The Workplace Relations Commission in Ireland has decided that the evidence provided by two migrant fishermen – including Naval Service tracking data – was not enough to back up their claims that they worked an alleged 20 hours a day at sea on a Dublin-based prawn boat.
Although the employment tribunal has awarded two workers compensation of €3,500 each for employment law breaches, it has rejected their claims for alleged shortfalls on the minimum wage over the course of five years, in which they had sought €61,649.96 and €65,326.31 respectively.
Fishermen Khaled Elagamy and Mohamed Shokr Ghonim brought complaints under the Payment of Wages Act, the Organisation of Working Time Act, National Minimum Wage Act and the Terms of Employment Information Act against the owner of the fishing vessel Nausicaa, Richard Brannigan.
The men’s trade union, the International Transport Workers Federation (ITF) had secured copies of data held by the Naval Service for fisheries enforcement recording dates, times and locations – records Mr Brannigan’s lawyers insisted were inaccurate and had been given out without his consent.
Michael O’Brien, fisheries organiser with the International Transport Workers’ Federation, said that he had been able to identify “discrepancies” between what was recorded in the database and timesheets submitted by the respondent.
There were four hearings in the matter between September 2022 and January 2024, with the admissibility and accuracy of both the tracking data and the working time records heavily contested by the parties to the case.
Mr Elagamy’s evidence to the tribunal at a hearing in September 2022 was that he and his colleagues worked up to 20 hours a day while the Nausicaa was trawling at its fishing grounds, averaging 17 hours a day for each day at sea with work on shore besides that.
Mr O’Brien asked his client about two dates in May and August 2021 when the employer’s records indicated he had not been at work, but when he said the Nausicaa had been at sea.
Mr Elgamy said he had been at work on both dates and remarked: “How could I be on the boat and not working?”
He said that in addition to hauling the nets and processing the catch, he also had to do his share of watch-keeping and steering the vessel – a duty which he said could last an hour or up to three or four hours.
While at sea, he said he got just seven hours of sleep in the space of a week.
Mr Shokr Ghonim said the working day at sea lasted 18 or 19 hours.
The vessel owner, Mr Brannigan, denied the Minimum Wage Act complaints and insisted that the Nausicaa was limited in its range and endurance, could only spend nine or ten days at sea, and could only manage a certain number of trawls per day.
“On the Porcupine [Bank], all going well… maximum three [trawls]. Anywhere else the max you’d do is four tows – usually three during the day with a long one at night,” he said, adding that it was not always economical.
“Prawns, they don’t like the dark. You’d always have a slack one in the morning. A lot of the time they wouldn’t be worth towing at night,” Mr Brannigan said.
Mr Brannigan’s evidence was that there was downtime for the crew between shots of the net and that it was “not possible” for his crew to be working the hours alleged by the complainant side – estimating the working day on the fishing grounds at 10 to 12 hours at maximum.
Mr O’Brien said the working time records produced by the employer showed “improbable” work
patterns, such as entire days off on Saturdays and Sundays during voyages.
Mr Brannigan attributed this to “dodging” weather and high seas.
He further denied claims by the workers that they had been given blank timesheets to sign.
In his decision, adjudicator Pat Brady said a claim for wages of the magnitude being sought by the workers meant there were “certain problems of establishing the evidence”.
He noted that the workers’ version of events was “hotly contested by the respondent” – but that there was not necessarily a “convincing alternative explanation”.
Mr Brady said the union side “did mount a credible challenge to the reliability of the [employer’s] records”, and if the claims had been brought under the Organisation of Working Time Act there would have been scope to award up to 26 weeks’ compensation.
However, he said the Minimum Wage Act limited any award to arrears of pay, with the burden of proof shifting to the worker, and that the evidence put forward by the workers was not enough to back up the wage claims.
“Even if it seems probable to me that the records are unreliable in some respects, (and it does) the degree of probability that this occurred on every shift the complainant worked back to 2016 has not been sufficiently established in evidence,” Mr Brady wrote.
The workers’ claims that they were scheduled to work between 17 and 19 hours daily was “not believable”, Mr Brady added.
“While I have no doubt that elements of the records of the time worked which were submitted in the evidence were unreliable, and plain wrong, I have not been provided with sufficient hard evidence,”
Mr Brady wrote of the Minimum Wage Act complaints.
However, he awarded both fishermen €2,500 for a breach of the Organisation of Working Time Act for the company’s failure to provide for public holiday entitlements and a further €1,000 each for breaches of the Terms of Employment (Information) Act.
A third colleague of the two workers, Salem Elfeky, attended an early hearing in the matter, but did not come to prosecute his complaint later in the proceedings. His complaints were dismissed by the WRC for lack of prosecution last December.