The Workplace Relations Commission (WRC) has ruled that payments to fishermen left unemployed under the state’s Brexit scrappage scheme will not replace their statutory redundancy rights.

The tribunal was told that if the seven migrant fishermen who brought the case before the WRC were successful, the state could face “a whole host of claims” from Irish and EU fishermen.

The trawler operator, which received two million euros from the taxpayer when it scrapped two ships but claimed it did not have to pay the complainants their statutory redundancy pay when it left them unemployed, will now have to pay them a total of €42,000.

Lawyers for Millbay Fishing Company Ltd had insisted it would be “unfair” to give the men one, in addition to €1,000 in compensation for each year they were at sea on the vessels, under a proposed post-Brexit decommissioning scheme Compensation to be paid for shrinking Irish fishing fleet.

In claims under the Redundancy Payments Act 1967, workers’ union representative Michael O’Brien of the International Transport Workers’ Federation said the statutory redundancy payments claimed were “chicken feed” compared to the €2 million paid to the International Transport Workers’ Federation. Federation was paid out to ship owners by the public under the Brexit Voluntary Permanent Cessation Scheme.

The claims were confirmed in decisions published by the WRC on Tuesday.

The seven fishermen, all from Ghana, are Benjamin Abban, Francis Effah, Francis Egyir, Vincent Kabu, Sampson Koomson, Gordon Kojo Monkah and Kwesi Prempah. All seven had been on board the trawler “St. Clair” and “St. Rose” for Millbay Fishing Co Ltd. worked.

The men were employed under the Atypical Work Permit Scheme, which allowed the Irish fishing industry to employ workers from outside the European Economic Area without creating a pathway to residency rights in Ireland. The court heard that these were employees of the ship owner and not contractors who received a share of the catch.

Millbay received €2,005,885 to decommission the St Clair and St Rose under the Brexit Voluntary Cessation Scheme operated by Bord Iascaigh Mhara in 2022, the union said. The court heard that under the scheme the seven workers were each paid €1,000 for each year they worked at sea on the dismantled ships.

The union stated that in a letter signed by crew members when they received the scrappage bonus payments on September 21, 2022, “the crew compensation resulting from the scrappage bonus was clearly conflated.” [scheme] with the crew’s claims to statutory termination”.

The legal statement goes on to say that when Mr. O’Brien, the union’s representative, called the company’s owner and asked him about legal severance payments for his members, he was “encountered with obscenities” and that a later email “remained unanswered”.

In a statement of claim filed by the seamen’s union, the seven employees claimed that upon termination they would be entitled to amounts of between 3,443.50 and 8,856 euros, depending on their length of service, with the total value of the requested severance payments being 42,550 euros.

Liam O’Flaherty, for the shipowner, said his client “couldn’t keep those millions” because it was common experience that shipowners had to pay off large mortgages and other liabilities once they stopped trading.

The lawyer also relied on the Seafood Taskforce Report issued by BIM in October 2021, which stated that compensation for crew members under the decommissioning program would be “essentially a severance payment.”

He said the report stipulated that such payments would be made “in lieu of severance payments and not in addition to severance payments.”

He said the position taken by the seven would put other predominantly Irish or EU fishermen at a disadvantage as most of them were paid through a share in the profits of the catch rather than through employment contracts. Non-EU citizens cannot take advantage of the Share Fisherman program, he said.

Mr O’Flaherty said Irish and EU fishermen were not entitled to a “second bite of the cherry” and if the seven were successful we could “face a number of cases” where Irish and EU fishermen would say they were discriminated against because they only received a payment “based on their nationality”.

The ITF submitted a response from the Minister for Enterprise, Trade and Employment to a parliamentary question in January 2023 concerning the scrappage scheme and the old work permit scheme.

The minister’s response was: “Irish employment laws apply to all workers – domestic and foreign – on board Irish-registered vessels.”

After setting out the terms of the Redundancy Payments Act, the minister added: “By law, it is the responsibility of the employer to pay statutory redundancy payments to eligible employees.”

In his rulings on the seven cases, Judge Jim Dolan referred to the trawler owner’s argument that it would be “unfair” to make two payments to fishermen under the non-standard work permit scheme and only one to those fishermen paid on a share basis of the catch.

However, he said there was “nowhere in the Brexit scrappage policy guidelines that payments to employees should replace redundancy pay entitlements”.

Mr. Dolan found that the seven dismissal complaints had merit and ordered the company to pay each employee the statutory redundancy payment.

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