The Workplace Relations Commission has accepted that a migrant fisherman worked for 427 hours in the space of just one month in 2020 in making an award for holiday pay.
The man told the tribunal he routinely worked 18 to 20 hours a day at sea on the trawlers Verlaine and Ocean Harvester II on fishing expeditions lasting around six days each when he was employed by their operator, OF Fishing Ltd, between 2018 and 2020.
The order for the payment of €350 annual leave money in respect of work in July 2020 was made on top of compensation of €6,476 for unfair dismissal by the company in a decision published this morning by the tribunal.
However, the WRC said it could not rule on further allegations of excessive working hours and the failure to provide rest breaks in breach of the European Working Time at Sea directive – or on a €37,000 claim for alleged back pay as it had no jurisdiction.
The tribunal upheld Habbib Kannas's complaint the Unfair Dismissals Act 1977 against OF Fishing Ltd and found one breach of the the Organisation of Working Time Act 1997 by the firm in respect of holiday pay for July 2020.
The complainant in the case, Habbib Kannas (41), an Egyptian national and father-of-two, originally started work for OF Fishing Ltd in 2017 as an undocumented share fisherman – getting a cut of the profits from each trip, the WRC was told.
His trade union rep, Michael O'Brien of the International Transport Workers’ Federation (ITF), said that when the Atypical Work Permit Scheme for non-EEA migrant fishermen was introduced in 2018, he became an employee of the firm in line with the requirements of the programme.
No representative of the company appeared to meet the complaint when it was called on for hearing in May this year.
Mr O’Brien said that Mr Kannas had been underpaid by €18,626 in 2018 and €18,883 in 2019 – and that in 2020, when his client went home to attend to his sick mother, he was overpaid by €314.04.
The total estimated shortfall, Mr O’Brien said, was €37,196.
In his evidence, Mr Kannas said the skipper "never gave him" the monthly form required by the Department of Justice work permit scheme recording his hours of work.
"It’s a statutory obligation," Mr O’Brien said.
Mr O’Brien said he sought these records in a GDPR request to the company but received nothing back.
In his direct evidence, Mr Kannas described an alleged row with a skipper while at sea before he found himself dismissed.
"I wanted to purify myself by going to the toilet before doing my prayers and he was preventing me... I’m working for 18 hours straight – he wants to take the six hours as well. I was just late five minutes and he doesn’t want me to do my prayers," he said.
"Since then he was treating me different and really badly then," he added.
Mr O’Brien asked his client why he did not complain if he felt he wasn’t being treated right.
Mr Kannas replied that the skipper "was threatening to cancel my contract if I ever complain".
It was the fisherman’s case that he took an extended leave of absence to recuperate from back pain in Egypt with the agreement of his employer in late 2020, which was extended when his elderly mother fell ill.
He made contact with the vessel owner just before Christmas indicating he was preparing to travel back to Ireland, the tribunal was told.
"He’s available to work. He’s basically being fobbed off, strung along and fobbed off even though the atypical work scheme requires pay in off periods," Mr O’Brien told the hearing, submitting text correspondence as evidence.
The Atypical scheme regularised Mr Kannas’s residency in Ireland and required his employer to "pay him on the basis of a 39-hour week on minimum wage", even if there was no fishing, Mr O’Brien submitted.
As his client was in Ireland and available for work for two months, but had his inquiries "rebuffed", Mr O’Brien argued Mr Kannas was due the minimum wage from January up to the end of his contract in April 2021.
In her decision, adjudicating officer Valerie Murtagh found that Mr Kannas had made out a case of unfair dismissal and that OF Fishing Ltd’s owner was "in breach of his obligations" to the complainant.
She ordered the company to pay him a sum of €6,126, a sum equivalent to €10.20 per hour for 15.4 working weeks of 39 hours each in respect of the breach of the Unfair Dismissals Act.
The adjudicator accepted Mr Kannas’s uncontested evidence of working 427 hours in the space of just one month in July 2020 in respect of his annual leave.
Finding the company in breach of the Organisation of Working Time Act on that count, she made a further order for the payment of €350 for annual leave.
However, she wrote 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 Mr Kannas had failed to do so, she had no jurisdiction in his pay claim, she wrote.
Nor could she make a ruling under the Organisation of Working Time Act on the claims around rest breaks and alleged excessive working hours, the adjudicator added, citing a Labour Court ruling affirming the position that fishers remain excepted from working time regulations by ministerial order.
