Background:

The Complainant commenced employment with the Respondent on the 1st of July 2017. The Complainant was employed on a “share” basis and would receive a cut of the profits made on each fishing trip. The Complainant submitted he was subsequently enrolled in the Atypical Scheme for non-EEA Migrant Fishers on the 14th of May 2019. At the point of his enrolment into the Atypical Scheme, the Complainant worked on the Fishing Vessel Verlaine until around the end of October 2018, after which he worked on the Fishing Vessel Ocean Harvester II.

In September 2020, the Complainant suffered a back injury and he needed to take time off to recover. This time extended as the Complainant’s mother fell ill and he returned home to Egypt and came back to Ireland in the New Year. The Complainant stated when he returned to Ireland, the Respondent did not provide him with work or communicate to him that he was dismissed, claiming instead he had left his employment which the Complainant categorically refuted.

Following a data access request which was sent from the Complainant to the Respondent, the Complainant’s Union representative submitted they received an incomplete set of documents which included the first page of a contract dated the 1st of April 2018 and a letter of approval for enrolment into the Atypical Work Permit Scheme from the Department of Justice dated the 20th of April 2018. The documentation also contained a further letter of approval from the Department of Justice dated the 14th of May 2019 approving the Complainant’s engagement by the Respondent for a further 12 months. It was submitted there was a further letter from the Department of Justice dated the 20th of April 2020 approving another renewal of the Complainant’s engagement by the Respondent for 12 months.

The Union submitted on behalf of the Complainant that there is an estimated shortfall in the Complainant’s pay under the Minimum Wage Act totalling €37,196 over the entire period.

The Union asserted had the Respondent wished to disengage the Complainant mid-contract, it could have simply communicated this desire to the Atypical Unit of the Department of Justice, who in turn would have written to the Complainant informing him of the ending of the employment relationship and consequently that he would have 28 days to find an alternative employer under the terms of the scheme. The Union stated that this did not occur and instead he was effectively strung along for several months on his return from Egypt in the forlorn hope that he would be re-engaged.

The Respondent did not attend the hearing.

The Adjudication Officer noted that the Complainant entered into a contract of service under the terms of the Atypical Work Permit Scheme with the Respondent on the 1st of April 2018. The Complainant’s representative stated that the contract stated that the Complainant would be paid for every hour worked and where there were periods of inactivity, the Complainant would be paid on the basis of a 39 hour week.

Based on the uncontested evidence of the Complainant, the Adjudication Officer found the Complainant established he was unfairly dismissed and was not provided with work on his return from Egypt in early January 2021 in line with his contract with the Respondent which ran up to the 20th of April 2021. In the circumstances, the Adjudication Officer found that the Respondent was in breach of their obligations to the Complainant.

However, the Adjudication Officer held that the National Minimum Wage Act required a Claimant to write to their employer seeking a statement of their average hourly rate of pay in order to pursue a claim. As the Complainant had failed to do so, she had no jurisdiction in his pay claim.

Nor could the Adjudication Officer make a ruling under the Organisation of Working Time Act on the claims around rest breaks and alleged excessive working hours, affirming the position that fishers remain excepted from working time regulations by ministerial order.

Outcome:

The Adjudication Officer found the Complainant was unfairly dismissed and ordered the Respondent to pay the Complainant the sum of €6,126 in compensation. The Adjudication Officer further ordered the Respondent to pay the Complainant the sum of €350.00 for breaching the Organisation of Working Time Act for holiday pay owed.

Practical Guidance for Employers:

Employers must be able to justify the dismissal of an employee. An employer must show that the dismissal resulted from one or more of the following causes: (a) the capability, competence, or qualifications of the employee for the work s/he was employed to do, (b) the employee’s conduct, (c) redundancy (d) the fact that continuation of the employment would contravene another statutory requirement, and/or (e) other substantial grounds justifying the dismissal. In the case below, the employee was clearly unfairly dismissed, as the Employer failed to give substantial evidence justifying the dismissal. This case review also demonstrates the importance of communication in the Employee/Employer relationship.

The full case is here:
https://www.workplacerelations.ie/en/cases/2022/november/adj-00033565.html