Complainant

Respondent

Parties

John  Reilly

Atlantic Dawn

Representatives

 Sweeney McHugh Solicitors

IBEC Representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00063295-001

03/05/2024

The Complainant  was employed as a Ship Skipper for approximately 33 years and his position was made redundant. The Complainant stated that his date of termination was around November 2023 (and not April 2023 as alleged by the Respondent) and that he was an employee of the Respondent and not of another entity as alleged by the Respondent. The Respondent denied they were the Complainants employer and alleged that the date of the termination of his employment was April 12th 2023 and therefore outside the 12 months timeframe allowed to lodge a redundancy complaint with the WRC. An initial Hearing into the complaint took place in August 2024 but the Adjudicating Officer was then appointed to the District Court and the complaint was then subsequently reassigned to the current Adjudicator.

The Complainant started working for Atlantic Dawn in June 1991 on the Veronica I. The Veronica I suffered fire damage in 1992. The Complainant was laid off thereafter but re-employed by Atlantic Dawn in November 1994 on the new Veronica. He worked on the Veronica from 1994 until June 2000 when he moved to the Atlantic Dawn. He worked on the Atlantic Dawn between June 2000 until February 2007. He worked on the Felucca between February 2007 to 2011. Although he was appointed to skipper the Felucca in February 2007 the vessel did not sail until September 2007 but the Complainant received a salary payment nonetheless. He returned to work on the Veronica between 2011 and July 2013.

In July 2013 he was appointed as fleet manager of the African Fleet of Atlantic Dawn in charge of five vessels. This involved him overseeing a full restructure of the fleet which had been a loss-making operation when he was appointed. He led a successful restructure allowing the operation to become profitable before political changes prevented the operation from continuing.

The Complainant had originally been employed on a part salary/part bonus dependent upon catch basis but moved to a salary only payment from July 2013.

Following the wind up of the African operation in around November 2020 , the vessels were moved to Las Palmas and the Complainant worked there until he was asked to move to the Atlantic Dawn’s operation in Oman in early 2022 where the Ocean Fresh vessel was moved.

On the 10th of April 2023 the Complainant was advised that there were plans to cut back on the crew on the vessels in Oman and was asked for recommendations of staff that were essential to allow the vessel to be safe manned. On the 11th of April 2023 the Complainant attended a meeting with Karl McHugh and Patrick Reilly (director of Atlantic Dawn) and asked for clarify in relation to his own position. He was advised to “let the dust settle for week and we will have a chat then”.

A number of members of the crew were advised by email on the 12th of April 2023 advising of termination of employment. The complaint also received such an email but also received a phone call from Karl McHugh to advise him from Atlantic Dawn that he should disregard this notice and that he would be further contacted regarding other work.

The Complainant had not heard anything further after the 12th of April and therefore made contact with Karl McHugh, the Managing Director of Atlantic Dawn on the 4th  of May 2023. He advised the Complainant by telephone on that date that Atlantic Dawn  did not have any work for him at that time.

On August 26th 2023 he was contacted to write a letter to assist with a Court Case in Norway.

On August 29th 2023, while he was on holidays in Grand Canaria he was asked by Karl McHugh to check vessels of Atlantic Dawn that were due to be sale.

The Complainant had not received anything formal from Atlantic Dawn and therefore the finally clarify his position with Atlantic Dawn he sent letter dated the 15th of November 2023. Karl McHugh contacted the Complainant on the 20th of November 2023 upon receipt of the letter. He stated that he would have no future work for the Complainant.

Thereafter the Complainant instructed Sweeney McHugh Solicitors who corresponded with Atlantic Dawn on behalf of the Complainant by Letter of the 14th of December 2023. This was responded to by Letter from Ocean Fresh Food AS of the 4th of January. Further letters of the 10th of January and 9th of February 2024 to Atlantic Dawn went without reply. Thereafter the current claim was lodged.

Legal Submissions

The Complainant was working as an employee as opposed to a self-employed or subcontractor. He was required to work at the times and places determined by Atlantic Dawn during his employment. He received all directions with regard to his work from Atlantic Dawn and in most case directly from Karl McHugh the Managing Director. Between 1991and 2013 the Complainant had been engaged on a share fisherman basis. This however was changed in 2013 and was from that point paid on monthly salary basis. Thereafter he did not enjoy any of the usual benefits that would usually occur with share fishermen nor was his income dependent upon the value of catches. He did not receive any payments on the sale of any of the vessels involved as has become typical with share fishermen. Due to the nature of the business the Complainant was from time to time laid off but during such period (except the period from April 2023 onwards) the Complainant received a reduced salary payment. He was not permitted to take up any other employment. He could substitute himself for another person for any of the work assigned to him. His personal service was required.

The Complainant ’s payment at all times was paid by direct debit to his bank account. However, his payslips were issued from a company registered in the Isle of Man called Sea Allicance (IOM) Ltd . He received a monthly salary of €11,000. No taxes were deducted at source and the Complainant filed his own income tax returns with Revenue.

The Complainant had the benefit of a company mobile phone and payment of his bills were discharged by Atlantic Dawn which continued up to and including November 2023.

The Complainant had the use of a Commercial Credit Card from Atlantic Dawn.

The Complainant was held out to third parties as a team member of Atlantic Dawn

The Complainant took his direction regarding work from Karl McHugh of Atlantic Dawn. At no stage did he ever receive any instructions regarding work from Sea Allicance (IOM) Ltd.

Atlantic Dawn Unlimited Company (AD), a company incorporated in Ireland, company registration number 24833, with registered office at Roshine Road, Killybegs , Co Donegal  referred to as ‘’AD’’. The company’s primary activity is fishing and fish processing with an international presence across many countries, one of which is Norway. AD has a 60% shareholding in a Norwegian registered company, Ocean Fresh Food AS, company registration number 994 715 208 with registered office at Vikan Industriomerade 96, 6570 Smola, Norway referred to as ‘’OFFAS’’.

OFFAS assets consist of a factory processing vessel named Ocean Fresh and four fishing vessels, referred to collectivelyas ‘Ocean Fresh’   The fleet operated off the coast of Mauritania from 2013 - 2020 and in Oman from May 2021- April 2023.  Due to poor fishing conditions in Oman, resulting in negative results for the company OFFAS, all operations ceased in April 2023. For the period 2020- May 2021, the vessels were in a drydock facility in Las Palmas, Spain for essential repair and maintenance works

OFFAS has a vessel manning agreement with Sea Alliance (IOM) Ltd referred to here as ‘SA’,  for the provision of seafarers recruitment and placement services of crew members on board the Ocean Fresh

Preliminary Issue to be determined

The Respondent refutes that it is the employer of Mr. Reilly for the purposes of this claim and will set out the reasons below.

Background to the Complaint

The Claimant was employed by SA as Fleet Manager for the vessels collectively referred to as “Ocean Fresh” from July 2013 until his employment was terminated in April 2023 as the operations were no longer viable and company was accumulating significant losses. The respondent employment record for the period 1991-2023 are that the operations in Mauritania and Oman were related to the company OFFAS not Atlantic Dawn.

All crew members on board the Ocean Fresh were employed under contracts for services by an employment agency called Sea Alliance (IOM) Ltd – SA based in the Isle of Man.

SA has a vessel manning agreement with a company OFFAS. The manning services provided by SA are referred to in page 3 – clause 2 of the agreement as ‘Seafarers Recruitment and Placement Services’

The Claimant had a written contract “Seafarers Employment Agreement” with Sea Alliance (IOM) Ltd, which is the company based in the Isle of Man, to work as Fleet Manager on the Ocean Fresh. A copy of this agreement entered into in 2017 was supplied.

The Claimant as well as all other seafarers on board the Ocean Fresh fishing vessel also received a letter from Sea Alliance (IOM) Ltd in 2017 confirming that they were employees of the said company as and from 1st August 2017. A copy of this letter was supplied.

The Claimant was also paid by the employment agency (Sea Alliance (IOM) Ltd) as demonstrated by payslips which were supplied.

The Claimant was not employed by Atlantic Dawn or it associated companies since 2013, therefore not paid through the Atlantic Dawn payroll since 2013, but was paid by the Isle of Man company Sea Alliance (IOM) Ltd and was therefore responsible for his own tax affairs to the Irish Inland Revenue. The claimant requested a letter on an annual basis detailing the number of days at sea.

The claimant’s mobile phone and credit card were in the name of Atlantic Dawn as it was not possible to arrange both services in OFFAS as the claimant was not a Norwegian citizen. The costs incurred were recharged from AD to OFFAS on a monthly basis.

The Claimant is and has always been well aware of who his employer was and Sea Alliance (IOM) Ltd sent a letter dated 4th January 2024 to the Claimant at his request confirming that he was employed by them from 1st August 2017 up until his employment terminated on 12th April 2023. A copy of this letter was supplied.

In December 2023, 10 January 2024 and 9 February 2024, the claimant’s solicitor, Sweeney McHugh Solicitors corresponded with Atlantic Dawn on the right to redundancy. The respondent replied to the claimant directly as advised by the respondent’s solicitor. All related correspondences with the claimant was supplied.

The Claimant was not an employee of Atlantic Dawn in April 2023 and for those reasons his claim under the Redundancy Payments Act, 1967 against Atlantic Dawn is not well founded. The Respondent respectfully asks the Adjudicator to issue a decision in favour of the Respondent based on the facts outlined above.

The Complainant Representative added to his written submission at the Hearing that the Complainant had no signed contract with Sea Alliance, had never been to the Isle Of Man and never spoke to members of Sea Alliance. He also stated that a lot of the Complainants directions came from Mr. Kevin Mc Hugh who was a Director of both Atlantic Dawn and Ocean Fresh Foods and that the Complainant was informed by Mr. Mc Hugh that the email he received in April 2023 did not apply to him and that he should await further instructions.

Evidence

Mr. Reilly gave evidence of how he commenced work in 1991 in Ireland and then later in Norway where he became the skipper of the Veronica in 2000 and was away until 2007 when he returned to Ireland. He took over the Veronica in Norway from 2012 to 2013. He supplied a list of vessels he worked on and stated he was paid by two different companies. He was asked did he take any guidance or directions from the Company in the Isle of Man and he advised no. He was asked had he ever been to Ocean Fresh in Norway and said no. He advised Sea Alliance were involved in Hong Kong and he had been to the Killybegs office of Atlantic Dawn frequently. He advised he received overall directions from Kevin Mc Hugh and day to day directions from Karl Mc Hugh.  He advised he had issues with some family members of Ocean Fresh Directors on board the ship and terminated their employment and this resulted in him not seeing eye to eye with remaining family members. He advised he got payslips from Atlantic Dawn up to 2012/2013 and never got a P45 from them. He advised he did not know why the pay arrangements had been changed. He advised he got no documentation that his employer had changed and advised that as long as he got his wages he had no issues and was not notified of when the payroll provider changed.

He advised Mr. Mc Hugh would tell him when and where he was to work and when he got to Africa he set out the schedule and sent it to Mr. Mc Hugh for approval and they would have a telephone call about it and that he had a lot of leeway in operational matters. He advised he agreed his monthly salary with Karl Mc Hugh and was constantly in communication with him. He advised he received no direction from anyone in Ocean Fresh in Norway. He advised his only comment re payslips were when he needed them for tax returns. He advised he sent payroll data for staff back to the office in Killybegs and he never contacted Ocean Fresh re payroll matters. He advised the credit card was in case he needed parts or for travel.

Mr Reilly was asked by his Representative did he get the April 2023 email and he replied yes. He advised he went to the office and met Mr. Mc Hugh and other office staff on April 11th  to discuss letting the crew go and was told by Mr Mc Hugh regarding his own situation  “to let the dust settle and Il contact you and sort it out”., He advised it was a bit of a shock then to get the April 12th email. He advised his role was a Skipper in Killybegs and a discussion took place about a role in West Africa. He advised his job was Fleet Manager for the main ship and three supporting ships for Atlantic Dawn and he had responsibility for all aspects of the job, including payroll, fuel etc and only had to contact Mr. Mc Hugh if there was a serious issue. He advised the meeting in April was a general chat about everything going on and that he got a call in May 2023 that there was no work for him at that time but did not speak up as he was used to the work being seasonal. He advised he had been on a “share” basis income but had been put on a monthly salary in the last few years. Mr. Reilly was asked by his Representative was he asked to give back his mobile phone and company credit card at that time and he advised he was not. He advised there was a conversation about changing a phone number in September and there was no conversations except about a contribution to a Court Case involving  the Norwegian Directors and he supplied a detailed statement for that case. He advised a letter was sent to Mr. Mc Hugh in November about his status when he saw ships sailing from Killybegs going fishing. He advised this as the time he realised it was over, not before. He advised his Solicitors wrote twice to Atlantic Dawn, that he had relied on his conversation that he was to disregard the April dismissal email and he contacted Sea Alliance once and that Mr. Mc Hugh never contacted him.

Mr. Relly was cross examined by the Respondent Representative, Ms. Fiona Egan of IBEC. He confirmed he had talks with Mr. Mc Hugh on April 10/11 2023 and that he was sent an email the following day but he stated he was told to leave the dust settle. He agreed he was aware of the ongoing situation with work and he agreed he and 4 others worked on a vessel owned by the Ocean Fresh Norwegian Company. He advised he understood the vessel was under verbal contract to Mr. Mc Hugh since 1993. He confirmed he had a contract with Sea Alliance and he advised he had been the skipper of Atlantic Dawn but was paid from Hong Kong. He was asked to confirm Mr. Mc Hugh told him that no work was available for him on May 4th 2023 but Mr. Reilly said he was told there was “no work available for him at this time”. Mr. Reilly was asked was he ever paid after April 12th 2023 and he said no and in reply to further cross examination he advised he never asked for payment but did some work while he was on holiday in Spain and he never required payment for that. Mr. Reilly was asked to confirm his credit card was cancelled in April 2023 and that the retention of his phone was an oversight. Mr. Reilly was unaware it was  cancelled. Mr. Reilly said he was happy to do no work in the summer as he understood he would be resuming work in the Winter. Mr. Reilly confirmed he spoke to a Norwegian Director of Ocean Fresh in November about his situation. Mr Reilly was asked had he ever got tax advice and he stated yes he had a Tax Advisor, a Mr. Moloney and they went back years and confirmed that they sought a letter from the Hong Kong company in 2016 for his tax returns. He was asked to confirm he had a conversation with Ms. Christine Sweeney in 2017  regarding his change of employer and it was put to him that he was very aware who was his employer as it was set out in his Booklet of Documents and that this was set out in correspondence. He stated that he did not know anyone in the Isle of Man company but it was put to him that his Accountant did know the IOM company and he understood the relationship. It was put to the Complainant that he had interactions with the Directors of Ocan Fresh  as evidenced by minutes of meeting and emails in October 2017. He advised that he was not aware a Director of Ocean Fresh was going to be at a meeting at that time.

Ms. Christine Sweeney gave evidence she was the Chief Financial Officer of Atlantic Dawn and she worked with a number of related companies. She advised that Sea Faring agreements were the standard in the Industry for a number of years and she was the main contact with the Complainant. She advised she would do financial work and recharge Ocean Fresh for the work and costs. She stated she got the crew to sign employment contracts with Sea Alliance and Mr. Reilly did not sign his. She stated she checked payroll, bonus due and days worked for staff. She advised Mr. Reillys costs were recharged to Ocean Fresh and the crew had every right to contact Sea Alliance if they needed data for mortgages etc and she would sometimes ask Sea Alliance to send letters to crew members. With regard to the provision of the credit card and phone through Atlantic Dawn she advised as the Complainant was not a Norwegian national this was the best way to facilitate it and any costs incurred were recharged to Ocean Fresh. She advised the lock down of the phone was overlooked until November 2023. She advised the Complainant asked her to get a letter from Sea Alliance in 2023 that he was no longer an Employee. She advised she received a letter from Sea Alliance in April 2023 that the Complainant  was no longer an Employee of theirs and she paid outstanding wages due on April 27th 2023.

Ms. Sweeney was cross examined on her evidence and asked did Atlantic Dawn pay the Complainants wages. She said there is an overlap and they charge Ocean Fresh a management charge. She was asked why Ocean Fresh would be charged if an employee was employed by Sea Alliance and she stated there was an agreement in place to refund Sea Alliance from Ocean Fresh. Ms. Sweeney was asked if Sea Alliance was the Employer who determines the pay amount of the employees and she advised it was sent to Atlantic Dawn and then to Sea Alliance and she was questioned if the employer should have control of the amount paid. She advised they charged for the administration of the payroll and an annual fee.

Ms. Sweeney was asked how do Sea Alliance pick the crew and she advised it was normally through recruitment agencies in Ireland and Lithuania. She advised Ocean Foods picks the crews and agreed that Sea Alliance does not give any day to day directions to staff.  She was asked is there any management from Sea Alliance on board the vessels and she replied no. She advised new staff have the option of picking their employer between Ocean Fresh or Sea Alliance. She advised she does work on behalf of 20 companies involved. She confirmed that at certain points Mr. Reily was an employee of the Respondent but was with Sea Alliance since around 2013. She advised that direction came from Ocean Fresh and she did not get day to day instructions from Sea Alliance. She advised the Complainant was told to handle his own tax affairs but he sometimes sought assistance with his tax affairs. Ms. Sweeney was asked did she contradict the evidence of the Complainant that he got his day to day instructions form Karl Mc Hugh, a Director of the Respondent and she replied she got his direction from him as a Director of Ocean Fresh. She advised there were lots of meetings with the Ocean Fresh Directors and there was a 40% external shareholding. She advised it was common knowledge Mr. Mc Hugh acted on behalf of Ocean Fresh. Ms. Mc Sweeney was asked how many people would have treated the Complainant as an employee of Sea Alliance and she advised he would have been treated as Ocean Fresh.

The Respondent closed with their objection that the Complainant was either an employee of Sea Alliance of Ocean Fresh but not the Respondent.

Findings

There were four main issues for consideration in this complaint to determine the Complainants employment status and his entitlement to redundancy. Firstly, the preliminary issue of whether the claim is within time, second who was the Employer, thirdly who paid the Complainant his compensation and lastly what is the Complainants social welfare contributions situation to enable him quality (or not) for statutory redundancy, which is paid by the Employer.  

The complaint was submitted to the WRC on May 3rd 2024 and the Respondent argued his employment ceased on April 12th 2023 and the Complainant argued his employment ceased on November 20th 2023. The various arguments on this issue are set out above of the respective positions.

The Law on Time-limit on claims for redundancy payment.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

I find that the Complainant  was notified by email on April 12th 2023 that his employment was ending but he reasonably considered his employment to have continued on until November 2023 based on a uncontested conversation with one of the Directors and his previous lay off situations and him being asked to do some limited work in the interim until it was finally clarified on November 20th 2023 that the employment had ceased. The complaint was submitted to the WRC on May 5th 2024.and I determine therefore that the complaint is within 52 weeks of the date of termination of employment, November 20th 2023.

As a pure observation, while this conclusion on the time limit gives the benefit to the Complainant  of determining the complaint to be lodged within 52 weeks of his termination and allowing the substantive issue to be decided upon, and for the sake of clarity the decision on time limit is purely based on the evidence provided, it is easily conceivable that were I to decide April 12th 2023 as the employment cessation date,  there would be nothing to prevent the Complainant  resubmitting a complaint (and thus after the expiry of 104 weeks) and seek a Hearing and Decision under Section 24 (3) on the basis the identity of the Employer was a core issue, as is maintained throughout this complaint, and thus involving the Parties in further time and cost to get a Decision on the matter.

I have considered the evidence of the parties and conclude that the Complainant was under the direction of Mr. Mc Hugh in his capacity as Director of Ocean Fresh Foods and not the Respondent.  No contract of employment with the Respondent was provided to the Hearing. The Complainant  worked on a ship that was owned by Ocean Fresh Foods and not Atlantic Dawn. The fact that Mr. Mc Hugh was a Director of both Atlantic Dawn and Ocean Fresh Foods complicated matters but I am satisfied from the evidence that the Complainant  received his instructions from Mr. Mc Hugh in his capacity as Director/Owner of Ocean Fresh Foods and not the Respondent.. Ms. Sweeneys evidence of the charge method from Atlantic Dawn to Ocean Fresh was also key to the decision on the Employer. A contract between Ocean Fresh and Sea Alliance to supply staff was supplied which included supplying staff to the Ocan Fresh vessel. A contract of employment between the Complainant and Sea Alliance (IOM) was supplied to the Hearing., albeit one not signed by the Complainant. This explicitly states that Sea Alliance (IOM) took over the Complainants employment from August 1st 2017 and clearly states he will be working on board a ship owned by Ocean Fresh Foods SA.. The notice of termination on April 12th 2023 was issued by Mr. Mc Hugh under the Atlantic Dawn logo but this appears to be outweighed by all the other evidence of who was the Employer The key evidence therefore supports the Decision that the Complainant was not an employee of the Respondent.

The Complainant was paid by Sea Alliance (IOM) Ltd, an Isle of Man company and no record of salary payments directly from Atlantic Dawn were provided to the Hearing. This cost was then recharged to Ocean Fresh, which was the ultimate payer of the cost of the Complainants salary. This shows his compensation/remuneration arrangement was not with the Respondent and therefore an essential element to determine an employment relationship is missing from the alleged employment with the Respondent.  

Lastly in order to be eligible for a redundancy payment a person must have paid at least two consecutive years of Class A PRSI contributions (or similar) in the years before they were made redundant. As part of my investigative role I asked the Complainant to get and submit his PRSI contributions record from Social Welfare, which he did post the Hearing, and the contributions he made (when made) do not satisfy the requirement for statutory redundancy.. His PRSI record also showed the last A Class contribution to be paid in 2013 and he paid Class A contributions in 11 of nearly 40 years employment.. This information was sent to the Respondent Representative who commented as follows; “It is our respectful submission that the document provided by the Claimant does not support the fact that the Claimant was in insurable employment for the purposes of a statutory redundancy claim. The Claimants record shows no Class A contribution since 2013. Because the last four years show the Class of contribution of Class S and Class M contributions, the Claimant does not meet the statutory definition of an “employed contributor” fully insured for all benefits pursuant to Section (7) (1)(b) of the Redundancy Payments Act 1967 and Section 13 (1) of the Social Welfare Consolidation Act 2005. The Respondent submits on this basis that the Claimant does not meet the criteria as set out under the legislation and the claim must fail.”  I concur with the Respondents position that a person with this contributions would not be eligible for statutory redundancy as a person must have two consecutive years of Class A type contributions prior to the termination of their employment to be eligible for statutory redundancy.

Given all the above factors I determine that the Complainant was not an employee of the Respondent and did not have the PRSI contributions to satisfy the requirement to be eligible for a statutory redundancy payment and therefore the Respondent have no liability for a statutory redundancy payment.

The Complainant is not entitled to a statutory redundancy payment from the Respondent. The appeal is not well founded and fails.

No entitlement