A migrant farm labourer who has claimed that he was not paid properly for long hours picking mushrooms has selfies showing himself at work when his former employer's records say he was not in, a tribunal has been told.
The worker, Sruh Ak, is pursuing claims of underpayment and working hours breaches under the National Minimum Wage Act 2000 and the Organisation of Working Time Act 1997 against his former employer, Tiernaneill Mushrooms Ltd.
The Migrant Rights Centre of Ireland (MRCI) advocate has argued Mr Ak's hours were underdeclared to the extent that he was paid less than the minimum wage at times - a position denied by the Co Monaghan-based grower.
Pretty Ndawo of the MRCI told a hearing yesterday that it was "consistent behaviour and a pattern" that Tiernaneill "made workers work longer than they should, and under-reported their hours".
Mr Ak, a Cambodian national, started work for the firm in August 2022 after being recruited by a local agent in his home country, paying €4,000 there in the process of securing a work permit, Ms Ndawo told the WRC at a hearing yesterday. He resigned in June 2024, she said.
She said her client worked harvesting mushrooms, usually starting at 7am, and continuing until "late evening or night" at times.
She said Mr Ak;s personal records showed him working 60-hour weeks at the farm - and over 77 hours in the space of one seven-day period last spring.
However, Ms Ndawo said that timesheets produced by the firm were "irreconcilable" with the complainant's own records. "He took photos that show he worked more hours than were recorded by the respondent," Ms Ndawo said.
She said there were several dates between March and June last year "where there is a huge difference in the hours recorded by the respondent and the complainant".
Asked for a random example by adjudicator Penelope McGrath, Ms Ndawo submitted that in the week commencing Saturday 23 March 2024, Mr Ak's position was that he worked 60.77 hours, but the timesheet kept by his employer recorded just 37 hours work.
His wages for that week had been €522, she added.
"Wages were paid by the respondent based on the 37 hours instead of the 60 to 61 hours that he actually did work," Ms Ndawo said.
The company’s legal representative, Peter Dunlea of human resources consultancy Peninsula Business Services, said Mr Ak's wages were paid on the basis of a "pick rate" and could vary from hour to hour.
Asked by the adjudicator how Mr Ak would be able to demonstrate that he was at work for 61 hours that week, Ms Ndawo said he had recorded his working hours in a calendar which was "backed by pictures he took from the month of March [2024] until the end of his employment".
"They are timestamped photos that coincide with the times that the complainant alleges that he actually worked, and these were taken on site, at the premises, when he started working and when he finished working," Ms Ndawo said.
"The complainant will also give evidence to state there was no clock-in system when he was working for the respondent, so we would like to also know how these hours were recorded by the respondent," she added.
She said that on 27 March last year, Mr Ak had photos of himself coming in to work at 5.52am and finishing work at 5.15pm. "You can see in the background that these photos were taken on site, where he was working for the respondent",
"If you look at the respondent's timesheets, it states that on that day, 27 March 2024… the employer states he never worked that day; there’s no record of him working that day, which is false."
"Do you have an explanation for that?" Ms McGrath asked the company’s representative, Mr Dunlea.
"I only received these [submissions] yesterday, so on the specifics of each day, I don’t have it," Mr Dunlea said.
"The complainant lived relatively close to the site. The site was at no point locked, and so we had no knowledge and no way to discuss these photos," he added.
Asked if the company had a clock-in system, Mr Dunlea said:""There is, it’s called the I-Grow system."
"I can see the direction this is going in. There’s going to be allegations the complainant was photographing himself when he wasn't actually supposed to be there working, and that is going to be why the hours are going to be irreconcilable," Ms McGrath said.
"There was no clocking-in system during his whole employment. There was no training on a clock-in system," Ms Ndawo said, adding that she would be calling multiple further witnesses "who will all say the same thing".
When Ms McGrath examined a payslip for Mr Ak later in the hearing and noted that it did not state the number of hours worked, she said she had "no idea" what rate Mr Ak was being paid.
Mr Dunlea replied that a worker’s rate of pay for the purposes of the National Minimum Wage Act was "not calculated per hour" but "calculated on average" - and that over a four-week period, each of the workers at the mushroom farm received the minimum wage.
Ms McGrath decided the case was too complex for a remote hearing and adjourned the matter pending arrangements for an in-person hearing later in the year.
Mr Ak's further complaints under the working time legislation are in relation the alleged failure to afford him shift breaks, time off between his shifts, and weekly rest periods.
The hearing was told he is one of three people currently pursuing employment rights claims against Tiernaneill before the WRC.
