds that the evidence of the Complainant is to be preferred.
On the basis of the foregoing, the Court finds that the Respondent made the following payments to the Complainant in respect of his period of service as a deck-hand on the Hannah J between April and September 2016:
15 June 2016 in the amount of €679.54;
24 June 2016 in the amount of €679.54;
10 July 2016 in the amount of €339.77;
14 July 2016 in the amount of €339.77;
23 July 2016 in the amount of €339.00;
1 August 2016 in the amount of €339.77;
8 August 2016 in the amount of €339.17;
12 August 2016 in the amount of €339.77;
19 August 2016 in the amount of €339.77; and
25 August 2016 in the amount of €339.77.
Payments by electronic funds transfer:
6 September 2016 in the amount of €339.77; and
12 September 2016 in the amount of €339.77.
The Court finds, therefore, that the Respondent has adduced credible evidence in respect of payments totalling €4,755.41 to the Complainant in respect of his period of service commencing on 26 April 2016. Notwithstanding this, the Complainant’s evidence is that he was paid a total of €5,352.75 for the period in question.
The Complainant’s record of hours worked under his contract of service include 148 hours worked between 26 April 2016 and the commencement of the period comprehended by the claim under the 1991 Act (on 12 May 2106) meaning that during the cognisable period he worked 1108 hours.
If it is assumed that the Complaint was paid in full at €9.15 per hour gross/€8.71 net for the 148 hours he worked between 26 April 2016 and 12 May 2016, it follows that he accepts he received a total payment of €3,998.55 gross/€1.289.08 net during the cognisable period when he should have been paid, on his evidence, a total of €10,138.20 gross/€9,650.68 net) for that period.
On this analysis, the Court finds that the Complainant was underpaid by €6,139.65 in the period comprehended by the claim under the 1991 Act. The Court, accordingly, awards the Compensation in this amount under that Act.
The Court has already found that the Complainant worked a total 1108 hours during the cognisable period. There was no evidence adduced on behalf of the Respondent that the Complainant was given any paid annual leave between April and September 2016. It follows, therefore, that he is entitled to be compensated for the annual leave he accrued in that period.
The monetary value of the annual leave accrued by the Complainant is (1108 x 8%)x €9.15 or €811.06. The Court awards that amount and compensation of €2,000.00 to the Complainant under the 1997 Act i.e. a total of €2,811.06 in respect of the Respondent’s failure to grant the Complainant paid annual leave or pay him in lieu thereof on the cessation of employment.
Two public holidays fell within the cognisable period. There is no evidence before the Court that the Complainant received a benefit in accordance with the 1997 Act in respect of either of the two public holidays in question.
He was entitled to receive a day’s pay for each of them. In circumstances where the Complainant has established that he worked 1108 hours in the cognisable period of approximately 14 weeks, his average weekly hours worked were 79.14. One fifth of a working week is, therefore, 15.83 hours. On this basis, the Court awards the Complainant €289.66 in compensation for the Respondent’s failure to give him a benefit in respect of public holidays.
“Primary Case” not properly before the Court
As stated earlier in this Determination, lawyers for the Complainant identified in a written submission made at a very late stage in the within proceedings that the Complainant’s “primary case” was now that he was entitled to be paid for every hour he spent on board the Hannah J.
This case was not put before the Court at the commencement of the within appeal nor (more importantly) does it appear to have formed part of the Complainant’s case at first instance before the Adjudication Officer. It is well-established that an appeal that lies from a decision of an Adjudication Officer to the Labour Court under section 44 of the Workplace Relations Act 2015 isde novoin nature.
Clarke J, as he then was, identified the characteristics of ade novoappeal in paragraph 4.2 of his judgment inFitzgibbon v The Law Society IESC 48 where he states:
"It seems to me that the critical characteristics of a de novo appeal are two-fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first instance body are not automatically properly before the appeal body.”
This Court has also had occasion to consider what is permissible for the parties in such an appeal referred to the Court. In particular, the Court has observed that it is not permissible for an appellant to enlarge their claim on appeal. See for example the Court’s Determination inDawn Country Meats Ltd v HillDWT 141/2012 wherein it held that, in ade novoappeal, a party is entitled to adduce any evidence they wish “provided it is relevant and probative and so long as the nature of the claim remains the same as that dealt with at first instance”. The Court further held that it could not allow the appellant to pursue “an entirely new claim” as, were it to be entertained, the Court “would be purporting to exercise an original jurisdiction that it does not have”.
It appears to the Court that the Complainant herein, by seeking to characterise his “primary claim” as outlined above to be one of payment for all hours spent on the Hannah J, is inviting the Court to exceed its jurisdiction by exercising a jurisdiction to effectively consider a claim that was not advanced by him or on his behalf at first instance. Therefore, having regard to the authorities cited above, the Court finds that this claim is not properly before it.
The Court so determines.