ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034180
Parties:
| Complainant | Respondent |
Parties | Mohamed Ahmed Moustafa Hamouda | D&N Kirwin |
Representatives | Michael O'Brien | Paul Russell |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045133-001 | 09/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045133-002 | 09/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045133-003 | 09/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045133-004 | 09/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045133-005 | 09/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00045133-006 | 09/07/2021 |
Date of Adjudication Hearing: 28/09/2022
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained to the parties the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24. The parties indicated they understood the procedural changes and wished to proceed with the hearing. The complainant and the respondent Mr Niall Kirwan gave evidence on oath/affirmation, and the parties had the opportunity to test the evidence by cross examination. The complainant was assisted by Mr Salah an interpreter provided by the WRC.
Background:
The complainant commenced working with the respondent in June 2018. He worked as a fisher on one of the respondent’s vessels. He last worked for the respondent in December 2020. The complainant was, for most of his employment, employed on an Atypical Work Permit Scheme for non-EEA Fishers. The first letter of approval from the Department of Justice authorizing the complainant entry into the Atypical Scheme was issued on 29 November 2018. Therefore, the complainant claims that between June and December 2018 he worked on terms similar to ‘share’ fishers. From December 2018 to December 2020 the complainant was employed on the Atypical Work Permit Scheme for non-EEA Fishers.
The complainant submitted his complaints to the Workplace Relations Commission on 09 July 2021. The complainant claims he did not receive paid annual leave or public holiday entitlements; he did not receive a daily rest period, did not get breaks and was required to work more than the maximum permitted number of hours. In addition, the complainant claims he received a statement of his core terms which contained false and/or misleading information.
The respondent rejects all the allegations.
Both parties submitted extensive information about the movement of the trawler and fishing times.
Preliminary Issue
The complainant applied for an extension of time in accordance with Section 41(8) of the Workplace Relations Act. The respondent objected to the granting of any extension of time. |
Summary of Complainant’s Case:
The complainant submitted six complaints to the WRC. The first five complaints were submitted pursuant to section 27 of the Organisation of Working Time Act, 1997. The sixth complaint was submitted pursuant to section 7 of the Terms of Employment (Information) Act, 1994. CA-00045133-001 – Annual Leave The complainant claims he did not receive his paid annual leave entitlement. The complainant contends that in the statutory annual leave year ending 31 March 2019 he was ‘in contract’ for just over a quarter of the year. Therefore, he claims he should have received one weeks’ paid leave. In the statutory leave year ending 31 March 2020, the complainant received two weeks’ paid leave. He therefore claims to be due payment for two outstanding weeks. The complainant claims he was not paid for leave he took between late August and early November 2020. In his oral evidence the complainant stated that he never took holidays in Ireland. He stated that he returned home for holidays, but he was not paid during that time. CA-00045133-002 – Public Holidays The complainant claims he did not receive his public holiday entitlements. The complainant states that there was no recorded provision in any payslips for public holidays. He claims he was due payment for 19 public holidays that occurred during his employment with the respondent between 2019 and 2021. In 2020, immediately prior to leaving employment, the complainant claims he was due payment for four public holidays. CA-00045133-003 – Daily Rest Periods The complainant claims he worked ceaselessly while aboard without adequate time for breaks or sleep. The complainant claims that when on board the working day in the fishing ground ranged from fifteen to twenty hours. Breaks and rest periods were not observed. The complainant and his colleagues had to process every haul of prawns before the following haul. The process involved tailing, grading, washing boxing and freezing each prawn by hand. The complainant estimated the crew processed 8 to 10 boxes of prawns, each box containing 26/30kg. The complainant in his evidence stated that when on board the captain would fill in the time sheet and each fisher had to sign by putting an x on the sheet. The complainant stated that he did not understand the hours that were recorded for him. He stated that in addition to processing prawn there were other duties, processing white fish, cleaning and watch duties during steaming periods to the fishing grounds. CA-00045133-004 – Breaks The complainant claims that he did not get breaks during his working day on board. The complainant claims that when they arrived at the fishing grounds the net was shot and trawled for approximately four hours. From the time of the first haul the work was intense and ceaseless. The complainant in his evidence stated that it was impossible to process a haul in less than four hours and if you didn’t finish the next haul would be in on top. So, breaks were not possible. CA-00045133-005 – Maximum Permitted Hours The complainant claims he was required to work more than the maximum number of hours. The complainant claims that working days ranged from fifteen to twenty hours and that he weekly maximum working hours permitted was not observed. The complainant in his evidence could not recall exact working times but stated that the net could be shot up to four times per day as a result they worked nonstop to process the catch. The complainant claims that there was a shortfall in pay for hours worked as follows: 2019 – 6,419.00 2020 – 2860.20 Total – 9279.20 CA-00045133-006 – Terms and Conditions of Employment The complainant claims that he received a statement of his core terms which deliberately contained false or misleading information. He claims that his pay and conditions were at odds with the standard contract that is issued to non-EEA fishers under the atypical scheme. It is claimed that the respondent did not honour that part of clause 6 of the standard agreement that obliges the employer to pay the fisher at least 39 hours at minimum wage during periods of boat tie up or inactivity. In addition, the statement has an insertion that claims that Sunday pay is effectively ‘incorporated’ into the hourly rate of pay. |
Summary of Respondent’s Case:
The respondents are owners and skippers of three fishing trawlers. The complainant worked on the trawler Courageous from 2018 until the end of 2020. The respondent completely rejects the claim that the complainant worked excessive hours. The respondent submits that as required by the Atypical Work Permit Scheme for Non-EEA Fishers records of employee’s hours of work or rest were maintained. The time records were completed by the crew and counter signed by the skipper. The records of the complainant work times while working on board Courageous were maintained by the skipper Mr Robert Byrne. Unforturately the records were destroyed when the skipper and crew of the Courageous changed in April 2021, prior to the complaints being submitted to the WRC. The respondent asserts that the record sheets were completed by the complainant and counter signed by the skipper. The complainant was not put under any pressure to sign inaccurate time sheets. The respondent contends that the complainant was not available for all trips between June 2018 and December 2020. During that time the complainant took considerable periods of time off to return home and for personal reasons. As a result of the Covid-19 pandemic the vessel was tied up on 27 March 2020 for over two months. In accordance with Government guidelines the respondents advised the complainant to make an application for the Pandemic Unemployment Payment (PUP). The complainant was in receipt of the PUP payment from April until December 2020. As the complainant was receiving this payment from the Department of Social Protection he could not legally work during that time. The respondents acknowledge that the complainant did go on a trip on 09 August 2020 as he had advised the skipper that he was available. The respondents could not pay him for that trip when they discovered he was still receiving the PUP payment. The respondent submits that in 2019 the complainant was paid in advance on two dates. He was paid €500 on 02 April 2019 and €2,000 on 25 June 2019. Even though the complainant took time off in 2019 he was in effect paid for 52 weeks that year. In respect of paid leave, the respondents submit that the complainant was overpaid by €1,074 in 2019 and by €336 in 2020. The respondents submit that during the lay-off period in 2020 the complainant could not accrue annual leave entitlements. The respondents submit that the Atypical standard contract entitles an employer to deduct €54.13 per week for board and lodging. The respondents submit that they did not make any deduction from the complainant for board and lodging. The respondents reject a claim in the complainant’s submission that his payments were frequently late. In 2019 the complainant was paid in advance on 16 of 22 pay periods and was given an advance of pay of €2,500 on 25 June 2019. Any delay in payments was minimal and arose due to the respondents being at sea themselves. The respondents submit that based on their years of experience of fishing the average processing of whole prawns or prawn tails per hour is not as claimed by the complainant. If the complainant’s claim was accurate the vessel would have to stop fishing as they would not have time to process the catch. The complainant’s claim that the processing took three times the usual time is rejected. The respondents reject the claim that the complainant did watch duty. Only crew that are fluent in English were utilised to keep watch, this was for safety reasons. Mr Kirwan gave evidence, based on his long experience as skipper and owner, of a typical fishing trip the type the complainant worked. Mr Kirwan was not the skipper on board the Courageous when the complainant worked on that trawler. The respondent submitted calculations of average working hours per day per crew member for each fishing trip that the complainant was on board. These calculations are based on the actual catch landed by the vessel and the average processing times at sea, allowing for breaks for the crew. The average working hours per day are considerably less than that claimed by the complainant. |
Findings and Conclusions:
The complainant and the respondents each provided detailed submissions with information about vessel movements, steaming time, distances and details for specific trips. I have carefully considered all submissions in the context of the six specific complaints submitted. Preliminary Issue The complainant’s complaints were received by the WRC on 09 July 2021. The complainant had commenced employment with the respondents in 2018 and last worked on board their vessel Courageous on 12 December 2020. Concerning the presentation of complaints section 41 (6) and (8) of the Workplace Relations Act, 2015 provides as follows: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The complainant’s representative applied for an extension of time as provided for in section 41(8) of the Act. It was submitted that there was reasonable cause for the delay in submitting the complaints. The complainant has a very limited grasp of English and used to Google translate to assist him in communicating with his employer and union representative. It was submitted that the complainant had no access to advice on how to vindicate his rights prior to being advised by a peer to contact the ITF. The complainant’s representative cited the decisions in ADJ-00012683, ADJ-00018491 and ADJ00018480 in support of the application. In his evidence the complainant acknowledged he had received a document in his own language about how to make a complaint. But he stated he had to keep working, he could not afford to complain and be put off the ship. The complainant stated that in dealing with his bank accounts and tax affairs he was helped by a friend. The complainant confirmed that he had not worked in January 2021. He sated this was because he had asked for his wages and was told to take a holiday so he decided he would not work for the respondent anymore. The respondent’s representative submitted that an extension of time should not be granted. It was submitted that the Department of Justice and Equality had written directly to the complainant setting out his rights and how to make a complaint to the WRC. That letter also confirmed that a letter of approval under the scheme would issue to all crew members in their native language explaining their employment rights and how to make a complaint if their rights are violated. The complainant therefore was aware of his rights and the procedure for submitting complaints about any alleged breach of his rights. The Law The complaints were received by the WRC on 09 July 2021. The relevant period for the presentation of the complaints is 10 January to 09 July 2021. The complaint did not work for the respondents during the relevant period. Section 41(8) provides that an adjudication officer may extend time if the failure to submit the complaint within 6 months of the date of contravention was due to reasonable cause. The Labour Court considered the issue of reasonable cause in Cementation Skanska Limited v Carroll DWT 0338. The Court stated that “in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances know to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” There is therefore a two-stage test in determining if there is reasonable cause to grant an extension of time. It is for the complainant to identify the reason for the delay and to show that the reason relied upon provides a justifiable excuse for the actual delay. The complainant must also establish a causal connection between the reason submitted for the delay and his failure to present the complaint in time. It must also be established that the complaints probably would have been submitted in time were it not for the factors relied upon as being reasonable cause. It was submitted that the complainant had a very limited grasp of English. I am satisfied that the complainant has basic English and needed the assistance of an interpreter at the hearing. However, he was provided with information about his rights and how to make a complaint in his native language. In the cases cited I note that the complainants did not have information in their own language about how to make complaints about a breach of their rights. In his evidence the complainant stated that he had dealt with banking and tax rebate issues with the assistance of a friend. It was submitted that the complainant had no access to advice on how to vindicate his rights prior to being advised by a peer to contact the union. I accept that the complainant was assisted in making his complaints by his union representative, but I note that he had received information about his rights and how to make a complaint in his native language in 2020. The complainant in his evidence stated that he could not afford to be put off the ship and therefore he did not make a complaint during his employment. The complainant may have been wary of making a compliant while working for the respondent, but he ceased work in December 2020, and the complaints were not submitted until 09 July the following year. The complainant had received information in his own language about his rights and how to make a complaint about a breach of his rights. He did not provide any information about any attempts to make a complaint in the months after he left employment or attempts to seek the help in making a complaint. I accept that the complainant had limited English, but it was clear from his evidence that he had been able to find a way to deal with banking and tax issues during his employment. I accept that the complainant may have had reservations about submitted a complaint against the respondent during his period of employment due to his contractual status as a non-EEA fisher. However, once he had left employment there was no reason to have a reservation about submitting a complaint against the respondent. Given that the complainant had information in his own language about how to make a complaint to the WRC and that he had left the employment of the respondent in December 2020 I am satisfied that he has not established that there were reasons that prevented him for submitting his complaints within the statutory time limit. Having carefully considered the reasons provided for the failure to submit the complaints within 6 months of the date of contravention I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-001 Complaint about unpaid annual leave. Section 20 of the Act provides the following concerning timing and payment for annual leave: 20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, … The date of contravention in relation to failure to provide statutory annual leave was considered by the High court in Royal Liver Assurance Ltd v Macken [2002] 4 IR 427. The Court held that the statutory leave must be granted within the leave year or, with the consent of the employee, within 6 months of the end of the leave year. The statutory leave year ends on 31 March. Claims relating to leave in the year 2019/2020 could only be entertained if submitted within 6 months of 31 March 2020. In the leave year 2020/2021 the complainant left the employment of the respondent in December 2020. On cesser of employment s.23 of the Act provides that (1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. The claim relating to annual leave in the statutory leave year 2020/2021 would have to be submitted within 6 months of the date the complainant ceased employment in December 2020. The complaint was received by the WRC on 09 July 2021. The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints.
CA-00045133-002 Complaint about unpaid public holidays. I note that the date of contravention in the case of public holidays is the date of the public holiday itself. Held by Lavan J in Royal Liver Assurance Ltd v Macken [2002] 4 IR 427. The last public holiday before the complainant left employment with the respondent occurred on and 31 October 2020. A complaint in relation to that holiday would have had to be submitted within 6 months of that date. This complain was received by the WRC on 09 July 2021. The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints.
CA-00045133-003, 4, 5 Complaints concerning working hours. At the time of hearing these claims were not included under Section 3(2)(a)(i) of the Act. However, the High Court in Ahmed Elganagy v Galopin Trawlers [2023] IEHC 544 held: “This Court considers that in order to construe the 2003 Regulations in a manner compliant with European law it is necessary to assume that, although intention to extend the provisions of s.27(1) and (3) of the 1997 Act to breaches of Article 6 was not expressed, this must be implied as a matter of public law necessity to give full effect to European law in much the same way as courts constructing contracts in private law may imply what is not expressly stated in order to give such contracts business efficacy.” Consequent upon that judgement the AO would have jurisdiction to adjudicate on these complaints if they were received within the time limit contained in the Act. These complaints were submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaints relate. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints.
CA-00045133-006 Complaint concerning the Terms and Conditions of Employment. The complainant claims that the pay and conditions of work as described in his contract wee at odds with the standard contract that is issued to non-EEA fishers under the atypical scheme. A complaint such as this may subsist throughout the period of employment. Therefore, a complaint may be submitted within 6 months of the termination of employment. The complainant ended his employment in December 2020. The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complainant submitted six complaints to the WRC. The first five complaints were submitted pursuant to section 27 of the Organisation of Working Time Act, 1997. The sixth complaint was submitted pursuant to section 7 of the Terms of Employment (Information) Act, 1994. I have carefully considered the submissions and the oral evidence presented in this case concerning the preliminary issue of an extension of time pursuant to Section 41(8) of the Workplace Relations Act 2015 and I decide as follows: CA-00045133-001 – Annual Leave The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-002 – Public Holidays The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-003 – Daily Rest Periods The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-004 – Breaks The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-005 – Maximum Permitted Hours The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints. CA-00045133-006 – Terms and Conditions of Employment The complaint was submitted after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. I decide the complainant has not established that there is a reasonable cause that both explains and justifies the delay in submitting his complaints. I decide to refuse the application to grant an extension of the time for submission of these complaints.
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Dated: 10th March 2026.
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Preliminary Issue Extension of Time |