[2016] IEHC 152
THE HIGH COURT
[2012 No. 2012/9535P]
BETWEEN
JOSE MONTERIRO DA SILVA, NUNO PERDRO GONCALVES LOPES, DAVID SARAIVA MATIAS, ANTONIO BARBOSA MOREIRA, JOSE FRANCISCO OLIVEIRA DA SILVA, JORGE DA SILVA LUIS, JOSE TEXEIRA GONCALVES, ANTONIO JORGE OLIVEIRA BESSA, FRANCISCO DA COSTA FERRIERA, JOSE LUIS FREITAS LIMA
PLAINTIFFS
AND
ROSAS CONSTRUTORES S.A., CONSTRUCOES GABRIEL A.S. COUTO S.A. & EMPRESA DECONSTRUCOES AMANDIO CARVALHO S.A. trading under the style and title of RAC CONTRACTORS and/or RAC EIRE PARTNERSHIP
DEFENDANTS
[2012 No. 9537P]
BETWEEN
CARLOS MANUEL MIRANDA, ALFREDO MARTINS RODRIGUES FERNANDES, VICTOR MANUEL MARQUES DE OLIVEIRA, MARIA PIEDOSA RIBEIRO CARDOSA GASTALHO, FRANCISCO PEREIRA MARTINS, JOSE MARIA COEHLO BARBOSA, CARLOS JOSE LONGA
PLAINTIFFS
AND
ROSAS CONSTRUCTORES S.A., CONSTRUCOES GABRIEL A.S. COUTO S.A & EMPRESA DECONSTRUCOES AMANDIO CARVALHO S.A. all trading under the style and title of RAC CONTRACTORS and/or RAC EIRE PARTNERSHIP
[2012 No. 9538P]
BETWEEN
ARMANDO AGOSTINHO ALVES DA SILVA, ALVARO ABILIO QUEIROS COEHLO, HELDER FIGUEIREDO, MARIO AUGUSTO RAMALHO GASTALHO, SAMUEL FILIPE DA SILVA OLIVERIA, JOSE ANTONIO FONSECA RIBEIRO, ALBERTO BESSA LEITE, LUIS RODRIGUES DIAS MOURATO, JOSE DUARTE MAGALHAES, JOSE MARIA MARTINS VELOSO
PLAINTIFFS
AND
ROSAS CONSTRUTORES S.A., CONSTRUCOES GABRIEL A.S. COUTO S.A. & EMPRESA DECONSTRUCOES AMANDIO CARVALHO S.A. all trading under the style and title of RAC CONTRACTORS and/or RAC EIRE PARTNERSHIP
DEFENDANTS
Judgment of Mr Justice David Keane delivered on the 18th March 2016
Introduction
1. In these three linked sets of proceedings, the primary relief sought by each plaintiff is damages for the alleged breach of his or her employment contract with the defendant partnership.
Background
2. The 27 plaintiffs are Portuguese. With one exception, they are all construction workers. The fourth plaintiff in the second set of proceedings, Maria Piedosa Ribeiro Cardosa Gastalho, is married to another plaintiff and was employed by the defendants as a cleaner.
3. The defendants are three Portuguese companies that traded in Ireland as a partnership (“RAC Eire”), having its registered office at Mill House, Henry Street, Limerick. RAC Eire traded in the State as a contractor or sub-contractor to a consortium known as Bóthar Hibernian, itself comprised of three companies: Mota-Engil (Portugal); Michael McNamara and Company; and Coffey Construction Limited. In November 2006, Limerick County Council awarded Bóthar Hibernian the public works contract to design and build “the N7 Nenagh to Limerick High Quality Dual Carriageway” (“the project”).
4. Each of the plaintiffs was employed under written contract by the defendants for some part of the period between 2007 and 2009 in connection with the project.
The written contract
5. Leaving aside the contract entered into by Mrs Cordosa Gastalho, those signed by the other plaintiffs are in very similar, if not identical, terms. Each states, in material part:
…
7. Board, Lodgings and Laundry services
The Construction Industry Registered Employment Agreement
6. It is not disputed that it was a term of the contracts between the defendants and each of the plaintiffs that the former would pay the latter in accordance with the Construction Industry Registered Employment Agreement (“the CIREA”). Thus the defendants were contractually bound to abide by the payment terms of the CIREA, regardless of whether it was otherwise enforceable as a matter of statute law. A Registered Employment Agreement (“REA”) is a construct that was first given statutory force by Part III of the Industrial Relations Act 1946 (“the 1946 Act”).
7. As the Supreme Court explained in McGowan & Ors v The Labour Court [2013] IESC 21 (per O’Donnell J, nem. dis.):
“…Under Part III an employment agreement, defined as an agreement regulating remuneration and conditions of employment of work and made between trade unions and an employer or a group of employers or at a meeting of the registered Joint Industrial Council, may on the application of the parties thereto, be registered by the Labour Court. On any such application the Labour Court is obliged to register the agreement if it is satisfied that the conditions of six subparagraphs of s.27 of the Act have been complied with…Once registered, an REA…becomes incorporated in the contract between the employer and employee and is enforceable by criminal prosecution. The agreement may be varied by application brought by the parties to the original agreement, and may be cancelled by the court either on a joint application of the parties, or if the Labour Court is satisfied that there has been substantial change in the trade or business. But most significantly for present purposes, an REA…applies not just to the parties thereto and those they represent, but to every worker and employer in the sector, whether or not they were a party at the original agreement, or represented in the conclusion of the agreement, or even in existence at the time it was made. Thus, s.30(1) of the Act provides: ‘A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class, type or group to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this subsection, be bound thereby.’”
8. S. 32(1) of the 1946 Act made provision for complaints to be made by a trade union representative of workers affected by an REA. In the event of such a complaint being made the Labour Court was required to consider the complaint and, after hearing from all interested parties desiring to be heard, and if satisfied that the complaint was well-founded, was empowered, pursuant to s. 32(1)(b) of the 1946 Act, to make an Order directing the employer in default to take such steps as were considered necessary to comply with an REA. S. 32(4) of the 1946 Act made failure to comply with such an Order a criminal offence. S. 10 of the Industrial Relations Act 1969 stated that an employer, or a trade union representative of employers affected by an REA, could make a complaint to the Labour Court if they believed that another employer was in breach of any of the terms of that REA.
9. In McGowan, the Supreme Court held the provisions of Part III of the 1946 Act invalid as repugnant to Article 15.2.1 of the Constitution on the grounds that they delegated an excessive degree of law-making power to the Labour Court and established no guidelines to assist the Labour Court in determining when and under what conditions to accede to an application to register a particular employment agreement. The registration of such an agreement had the effect of requiring all employers in the sector or industry concerned to abide by the terms and conditions of employment laid down in it.
10. The CIREA began life as an agreement between the Construction Industry Federation (“CIF”) - the principal representative body of construction enterprises in the State - and a number of trade unions representing workers in the construction industry. It was originally signed on the 1st of June 1966 and was registered by the Labour Court on the 15th of March 1967. It was subsequently varied from time to time, in accordance with the procedure prescribed for such variations, under s. 28 of the 1946 Act.
11. Accordingly, during the period at issue in these proceedings, the CIREA was understood to form an essential (and enforceable) part of the industrial relations landscape in the construction industry. The defendants did not challenge its legal status then. On the contrary, they elected to bind themselves contractually to remunerate the plaintiffs in accordance with its terms, creating a private law obligation parallel to, though distinct from, that created by the CIREA itself.
12. Under the CIREA, construction workers were divided into several different pay grades, from A to D in descending order, depending on range of ability and years of experience. Hourly wage rates were set for each grade and those wage rates were subject to certain set increases on, for example, the 1st July 2007, the 1st January 2008, and the 4th February 2011. While the 27 plaintiffs in this case fell into various grades, it may be helpful to note by way of example that Nuno Pedro Goncalves Lopes, the second plaintiff in the first set of proceedings (and the first witness called at trial), was employed with effect from the 19th June 2007 as a “Construction Operative - Grade B” at the appropriate hourly rate for that position and grade, which was at that time €16.12 and was correctly set out as such on the face of his written contract.
13. In March 2007 the hourly rate of pay for grade A construction operatives under the CIREA was €17.18, which was increased to €17.61 in July 2007, and then to €18.04 in January 2008. At the same intervals, the hourly rate of pay prescribed for grade B workers was increased from €16.12 to €16.52, and then to €16.93; that of grade C workers was increased from €15.58 to €15.97, and then to €16.37; and that of grade D workers went from €14.17 to €14.52, and then to €14.88.
14. As regards overtime pay rates, the CIREA clearly stipulates that, outside normal working hours, overtime was to be paid at the rate of time and a half until midnight Monday to Friday and thereafter at double time. On Saturday, overtime was to be paid at the rate of time and a half for the first four hours from normal starting time and thereafter at double time until normal starting time on Monday morning.
The plaintiffs’ claim
15. There are two main limbs to the plaintiffs’ claim of breach of contract. The first is that the defendants have failed to pay them in accordance with clause 6 of the contract for all of the hours that they worked. The second is that the defendants breached an implied term of the contract that the accommodation, meals and laundry service that the defendants were to provide under clause 7 of the contract would be of a reasonable standard, and that the specified deductions made from the plaintiffs’ pay in recognition of the provision of those services were to be fair and reasonable. The plaintiffs allege that the accommodation and meals provided were not of a reasonable standard and that the amounts deducted for the provision of those services were excessive and unlawful.
Underpayment for hours worked
16. Fran Power, a Labour Inspector with the National Employment Rights Authority (“NERA”), was called as a witness by the plaintiffs. He testified as follows. NERA operates on an interim basis under the aegis of the Department of Jobs, Enterprise and Innovation. In or about the month of April 2008, NERA received an allegation of the underpayment of wages by RAC Eire. Patrick McCabe, an official of the Services Industrial Professional and Technical Union (“SIPTU”), gave evidence that it had made a complaint to NERA on behalf of the RAC Eire workers. Whether in response to that or some other complaint, NERA took the following steps in July 2008: it carried out inspections at the RAC Eire project site office near Birdhill, County Tipperary, during which it requested and obtained documentation; it conducted interviews with employees and canteen staff; and it carried out surveillance of the project work site, in order to establish the relevant employees’ hours of work.
17. Amongst the documentation that NERA obtained from RAC Eire were the latter’s employee payslips and various completed worksheets, known as the “RAC Eire diary of labour”, upon which the hours of work (regular and overtime) performed by each employee were recorded. Employee payslips were prepared in reliance upon the data contained in those records. The copy worksheets from the diary of labour that were produced in Court at trial, which cover the months of February, May, and July, 2008, record that the workers at the site worked from 8.30am to 6pm, Monday to Thursday, from 8.30am to 5pm on Fridays, and from 8am until midday on Saturdays. They also indicate that some of the workers occasionally worked from 8am until midday on Sunday.
18. However, several employees made statements to NERA to the effect that, in reality, they started work each day at 7 a.m. and generally worked until well after 6 p.m. on weekdays and until well after midday on Saturdays. In the course of its inspections, NERA obtained additional documentation in the form of worksheets known as the “RAC Eire operation daily log sheets.” Those worksheets dealt day by day with the use of machines or construction vehicles on site and, in respect of each, recorded its description; date of use; start time of use; time of return; number of hours of use; work to which applied; and identity of user or driver. In response to a request by NERA, RAC Eire was only able to produce the relevant records for the month of July 2008, ostensibly on the basis that all such records were routinely destroyed at the end of each month. The July records, with very few deviations, consistently record the use of those machines and vehicles between 7am and 8pm from Monday to Friday. The hours recorded for Saturdays are more variable. While they each record use commencing at 7 am, the finish times recorded on different Saturdays vary between 10 am and 10 pm, including almost every hour in between. None of the operation daily log sheets reflect the hours recorded in the diary of labour for Saturdays in July 2008, which, as noted above, are without variation those between 8am and midday.
19. Having carried out the inspections just described, Mr Power formed the view that the diary of labour records were false and that the defendants’ employees were being underpaid by reference to their contracts of employment and the requirements of the CIREA. NERA wrote to the defendants to afford them an opportunity to provide an explanation. None was forthcoming. A representative of the defendants was interviewed under caution. He invoked the privilege against self-incrimination.
20. In Nenagh District Court on the 31st January 2011, each of the defendants was convicted of the offence that, on the 30th July 2008 at Newport Road, Birdhill, County Tipperary, it did produce, or cause to be produced, or allow to be produced to an inspector appointed pursuant to s. 8 (2) of the Organisation of Working Time Act 1997 a record which is false or misleading in a material respect, knowing it to be so false or misleading, contrary to s. 8 (8) (c) of the said Act. Mr Power confirmed in his evidence to this Court that the false or misleading record at issue was the RAC Eire Diary of Labour. The defendants were each fined €1,000.
21. The offence just described requires the production of a false record to a Labour Inspector, knowing it to be false. Thus a mere administrative error, or series of errors, in the compilation of a record or records subsequently produced to a Labour Inspector in ignorance of any such error and in good faith could not give rise to criminal liability under that provision.
22. The defendants appealed the decision of the District Court and, at Nenagh Circuit Court on the 18th May 2012, the appeal of Empresa De Construcoes Amandio Carvalho S.A., the third defendant in these proceedings, was allowed and it was acquitted of the offence concerned. However, the Circuit Court went on to find the charge proved to the criminal standard against each of the other two defendants, before varying the District Court Order by applying s. 1 (1) of the Probation of Offenders Act 1907 in not proceeding to convict either of them, upon receiving confirmation that those defendants had discharged the costs of the prosecution.
23. The plaintiffs called as a witness Katrina Clifford, an accountant and senior official in the Office of the Comptroller and Auditor General. Ms. Clifford was, at the material time, on secondment to NERA. She gave evidence that her task was to assist the NERA inspectors. In the course of the investigation of the complaint against RAC Eire, Ms Clifford met with its representative on site and with its accountants. From the former she obtained a range of relevant documentation and from the latter she learned that they had prepared the payroll by reference to a spreadsheet presented to them by RAC Eire each month, which they returned to RAC Eire as soon as the relevant work was done. Ms. Clifford was told that the defendants’ accountants relied solely on the information provided to them by RAC Eire in relation to its employees’ hours of work, as well as in relation to any appropriate deductions from its employees’ monthly pay.
24. Based on the information she obtained, Ms Clifford prepared a spreadsheet on NERA’s behalf, setting out a calculation of the arrears of overtime payments due to each of the defendants’ employees. That calculation dealt with between 160 and 180 employees and demonstrated total arrears due in the amount of just under €3 million. The calculation was based on the pay grade of each employee; his or her start and finish dates; the estimated hours of unpaid overtime extrapolated from the disparity between the hours of work recorded in the diary of labour and those claimed on behalf of the employees, corroborated by the operation daily log sheets and NERA’s surveillance; and the relevant wage rates under the CIREA. It is noteworthy that Ms Clifford sought - but was unable to obtain - the defendants’ records concerning the employees’ leave pay, holiday pay, public holiday pay and sick pay and was thus unable to allay NERA’s additional concerns in that regard, whereas she did consider various representations made to her on behalf of the defendants regarding any possible over calculation by NERA of the amount due for underpayment of wages. Ms. Clifford stated that she accepted some of those representations and rejected others. Accordingly, it seems reasonable to conclude that the NERA underpayment calculation is a conservative one.
25. In acknowledgment of the fact that the plaintiffs’ proposed evidence of their experiences as employees of the defendants was broadly uniform inter se and as a sensible exercise in case management, it was agreed that not all of the plaintiffs would be required to give evidence at trial. The Court heard the evidence of eleven of the plaintiffs, together with that of two other employees called to give evidence on the plaintiffs’ behalf and, subsequently, that of two employees called to give evidence on behalf of the defendants. By agreement between the parties, the Court was invited to assume that the evidence of those plaintiffs who did not appear as witnesses would have been broadly in line with that of the plaintiffs who did, and would have been subject to cross-examination and, ultimately, comment by Counsel on behalf of the defendants in broadly the same way.
26. The evidence of the plaintiffs’ employee witnesses, with one exception, was largely consistent in establishing that, during the plaintiffs’ time in employment on the project, they each generally worked from 7am until either 7pm or 8pm on weekdays and from 7am until anywhere between 4pm and 6 pm on Saturdays, although occasionally certain plaintiff employees worked even longer hours.
27. The two employee witnesses called on behalf of the defendants told a different story. They each stated that their hours of work were between 8 am and 6 pm and did not vary throughout their time on the project. However, neither of those witnesses was in a position to produce his contract of employment or any of his payslips and one of them, Inacio Marthinho Gomes, though adamant during his evidence in chief that he and all of the other employees commenced work every day at 8 am with very few exceptions, was obliged to accept under cross-examination that, on every day in July 2008 for which operation daily log sheets are extant, he was recorded as using a construction vehicle between 7 am and 8 pm, whereas the diary of labour for each of those days recorded him as working only between 8 am and 6 pm.
28. On the basis of the evidence just described, I have no hesitation in concluding that, on the balance of probabilities, the construction operatives on the project, and the plaintiffs in particular, consistently worked significantly longer hours than those recorded in the diary of labour (and reflected in their payslips) and that the plaintiffs were, in consequence, substantially underpaid.
29. In putting forward their individual claims for damages arising from that underpayment, the plaintiffs in this case relied upon the evidence I have just summarised, together with that of Tom McGuinness, a chartered accountant and certified financial and tax adviser, who was called as an independent expert witness on their behalf.
30. Mr McGuinness prepared a calculation of each plaintiff’s underpayment of wages. In dealing with the period between the date upon which each plaintiff commenced work and late July 2008, Mr McGuinness relied on a report prepared by NERA, although that report is not in evidence in this trial. Presumably, it reflects the calculations that Ms. Clifford of NERA described in her evidence to the court. In addressing the period from late July 2008 until the date upon which each plaintiff’s employment terminated, Mr McGuinness carried out a calculation based upon the assumption that the hours worked by each of them were 30% greater than those recorded both in the diary of labour and on their payslips. The 30% figure was an extrapolation by Mr McGuinness from the calculations carried out by NERA. Those calculations suggested that the relevant employees’ working hours were, in fact, 41% greater than those recorded by the defendants during the period to the end of July 2008 but Mr McGuinness chose to adopt a more conservative estimate that the plaintiffs’ hours of work were only 30% greater than those recorded by the defendants for the period from the beginning of August 2008 until each plaintiff ceased work.
31. While the defence delivered in each of these three linked sets of proceedings includes a denial that the defendants failed, refused or neglected to remunerate each plaintiff for the hours that he or she worked in accordance with his or her contract of employment, the defendants did not seek to challenge or rebut the evidence adduced on behalf of the plaintiffs in that regard in any significant way. The defendants called just one witness involved in the management of RAC Eire; Mr Eduardo Quirino, a civil engineer employed by the third defendant.
32. Mr Quirino gave evidence that he joined the third defendant in 2007. He stated that, at the material time, the RAC Eire partnership had created a three member consultant board on which he was the representative of the third defendant. He said that the principal task of that body was to deal with any issues arising between RAC Eire and the main or general contractor, Bóthar Hibernian. His more specific role was to look after issues of invoicing and payment as between the defendants and Bóthar Hibernian. For those purposes, he travelled from Portugal to Ireland once or, sometimes, twice a month for meetings with Bóthar Hibernian representatives until RAC Eire’s involvement in the project ended in December 2008.
33. On the question of the employees’ hours of work, Mr Quirino expressed the opinion that they were largely in accordance with the defendants’ timetable (a concept never further explored), and that work generally commenced at 8 a.m. Mr Quirino acknowledged that after certain delays with the work became evident in 2008, necessitating exceptional measures by local management to address them, some workers may have commenced work earlier in the morning. Mr Quirino could not remember whether additional hours had been worked in the evening but expressed the view that the workers were always paid in accordance with the hours that they had worked.
34. Under cross-examination, Mr Quirino stated that he had no involvement with any lawyer or other advisor concerning the requirements of Irish employment law - that would have been the responsibility of those persons within his company who dealt with human resources issues. Nor was he involved with the preparation or execution of employee contracts, although he expressed the belief that he was familiar, in a general way, with the provisions of the employee contracts now at issue.
35. Under further questioning, Mr Quirino disclosed that he was entirely unfamiliar with the defendants’ diary of labour, operation daily log sheets and payslips and that he had no involvement in, or direct responsibility for, the payments made to the defendants’ workers or any deductions made from such payments for accommodation, board, laundry or the provision of any benefit in kind. These were all, according to Mr Quirino, the responsibility of local management.
36. Mr Quirino further stated under cross-examination that he could shed no light on the evident discrepancies between the defendants’ diary of labour and payslips, on the one hand, and its operational daily log sheets, on the other, since those would have been the responsibility of local management and he had never seen those documents until they were shown to him in court. Nor could he comment on the suggestion that NERA surveillance had disclosed that work on site continued significantly after the hours recorded in the defendants’ diary of labour, as he never went on site in the evenings because all the site meetings that he attended had occurred during the day. When asked how he could reconcile his suggestion that employees did work some additional hours in 2008 after delays became apparent with the fact that the diary of labour consistently records the defendants’ employees working the same limited hours throughout the entire period, Mr Quirino had no answer to offer.
37. It swiftly became evident that, in expressing the view that the workers were always paid in accordance with the hours that they worked, Mr Quirino had no direct evidence to give but was merely observing that it was the job of the defendants’ local managers “to ensure these things”, in accordance with the principles to which he believes his employer, the third defendant, has adhered throughout its 50 year existence.
38. None of the defendants’ local managers gave evidence. Nor did any representative of the firm of accountants retained by the defendants at the material time to prepare their employee payroll.
39. Having carefully weighed the evidence that I have just summarised, I have come to the conclusion that the defendants engaged in the systematic and deliberate under recording of the plaintiffs’ hours of work, leading to the underpayment of their wages in breach of their contracts of employment.
40. The defendants did call a chartered accountant named Brian Hyland as an independent expert witness to give evidence on their behalf. However, even though the defendants never expressly conceded any liability for the underpayment of the plaintiffs’ wages, the forensic exercise that Mr Hyland was requested to carry out was not directed towards the question of whether the plaintiffs were underpaid for the hours that they worked but was instead limited to an assessment of the basis upon which Mr McGuinness, the plaintiffs’ expert accountant, had calculated the amount of that underpayment.
41. Thus, Mr Hyland agreed under cross-examination that, had he been the defendants’ accountant at the material time and had he become aware of the discrepancies in the defendants’ records previously described, he would certainly have sought an explanation from the defendants and would have been very concerned in the absence of one. However, he had not been asked to conduct a forensic exercise of that sort for the purpose of these proceedings and, accordingly, had not done so. His instructions were limited to an examination of the calculation of the underpayment claimed and did not extend to a forensic investigation of whether and, if so, why the plaintiffs were systematically underpaid by the defendants.
42. Even though most of the plaintiffs worked for the defendants until late 2008 or the beginning of 2009, Mr Hyland prepared an alternative calculation of the underpayment of the plaintiffs’ wages for a significantly shorter period ending on the 31st July 2008. Mr Hyland’s report explains that his firm adopted that approach because “[w]e have been advised that it has been agreed, for the period after that date to completion of the project, that wages were calculated correctly and paid accordingly.” In clarifying that aspect of Mr Hyland’s report through an intervention made during Mr Hyland’s cross-examination, Counsel for the defendants stated that the agreement referred to was one between the three defendants only, and that it is accepted by the defendants that the underpayment of the plaintiffs’ wages after July 2008 remains very much in issue in this case.
43. It will be remembered that the exercise conducted by Mr McGuinness on behalf of the plaintiffs adopts the calculations made by NERA for the period covered by the NERA investigation - that is, the period to the end of July 2008 - and assumes that, thereafter, the plaintiffs worked 30% more hours than those recorded by the defendants until the date upon which the employment of each plaintiff ceased. NERA had concluded, based upon the evidence it had compiled, that, during the period covered by its investigation, the plaintiffs had worked 41% more hours than those recorded by the defendants.
44. The defendants submit that Mr Hyland’s assumption - that the plaintiffs worked only the hours recorded by the defendants from August 2008 onwards - should be accepted by the Court as the correct one. In advancing that argument, they urge the court to accept the evidence given by one of the plaintiffs over the conflicting evidence of a number of other witnesses in the case. The plaintiff concerned is the second plaintiff in the first set of proceedings, Nuno Pedro Goncalves Lopes. It is common case that Mr Lopes worked for the defendants from the 19th June 2007 to the 31st October 2008. Mr Lopes stated in evidence that, while generally his working hours had been between 7 am and 7pm (or 8 pm in Summer), to the best of his recollection things changed after the NERA inspection in July 2008 and his hours of work reduced to those between 8.30 am and 5.30 pm or 6 pm (although sometimes the foreman required him to do more work and, when that happened, he got paid overtime for that extra work).
45. If Mr Lopes’ evidence in that regard were correct, it would mean that his hours of work had fallen back into line after July 2008, not so much with his “contractual hours” as contended for by the defendants, but with those hours of work that had been consistently and wrongly recorded in the diary of labour and on the plaintiffs’ payslips prior to the end of July 2008; that is to say, each day’s normal contractual hours of work plus just one hour of overtime. The defendants did not adduce any evidence to support the contention that, after the inspection by NERA, a decision was made and implemented that, rather than properly paying their employees for the hours of overtime that they had hitherto been required to work, those hours would instead be reduced to match the shorter hours that until then each employee had been deliberately misreported as working. Nevertheless, that is the proposition the defendants now invite this Court to accept.
46. There was no suggestion on the part of any other plaintiff that his or her hours were cut back after July 2008 in the manner just described, nor - according to my note - was that proposition ever specifically put to any other employee called on behalf of the plaintiffs. Those plaintiffs who were asked to comment on whether their working hours had changed at any time had no recollection of any such occurrence.
47. Nonetheless, the defendants submit that I should prefer the evidence of Mr Lopes over that of the other plaintiffs, in part by reference to the argument that Mr Lopes gave his evidence in English, whereas the other plaintiffs each gave evidence in Portuguese through an English translator, sworn in for that purpose. In regard to that submission, I can only observe that, while I note the reservations expressed on behalf of the defendants in respect of the accuracy of the translation of certain witness answers, it is by no means clear to me that, as a general proposition, the evidence of a witness in a language other than his mother tongue, is to be qualitatively preferred to that of a witness speaking in his native language through a qualified translator.
48. In resolving the conflict of evidence just described, I derive great assistance from the testimony of Ana Filipa Carvalho de Oliveira, a witness called on behalf of the plaintiffs. Ms de Oliveira is an environmental engineer who was employed by the defendants as an environmental technician. Her job as such was the environmental management of the project site, including the site compound and access roads. While the evidence that the plaintiffs sought to elicit from Ms de Oliveira was primarily directed towards the standard and suitability of the accommodation provided on site, she was also questioned concerning her hours of work.
49. In response, Ms de Oliveira stated that, while the normal hours of work described on the face of her contract of employment were those between 8.30 am and 5 pm (or 4 pm on Fridays), her work was never limited to those hours. Instead, she worked from 7 am to 7 pm (or 8 pm in Summer). Ms de Oliveira testified that, throughout her working day, “all of the team” was working. Later in her evidence, Ms de Oliveira stated that she had not been aware of any NERA inspection in July 2008 and that her hours of work had remained the same throughout the duration of her contract of employment, adding that, when she was working, “the men were always working.” Albeit in a different context, Ms de Oliveira is described in the defendants’ written submissions as a disinterested witness and I fully accept that characterisation.
50. Having considered all of the foregoing evidence as carefully as I am able, I have come to the conclusion that the plaintiffs’ hours of work remained broadly the same after the end of July 2008 as they had been before then. For that reason, it seems to me appropriate to accept as reasonable and, hence, correct the assumption underpinning the calculations made by Mr McGuinness, rather than the quite different assumption by reference to which the defendants requested Mr Hyland to carry out his alternative calculations.
51. A further exercise carried out by Mr Hyland relevant to this aspect of the Court’s judgment was the calculation by him of the aggregate value of each 30 minute period during which the plaintiffs in each case were allegedly underpaid. Mr Hyland was instructed to prepare that calculation on the basis that, if the Court were to accept that the defendants’ had indeed reduced the plaintiffs’ hours of work from the end of July 2008 onwards to coincide with the shorter hours of work that had been previously wrongly recorded, then the figures calculated by Mr McGuinness on behalf of the plaintiffs for unpaid hours of overtime would represent a significant over-claim. In light of the conclusions I have already reached, it seems to me that the more obvious relevance of that calculation is in emphasising the conservatism of the figures put forward on behalf of the plaintiffs in reliance upon the generous assumption that, after July 2008, they had worked hours only 30%, and not 41%, greater than those recorded by the defendants. Indeed, under cross-examination Mr Hyland accepted that, depending upon the Court’s view of the evidence, the figures put forward by Mr McGuinness might be an underestimate of the unpaid wages due to the plaintiffs.
Deductions for accommodation, board, laundry and benefit in kind
52. It is common case that the plaintiffs were provided with accommodation, in one or more prefabricated buildings located at a compound adjacent to the construction site. Approximately 150 workers lived there during the relevant period. There was a canteen at the compound and three meals a day were provided there. There was a laundry service on site. Deductions were made from the pay of the plaintiffs in respect of board, lodging, and laundry. Deductions were also made from their pay under the heading “benefit-in-kind.”
i. deduction for accommodation
53. A very significant portion of the evidence and argument at trial was directed towards the issue of whether the accommodation that the defendants provided for the plaintiffs at the site compound was of a reasonable standard or fit for purpose and whether the defendants’ deduction from the plaintiffs’ wages of €17.50 per day for that purpose was fair and reasonable.
54. In addition to their own testimony, the plaintiffs relied most significantly in this regard on the evidence of Ronald Green, an independent expert consulting engineer retained on their behalf, and that of Ms de Oliveira, the environmental technician employed by the defendants at the material time to whose testimony reference has already been made.
55. In November 2014, shortly prior to giving his evidence, Mr Green visited the former site of the temporary accommodation that had been provided for the plaintiffs at a compound or work camp, adjacent to a slip road off the dual carriageway then under construction on the Southern side of Nenagh, County Tipperary. The temporary structures that had been on the site between 2007 and 2009 were, of course, no longer there. However, Mr Green had also inspected certain photographs and video footage, later proved in evidence, of the locus as it was when the plaintiffs were accommodated there.
56. Based upon his consideration of that material, Mr Green made several criticisms of the accommodation provided, including, inter alia, that the living and sleeping accommodation were unacceptably cramped for the number of persons accommodated, that the sanitary arrangements were both sub-standard and inadequate for the number of persons using them, and that there was no provision of potable water.
57. Mr Green described the nature and layout of the accommodation as he had seen it depicted. It comprised a temporary pre-fabricated building erected on a raised bed of gravel fill. Adjacent to the structure at one end there was a diesel powered generator set for the provision of electricity and close to that a bore hole well was located with an electrical pump attached to it for the provision of water to the shower and sanitary facilities within the building. At the other end of the structure a couple of underground holding tanks had been constructed, in an excavation approximately two metres square, for the sewage and waste water from the compound’s sanitary facilities.
58. Mr Green was deeply critical of the external structure of these facilities on three principal grounds. First, he pointed to a photograph depicting the diesel powered electrical generator sitting on a filled area of broken stone. Mr Green identified a dark stained area around the generator as in all probability spilled or leaked diesel fuel, which he said must necessarily have posed a significant risk of ground water contamination. Three or four metres away, Mr Green pointed to the brown metal casing of the bore hole well with an electrical pump attached and a blue water pipe emerging from it, noting that this was the source of the building’s water supply for shower and toilet purposes. Mr Green stated that the close proximity of those two installations created a high potential for the contamination of the relevant water supply, particularly in light of the significant percolation capacity of broken stone.
59. Ms de Oliveira stated that the operation of the generator was one of her responsibilities and that she was concerned that it was leaking a lot of diesel, in her view giving rise to a significant risk of groundwater contamination, as she was aware from her knowledge of the road construction excavation work that had been done nearby that the water table in that location was quite close to the surface of the land.
60. Mr Green’s second principal ground of criticism of the external structure of the accommodation facility was the proximity of the sewage holding tanks to both the accommodation block and the well supplying it with water. While acknowledging that the tanks concerned were sewage holding tanks rather than sewage treatment (or septic) tanks, Mr Green expressed the view that the Environmental Protection Agency Wastewater Treatment Manual on Treatment Systems for Small Communities, Business, Leisure Centres and Hotels (1999) provided appropriate guidance in relation to the location of such structures. He pointed out that, according to the contents of Table 4 in that document, the recommended minimum distance between the relevant installation and an existing development serving the equivalent of a population of between 120 and 140 persons is 43 metres. The purpose of that distance is to create a buffer zone to limit or avoid odour or noise nuisance. Mr Green stated that the guidelines just quoted dealt with septic tank installations in which waste undergoes treatment, thereby significantly reducing any risk of pollution, whereas the defendants had simply provided sewage holding tanks and had located them within 10 metres of the gable of the accommodation building and approximately 25 metres away from the location of the bore hole well. Ms de Oliveira also took the view that the waste holding tanks were too close to the well that provided the building with its water supply.
61. Mr Green’s third ground of criticism regarding the external structure of the accommodation building was closely related to the second. It was that sewage holding tanks were an inherently inadequate response to the requirement to provide appropriate living accommodation to upwards of 150 men for a period well in excess of twelve months. Mr Green took the view that a sewage holding tank solution would only have been appropriate and, hence, acceptable over a much shorter period and, even then, would have required holding tanks of significantly greater capacity to deal with the number of persons accommodated. Mr Green stated that, in his view, any accommodation that was to be used to house 150 persons for more than 12 months would require to be equipped with a proper waste treatment system.
62. Ms de Oliveira and a number of plaintiffs gave evidence that the sewage holding tanks frequently overflowed because they were not emptied often enough, particularly at weekends, and that foul water tended to pool close to the accommodation building as a result. The only cover on one of the tanks was a metal sheet. Several of the plaintiffs gave evidence of the prevalence of vermin outside and, on several occasions, inside the buildings on site.
63. Ms de Oliveira also gave evidence, in which she was supported by a number of plaintiffs, that the external refuse bins provided for the accommodation building were inadequate in size or number, or were not emptied sufficiently often, to deal with the amount of refuse typically generated by the occupants of the accommodation building, with the result that the bins frequently overflowed, further exacerbating the problem with vermin.
64. Turning to the internal features of the accommodation, the plaintiffs who gave evidence made broadly consistent complaints that it was not only overcrowded but also inherently inadequate. The plaintiffs’ evidence was that between 2 and 5 persons were accommodated in each bedroom. Based upon the photographs he had studied, Mr Green both supported and amplified the plaintiffs’ criticisms. He stated that the bedrooms were too small for the number of persons sleeping in each and contained inadequate storage facilities for clothing, footwear and other personal effects. This resulted in the storage of footwear and clothing in the corridors, giving rise to a fire hazard. In the washroom, the number of sink units and toilet and shower cubicles was inadequate for the number of persons accommodated and the water tanks and water heaters lacked the capacity to provide sufficient hot water for those persons when it was required in the mornings and evenings. Several of the plaintiffs gave evidence of returning from work to find that very often there was no hot water for a shower. The single recreation area or common room was inappropriately furnished with plastic garden furniture and there was not enough furniture to accommodate the number of workers it was required to facilitate. The amenity provided by a single television set in that room was inadequate for so large a complement of workers. The absence of a source of potable water in the accommodation was indefensible, as was the failure to provide any adequate changing area or storage area for wet or outdoor clothing.
65. Ms de Oliveira stated that she only entered the accommodation building on one occasion, at the request of a cleaning lady, who asked her to investigate a problem in the washroom, which Ms de Oliveira discovered was that the waste water system had backed up from the waste holding tanks into the showers because the waste tanks were full as they had not been emptied.
66. Mr Green expressed the view that worker accommodation compounds or work camps are an unusual feature of construction projects within the State. Regulation 102 of the Safety, Health and Welfare at Work (Construction) Regulations (2006) (S.I. No. 504 of 2006), which deals with accommodation facilities as an aspect of construction site welfare facilities for workers, states only that a contractor responsible for a construction site shall ensure that fixed living accommodation areas on the site: (a) have sufficient sanitary equipment, a rest room and a leisure room; (b) are equipped with beds, cupboards, tables and seats with backs, taking account of the number of persons at work, and: (c) are allocated taking account, where appropriate, of the presence of persons of both sexes.
67. However, Mr Green went on to express the view that, in jurisdictions where work camps or accommodation compounds are a more common feature of the construction industry landscape, such as Canada and Western Australia, comprehensive standards are in place and the accommodation at issue in this case would, in all of the circumstances already described, fall significantly short of those standards. In conclusion, Mr Green expressed the view that the accommodation provided to the plaintiffs by the defendants in this case was sub-standard in every respect, adding that the standard of accommodation required in prison facilities at the material time would have been superior.
68. On behalf of the defendants, Mr Quirino the representative of the third defendant most directly involved in the management of the RAC Eire partnership, stated that he wasn’t aware of any complaints about the accommodation at the site compound, although he acknowledged that any such complaints would have been directed to local management. Under cross-examination, he stated that the defendants had contracted an Irish company to provide accommodation. Mr Quirino stated that, when he began his professional career as a civil engineer 38 years ago, he lived in a compound with three other individuals in similar conditions. However, Mr Quirino did not appear to be familiar with any of the specific criticisms of the accommodation provided in this case.
69. Mr McGuinness, the plaintiffs’ expert accountant, gave certain evidence concerning his experience of the property rental market in North Tipperary but I do not think that it is appropriate to consider it as I do not accept that it falls properly within the scope of his expertise. On the other hand, it seems perfectly proper to have regard to the fact that each of the plaintiffs was subject to a deduction from his wages of €17.50 per day (or, approximately, €520 per month) for the accommodation provided.
70. Having carefully considered the evidence that I have just summarised, the conclusion I have reached is that the accommodation provided was, sadly, of a deplorable - perhaps even, a dangerous - standard. In the circumstances, I do not believe that any deduction from the plaintiffs’ wages for its provision was justified. It follows that the plaintiffs are entitled to recover those deductions in full.
71. Under clause 7 of each of the contracts of employment at issue, the defendants agreed to provide each of the plaintiffs with “meals” for the duration of the contract, in consideration for which each plaintiff agreed to a deduction of €15 per day from his hourly rate of pay for “board.”
72. The plaintiffs assert, and the defendants admit, that that it was an implied term of each contract of employment that the said deduction would be fair and reasonable and that the board provided would be of a reasonable standard. The defendants contend that the deduction was properly made.
73. The parties agree that the defendants provided three meals a day, prepared and served in a canteen at the site compound.
74. The plaintiffs who gave evidence at the trial made various broad complaints about the catering provided: that the food was of a low quality; that the portions provided were too small; that the menu was not varied sufficiently frequently; and that the food had on occasion run out before certain of the plaintiffs had returned from work in the evenings. Some plaintiffs also complained that they had had to pay for the food provided even when they did not eat in the canteen.
75. Several of the plaintiffs gave evidence that, at the beginning of the period of their employment with the defendants, the food served was typical Irish fare, with which they were unfamiliar and which they did not like. They conceded, however, that, upon receipt of that complaint, the defendants had employed a Portuguese chef to provide them with more familiar - and, hence, to them more acceptable - cuisine, though some of the plaintiffs maintained that the size of the portions served remained an issue.
76. Ms de Oliveira, the environmental engineer called on behalf of the plaintiffs primarily to address other matters, was cross-examined on the quality of the food provided at the canteen. She confirmed that it operated under a self service arrangement and that she ate there all the time. She acknowledged that the breakfast provided was of the ‘continental’ type, comprising bread, butter, jam, fruit, yogurt, tea and coffee. Lunch involved a hot meal as a main course with soup also available. Dinner was broadly similar. Dessert was provided. Arrangements were in place so that food could be taken away. The food was, Ms de Oliveira accepted, quite nice, of reasonably good quality and provided in adequate portions.
77. By reference to the evidence as a whole, and in particular that of Ms de Oliveira, I am satisfied that the board provided was of a reasonable standard.
78. Through the evidence of their expert accountant Mr McGuinness, the plaintiffs sought to advance an alternative argument that €15 per day was not a fair or reasonable deduction for board, regardless of the standard of the board provided. Mr McGuinness cited a figure contained in an Irish Congress of Trade Unions (“ICTU”) booklet on employment law that he found on a Citizens Information Bureau website. That figure was Ir£3.62 (or €4.60) per day as the maximum permissible deduction for the provision of board by an employer. However, it quickly became apparent that the source of that figure was the National Minimum Wage Act 2000 (National Minimum Rate of Pay) Order 2000 (S.I. 95/2000), which sets out the maximum allowances that may included in the calculation of whether an employee is receiving the national minimum hourly rate of pay.
79. Of course, the hourly rate of pay claimed in these proceedings, that under the CIREA, significantly exceeds the national minimum wage. When this was pointed out, it was suggested in argument on behalf of the plaintiffs that, in the case of at least some of them, the level of underpayment of their wages was such that they had failed to receive the national minimum wage. But the case now falls to be determined by reference to each plaintiff’s entitlement to remuneration under his or her contract of employment, not by reference to the level of payment that each plaintiff actually received. Thus, quite apart from being a non sequitur, it would give rise to an obvious double recovery if, in addition to their claim for underpayment of the wages due to them under their contracts of employment, wages well in excess of the national minimum wage, the plaintiffs were also allowed to claim damages on the basis that the deduction from their wages of €15 per day for board, being a deduction in excess of the maximum permissible deduction for board of €4.60 relevant to the calculation of whether each of them was in receipt of the national minimum wage, is somehow impermissible to the extent of the difference between those two figures. It seems to me that, insofar as Mr McGuinness has formulated a claim on behalf of each plaintiff for €10.40 per day (representing that difference), his approach is misconceived and that claim must be disregarded.
80. For the sake of completeness, it should be noted that Mr McGuinness also made reference to the practice in the construction industry of the payment of “country money” or “lodge allowance.” Country money is the term applied to certain tax-free travel and subsistence payments available to certain employees working more than a set distance from their employer’s base who are not provided with transport, board or lodgings by their employer. Those payments derive from an agreement that was reached in 1976 between the Construction Industry Federation and the Construction and Electrical Workers Unions. Mr McGuinness was never clear about the relevance of the existence of these payments to any argument that the plaintiffs’ might plausibly advance concerning the fairness or reasonableness of the agreed deduction of €15 per day for board in the contract under which they claim, whether by analogy or otherwise, and it is, therefore, unnecessary to consider that aspect of the evidence of Mr McGuinness any further.
81. Accordingly, I conclude that €15 per day each was a fair and reasonable deduction from the plaintiffs’ wages for the board provided to them.
iii. deduction for laundry
82. Clause 7 of each contract of employment stipulates that the defendants were to provide each plaintiff with a laundry service for the duration of his employment, in consideration for which they were entitled to deduct €3.75 per kilogramme (presumably, of laundry weighed).
83. It is common case that a laundry service was, indeed, provided. Moreover, while certain of the plaintiffs complained of mislaid articles of clothing (a criticism from which few, if any, laundry services are immune), there was no evidence to persuade me that the service was not of a reasonable standard.
84. The defendants conceded both in pre-trial correspondence and at trial, though not in the defences they delivered, that they never weighed the plaintiffs’ laundry. Yet it was the unchallenged evidence of the plaintiffs, by reference to copies of their payslips produced to them for that purpose, that varying and significant deductions for laundry services were consistently made from their wages on a basis that was never explained to them.
85. One of the plaintiffs, Maria Piedosa Ribeiro Cardosa Gastalho, who was employed by the defendants as a cleaner, gave evidence that she used the laundry facilities on site to launder her own clothes and those of her husband, Mario Augusto Ramalho Gastalho, another of the plaintiffs. Neither used the laundry service offered by the defendants. Mrs Gastalho stated that the couple had what she considered a normal amount of laundry, amounting to one load between them each week or, approximately, four loads of washing between them every month. Mr McGuinness, the plaintiffs’ accountant, gave unchallenged evidence that, during the period of his employment on the project, Mr Gastalho had €1,103.63 deducted from his wages for laundry, and that, during her period of employment on the project, Mrs Gastalho had €692.93 deducted from her wages for laundry.
86. The defendants did not adduce any evidence whatsoever to explain the basis upon which they purported to make persistent, precise and significant deductions from the plaintiffs’ wages for the provision of a laundry service, the value of which they were contractually required to calculate and apply solely by laundry weight, when no laundry was ever weighed. Nor did the defendants adduce any evidence to explain how persistent, precise and significant deductions came to be made from the wages of both Mr and Mrs Gastalho for the provision of laundry services to each, where no such services were ever availed of by either of those plaintiffs.
87. Instead, the defendants invite the Court to embark on an abstract consideration of whether the deductions made from the plaintiffs’ wages might be considered generally fair and reasonable for the provision of the type of laundry service that most, though not all, of the plaintiffs actually received. In that regard, although he was given no instructions concerning the basis upon which the defendants purported to make the relevant deductions, Mr Hyland, the expert forensic accountant retained on their behalf, was requested to express an expert opinion concerning whether those deductions might be considered fair and reasonable.
88. In acceding to that request, in my view Mr Hyland strayed well outside the confines of his own, no doubt extensive, expertise as a forensic accountant. The exercise that Mr Hyland conducted was to research on the internet the capacity of the average domestic washing machine, which he discovered is 7 kg. In the words of his report, he then applied that “rate” (i.e. the assumption that the average load of laundry washed for each plaintiff weighed the equivalent of the average load capacity of a domestic washing machine) to what he had calculated was the weight of laundry washed on behalf of each plaintiff (which weight, he assumed, could be correctly calculated by dividing the specific aggregate amount deducted for laundry from each plaintiff’s wages by the contractually applicable charge of €3.75 per kg of laundry). Mr Hyland concluded that, applying the assumptions just described to the payslips of a random sample of fourteen of the twenty seven plaintiffs, the average number of laundry loads per month for which each of the plaintiffs was charged would have varied between 1.4 and 4.09. Presumably, on the basis that it was broadly the plaintiffs’ evidence that each would each have presented one load of washing per week (deposited in a communal laundry basket outside each shared room), Mr Hyland concluded that “none of the [plaintiffs] were charged for excessive laundry services” and that the relevant deductions made were “in line with the rates as set out in the individual contracts of employment for the [plaintiffs].”
89. I am unable to accept either of the assumptions underlying Mr Hyland’s expression of opinion in that regard In relation to the first, I do not think that internet research is an acceptable substitute for appropriate expertise. If it were, the Court would be at liberty (and, in this instance, obliged) to apply the fruits of its own brief internet researches, which suggest that, while the average domestic washing machine load capacity is indeed 7kg, the average domestic washing machine load size is between 2 and 2.8 kg (a figure itself referable to typical family, rather than individual, use).
90. In relation to the second of Mr Hyland’s assumptions, I cannot accept it because it requires the Court to ignore the unchallenged evidence of the plaintiffs that at least two of them had regular, precise and significant deductions made from their wages for laundry services that were never provided at all.
91. In addition, it invites the Court to disregard the acknowledged fact that the plaintiffs were charged by weight for laundry that was not weighed, and to consider instead the extent to which those deductions, applied on an apparently random and entirely unexplained basis, may have been fair and reasonable, by engaging in speculation about the weight of the plaintiffs’ laundry.
92. In that context, the reasoning that the defendants invite the Court to accept appears to me to be a classic instance of petitio principii (or ‘begging the question’) i.e. if the Court is prepared to assume in the absence of evidence (or in the face of contrary evidence) that the amounts deducted from the plaintiffs’ wages for laundry services by the defendants were a correct calculation (or estimate) of the weight of laundry processed, then that proposition forms part of the defendants attempted proof (through Mr Hyland’s expression of opinion based in part upon that assumption) that the relevant deductions were broadly fair and reasonable. The circle is then closed by inviting the Court to conclude, by reference to Mr Hyland’s expression of opinion, that the deductions for laundry from the plaintiffs’ wages made by the defendants were, if fair and reasonable, then probably correct.
93. Having considered the relevant evidence, I am satisfied that the deductions that the defendants made from the plaintiffs wages in respect of the provision of laundry services were not made in accordance with the terms of the contract of employment between the parties and were not fair and reasonable. It follows that the plaintiffs are entitled to recover those deductions in full.
iv. deduction for benefit in kind
94. Mr McGuinness, the plaintiffs’ expert accountant, gave unchallenged evidence, based on the records made available to him, of the specific deductions that the defendants had made from the majority of the plaintiffs’ wages for what was described on the relevant payslips as “BIK” or benefit-in-kind.
95. The expert evidence of both sides on this issue relied on an understanding - apparently gleaned by NERA during its investigation and reflected in the NERA investigation report - that the deductions at issue were ostensibly made on the basis that the defendants had provided the relevant plaintiffs with the use of a vehicle or vehicles, and that these arrangements were properly and necessarily characterised as the provision of a benefit-in-kind. The fact that the NERA investigation report was not produced during the trial, much less its contents proved in evidence, appears to have passed unnoticed.
96. Mr McGuinness explained that a benefit-in-kind, such as the provision by an employer of a personal vehicle to an employee for his or her own use, where that employee’s total remuneration (including the value of any such benefit) in a given tax year exceeds a very low threshold figure, is treated as income and is taxable. I understood Mr Hyland to agree with that explanation. Those two experts also appeared to agree that the provision of a vehicle for use by more than one employee, where any private use of that vehicle is merely incidental to its business use, and where the vehicle is not normally kept overnight at or in the vicinity of the home of any employee, does not amount to the provision of a benefit-in-kind.
97. Mr McGuinness further explained that the “notional pay” attributed to an employer’s provision of a vehicle to an employee as benefit in kind is ascribed a regular weekly or monthly value by the application of the appropriate formula. Mr McGuinness pointed out that it is a peculiar feature of the deduction of benefit in kind from the plaintiffs’ wages in this case as disclosed by their payslips that the monthly deduction of benefit in kind appears to fluctuate in several instances.
98. It did not appear to be disputed at trial that none of the plaintiffs was provided with a vehicle for his own personal use by the defendants. Mr Lopes, for example, gave evidence that there was a Ford Transit van on site that was used for transporting the workers around the site. Under cross-examination he stated that, together with the other men at the compound, he did have some use of a company van in the evenings and at weekends between June 2007 and December 2007 for shopping and outings, though it was not available for his own personal use. Mr Lopes stated that in December 2007 he bought his own car to enable him to make personal journeys to the nearby town of Nenagh. He did not think anyone else accommodated on site had his or her own personal vehicle. Yet Mr Lopes had an aggregate sum of €8,143.51 deducted from his monthly wages as benefit in kind between June 2007 and November 2008 in widely varying monthly amounts.
99. Mr Fran Power, the NERA inspector, gave evidence that he was informed by a representative of the defendants that the benefit in kind deductions that the defendants made from their employees’ pay related to the private use of the defendants vehicles by their employees. Mr Power requested the defendants to provide him with the records supporting those deductions to include: a list of the relevant vehicles; the market value of each; the business mileage of each; and the usage of each (whether shared or exclusive). He did not receive any such records.
100. The evidence of Ms de Oliveira, the environmental engineer employed by the defendants as an environmental technician, established an astonishing difference of approach on the part of the defendants to her situation. Ms de Oliveira’s terms and conditions of employment were, I think it is fair to say, substantially better than those of the plaintiffs, no doubt by reference to the value of her professional qualifications. Ms de Oliveira was able to produce her contract of employment. In contrast to those of the plaintiffs, it states that Ms de Oliveira was entitled to remuneration calculated as a net monthly sum and that, as part of the terms and conditions of her employment, the defendants were to provide her with accommodation, meals and laundry without charge. Of course, it is also true to say that Ms de Oliveira’s employment role did not bring her situation within the terms of the CIREA.
101. Ms de Oliveira stated in evidence that the defendants provided her with accommodation, in the form of a shared three bedroom house in Castletroy, County Limerick, and with a car for her own exclusive personal use, together with whatever motor fuel she required. As the payslips she was able to produce corroborate, Ms Oliveira had no deduction whatsoever made from her pay for benefit in kind.
102. The defendants have never provided any explanation for the deductions that they made from the wages of several of the plaintiffs, which they ascribed at the time to the provision by them of a ‘benefit in kind.’
103. At the conclusion of the evidence of the plaintiffs’ expert accountant, Mr McGuinness, the point which marked the end of the plaintiffs’ case, Counsel for the defendants rose to inform the Court that the defendants are not seeking to stand over those deductions.
104. Accordingly, I am satisfied that the deductions that the defendants made from the plaintiffs’ wages for benefit in kind were wrongly made in breach of the relevant contracts of employment and that the plaintiffs are entitled to the repayment of those sums in full.
The employees’ evidence concerning their contracts of employment
105. It is a striking feature of this case that each of the defendants’ employees who gave evidence described making, and working under, a very different agreement with the defendants than that reflected in the written contract of employment which the plaintiffs now plead and which the defendants admit. In the paragraphs that follow, I will attempt to summarise the plaintiffs’ evidence in that regard. Then, I will consider the factual and legal implications of what, I have concluded, is the fundamental irreconcilability of the arrangements actually entered into between the parties, as disclosed by the uncontroverted evidence of the plaintiffs themselves, and the terms of the agreement between the parties set out in the written contracts of employment executed between them.
106. Each of the plaintiffs who addressed the point stated in evidence that he was presented with a contract of employment for signature at the airport while en route from Portugal to Ireland. The contract was in English, which most of the plaintiffs do not speak or read. None of them read it. Having signed the contract, none of them were provided with a copy of it.
107. Each of the plaintiffs stated that he relied on the oral explanation of the terms of his contract given to him by a representative of the defendants. The plaintiffs’ evidence about the terms of that explanation (and, hence, the basis upon which each agreed to work in Ireland) was broadly consistent and was as follows.
108. Instead of the standard hourly rate of pay (and appropriate multiple of that rate in respect of overtime) provided for by the CIREA and stipulated in the plaintiffs’ written contracts of employment, each plaintiff had agreed - and was told that he would receive - a net monthly payment (generally inclusive of any overtime, although some witnesses were told that overtime would be paid at €7.50 per hour) while working on the project. While the payment agreed differed for each plaintiff, the average figure was approximately €1,350. Each of the plaintiffs who was questioned about it confirmed that he had indeed received a monthly net payment in line with what he understood he had agreed.
109. Each of the plaintiffs was told that his accommodation, board, laundry and transport were to be provided by the defendants without charge. This was the arrangement that, according to a number of plaintiffs, applied when they were obliged to work away from home on construction projects in Portugal.
110. The defendants did not challenge the plaintiffs on any of these matters.
111. Each of the two employees called on behalf of the defendants gave a description of his employment agreement that suggested it was in some ways broadly similar to those between each of the plaintiffs and the defendants and in other ways quite different from them.
112. The first of those witnesses, Raul Pinto da Silva Teixeira, stated that he had signed a contract written in Portuguese in Ireland, though he was unable to produce a copy of it in court. He stated that, under the terms of his contract, his net monthly pay was to be €2,500 and his food, accommodation and transport were to be provided by the defendants. He stated that he got the money he was told he would get, although he was unable to produce any of his payslips in court. Mr Teixeira said that the pay he was promised - and which he received - warranted his move to Ireland in that it was substantially greater than his typical net pay of €1,000 per month in Portugal.
113. The second employee called as a witness by the defendants, Inacio Marthinho Gomes Freitas, stated that he had signed a Portuguese language version of his contract in an office in Portugal before leaving for Ireland. He too was unable to produce it (or a copy of it) in court. He stated that, under the terms of that contract, the defendants were to provide transport, food and lodging for him in Ireland and to pay him a net salary of €1,450 per month, plus €7.50 per hour for any overtime. When a copy of one of his payslips for the month of December 2007, identifying him as a Category B construction operative under the CIREA, was put to Mr Freitas in cross-examination, he was unable to explain the following aspects of it: why the payment recorded for the number of standard working hours attributed to him for the period was calculated at €16.52 per hour (the rate then applicable to Category B construction operatives under the CIREA); why the payment for the number of overtime hours attributed to him during the same period was calculated at €27.78 per hour (i.e. the applicable CIREA hourly rate plus one half, being the applicable CIREA overtime rate) when he had instead agreed an overtime rate of €7.50 per hour; and why deductions were recorded on his payslip for accommodation, board and laundry when he had agreed that the defendants were to provide him with those facilities free of charge.
114. Both Mr Teixeira and Mr Freitas went back to Portugal to work for the third defendant after their involvement in the project in Ireland ended.
115. I accept the unchallenged testimony of the plaintiffs concerning the basis upon which they agreed to work for the defendants on the project in Ireland. The evidence of both employees called by the defendants was directed - and, hence, limited - to the particular situation of each of them. I did not understand the defendants to make the case that the employment arrangements of all employees were the same, such that any discrepancy in the evidence of different employee witnesses in that regard would have to be resolved in favour of one party or the other. Happily, therefore, it is unnecessary for me to express any view on the veracity of the testimony in that regard of the two employees called on behalf of the defendants.
116. I find as a fact that the plaintiffs’ employment arrangements with the defendants, as established by the evidence just summarised, cannot be reconciled with the terms of each plaintiffs’ executed written contract of employment with the defendants.
117. As neither side addressed this aspect of the evidence in the written legal submissions they provided, the Court raised the matter ex proprio motu in the course of legal argument at the conclusion of the case.
118. In response, Counsel for the defendants appeared to suggest that the evidence of what was orally agreed between the parties at the airport is entirely consistent with the evidence constituted by the relevant portion of the written contract signed by each of the plaintiffs (in what was, to each of them, a foreign and incomprehensible language) in that the former was merely the defendants’ helpful simplification of the latter for the plaintiffs’ benefit, in deference to the plaintiffs’ relative lack of education or sophistication.
119. I cannot accept that submission for two reasons. First, I cannot see why the defendants could not have simply and clearly explained to each plaintiff what his hourly wage rate was to be (in accordance with the grade he was to be given) and the circumstances in which he was entitled to overtime payments, both at time and a half and at double time. Similarly, the proposed deductions for accommodation, board and laundry, together with any proposed deduction for the provision of transportation as a benefit in kind, could have been readily and easily described, as could the applicable rates of income tax in this jurisdiction (both PAYE and PRSI). I venture that it would rightly be considered offensive to suggest that other construction workers within the State (of whatever nationality) could not readily comprehend such an explanation in their own language of the proposed calculation of their monthly wages.
120. Second and perhaps more fundamentally, the explanation proffered requires the Court to accept that the description provided to each plaintiff at the airport of the terms of his proposed employment is capable of being construed as a bona fide attempt by the defendants to explain the net effect of the relevant terms of the written contract of employment that each plaintiff did not understand but was nevertheless required to sign.
121. But, of course, that requires the Court to accept that the net payment received by each plaintiff each month, which every plaintiff who addressed the point in evidence stated was indeed the payment he had bargained for, was no less than the proper outworking of the terms of the written contract of employment that each employee had signed without comprehending. And, yet, the findings I have already made establish that the ostensible calculation of each such payment in accordance with the terms of the plaintiffs’ written contracts of employment (and, hence, on the face of each employee’s payslip) involved the deliberate and significant understatement of the number of hours each plaintiff actually worked; the unwarranted (and I am satisfied, wrongful) deduction of various sums from the wages of several plaintiffs as benefit in kind; and the unexplained deduction of various sums from the plaintiffs’ wages for the provision of laundry services by weight in respect of laundry that was never weighed and, in respect of certain plaintiffs, never done.
122. I cannot think of a more elegant or obvious proof that what was described to each of the plaintiffs at the airport and what is set out in the written contract of employment that each plaintiff was required to sign are fundamentally different, rather than broadly equivalent, things. It is clear to me that it was only by engaging in the various stratagems just described that the defendants were able to make the payments that each plaintiff actually received in accordance with the former equate with his or her significantly greater entitlements under the latter.
A contract for an unlawful purpose
123. Further, I have come to the conclusion, reluctantly but firmly, that on the balance of probabilities the explanation for that irreconcilable conflict lies in the further fact, which seems to me to follow as the only reasonable inference from the facts I have already found, that the defendants designed, and procured the execution of, the written contracts at issue in these proceedings for the unlawful purpose of circumventing the employment law and public procurement law of the State.
124. While I do not purport to express any view on the law in this respect for the purpose of the present judgment, it was widely understood that s. 20 of the Protection of Employees (Part-Time Work) Act 2001, as well as expressly conferring the protection of a wide range of employment law statutes on any person who has entered into a contract of employment that provides for his or her being employed in the State, also operated to confirm that any such person was covered by the provisions of any applicable registered employment agreement. On that view of the law, as it was then understood to be prior to the decision of the Supreme Court in McGowan & Ors v The Labour Court [2013] IESC 21, the plaintiffs would have been statutorily entitled to the benefit of the CIREA as against the defendants, subject to whatever argument there might be concerning the effect of the decision of the European Court of Justice in the case of Laval un Partneri v Svenska Byggnadsarbetareförbundet (C-341/05) [2007] ECR I-11767. The EU and domestic law rules in relation to the terms and conditions of employment to be applied to such workers are designed, in significant part, to avoid “social dumping”, whereby foreign service providers can undercut local service providers because their labour standards are lower.
125. The project at issue in these proceedings was self-evidently one subject to the rules on public procurement then applicable. In the course of the trial, the plaintiffs called as a witness Gerard Carey, a senior executive with Limerick County Council and its representative on site. When Mr Carey was asked about the terms of the contract between Limerick County Council and Bóthar Hibernian, objection was taken on behalf of the defendants on the ground that the defendants were not a party to that contract and that any evidence concerning it would be more prejudicial (to the defendants) than probative (of any issue in the proceedings). In the face of that objection, the plaintiffs did not pursue that line of questioning with Mr Carey any further.
126. However, it seems to me that, without reference to the specific contract in place between Limerick County Council and Bóthar Hibernian, I can - and must - take judicial notice of the fact that public works contracts, such as those which were at the material time governed by the Government Departments and Local Authority (GDLA) standard form, invariably contained a clause requiring contractors and all nominated sub-contractors to ensure that rates of pay and conditions of employment of all workers complied with all applicable law and were, in any event, no less favourable than those for the relevant category of worker under any registered employment agreement. That seems to me to reflect the legitimate public policy that, while proper competition on price and quality in the provision of public works services, subject to the principles of non-discrimination, transparency and equality enshrined in the TEU and TFEU Treaties, is both necessary and appropriate, it cannot be allowed to operate in an untrammelled way so as to diminish the employment law rights of workers. There should be no ‘race to the bottom’ where the rights and conditions of workers are concerned.
127. Against that background, I am satisfied that each of the written contracts of employment between the plaintiffs and the defendants was a contract for an unlawful purpose, namely to conceal from the relevant authorities (NERA in relation to the employment law aspects of the matter and Limerick County Council in relation to the requirements of the public procurement process) that RAC Eire did not intend to comply with the requirements of the CIREA as regards the terms and conditions of employment of the construction operatives it employed to work on the project.
128. When the Court raised its concerns in that regard ex proprio motu at the conclusion of the evidence, it appeared to be suggested on behalf of the defendants that, in circumstances where neither the plaintiffs nor the defendants had raised any issue on the lawfulness of the written contracts of employment as pleaded and admitted, it was not open to the Court to do so. I do not accept that submission. I share the view adopted by McWilliam J. in Starling Securities Limited v Francis X. Woods & ors, High Court, unreported, May 24, 1977 that, once clear evidence of illegality has been introduced at trial, the Court is not at liberty to ignore it.
129. What is the consequence of the finding I have made that the defendants procured the execution by the defendants of the written contracts of employment at issue for their own unlawful purpose? It seems to me that the answer can be found in the following passage in the decision of this Court (per Finlay P.) in Whitecross Potatoes (International) Ltd v Raymond Coyle [1978] ILRM 31 (at 33):
“If this was a contract which, on the apparent intention of the parties at the time of its formation, could be and would be carried out in a legal fashion then even though one of the parties, namely the defendant, in reality intended to carry it out in an illegal fashion it is enforceable.”
130. Applying that principle to the circumstances of the present case, I am satisfied that the plaintiffs could, and did, lawfully carry out all of their obligations under the contract. That is to say, they travelled to Ireland and performed all of the duties associated with the post that each had taken up until the employment of each terminated. The defendants’ intention to treat as a sham those clauses of the contract dealing with, first, the remuneration of the plaintiffs in accordance with the CIREA and, second, the nature and level of the permissible deductions that might be made from the plaintiffs’ wages, does not render the contract unenforceable at the instance of the plaintiffs.
Miscellaneous employment law claims and other reliefs sought
131. As a further aspect of their claim for damages for breach of contract, the plaintiffs have pleaded a breach of the non-discriminatory equality clause statutorily implied into every contract of employment by operation of s. 30 of the Employment Equality Acts, as amended, whereby the defendants were obliged not to treat the plaintiffs, as Portuguese nationals, less favourably than employees of any other nationality. However, no evidence was adduced concerning the existence, much less the more favourable treatment, of any non-Portuguese national employee of the defendants performing work not materially different to that of the plaintiffs and, accordingly, this aspect of the claim must fail.
132. In the statement of claim delivered on the 2nd November 2012 in each of the three sets of proceedings now before me, ‘[d]amages pursuant to the Employment Equality Acts, as amended’ are claimed in the alternative to damages for breach of contract. As I understand the evidence adduced and the arguments advanced at trial, the case has been presented as a claim for damages for breach of contract only. Accordingly, it is unnecessary for me to consider the former head of claim and I do not propose to do so.
133. Nor do I propose to address the plaintiffs’ claims, evidently advanced for the first time in the guise of ‘further particulars of claim’ dated the 11th June 2014, for damages for breach of contract for the defendants alleged failure to comply with: the Organisation of Working Time Act 1997; the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (S.I. No. 473/2001); the Payment of Wages Act 1991; the Minimum Notice and Terms of Employment Acts 1973 to 2001; the Industrial Relations Acts 1946 to 2004, the Unfair Dismissals Acts 1977 to 2007; Regulation (EC) No. 561/2006 (“the Drivers’ Hours Regulation”) ; or the Safety Health and Welfare at Work Acts and Regulations. Those claims are repeated without elaboration or explanation in written submissions furnished on behalf of the plaintiffs at the conclusion of the trial, together with a new claim that the defendants were in breach also of the terms of Council Directive 92/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites.
134. In both the statement of claim delivered in each case and in the plaintiffs’ written submissions, repeated references are made to a complaint or complaints unsuccessfully brought before a Rights Commissioner under the Payment of Wages Act 1991 arising out of the matters the subject of the present proceedings. Similarly vague and general references are made to a complaint or complaints brought before the Equality Tribunal, presumably pursuant to the terms of the Employment Equality Acts. No attempt was made in the course of the trial to adduce any evidence of these complaints or of their outcome. The implicit suggestion appears to be that the Court should purport to exercise an original, rather than a supervisory jurisdiction, in respect of those matters without reference to, or any concern regarding, the extent to which they have already been addressed or resolved by the body or bodies responsible under the relevant statutory scheme of enforcement in each case. In a manner that, I am sorry to say, strikes me as quite unreal, the plaintiffs’ both in their submissions and in argument at various stages of the trial invited the Court to adjudicate on the extent, if any, to which the Rights Commissioner was deliberately misled by the defendants, and to do so at second or third hand solely by reference to what is set out in certain inter partes correspondence.
135. It does not seem to me that this aspect of the plaintiffs’ case has been properly pleaded. Further, I do not think that the Court has heard any, or any sufficient, evidence concerning the matters the subject of those claims that would enable it to properly address them, even if it were open to the Court to purport to exercise an original jurisdiction in that regard. Accordingly, it is unnecessary for me to address the argument, forcefully made on behalf of the defendants, that the Court has no such original jurisdiction and I do not propose to do so. Nor is it necessary for me to address the question of the extent to which an alleged breach of statutory duty is capable of sounding in damages as part of a claim for breach of contract.
136. In each of the three sets of proceedings before the Court, the plaintiffs seek two declarations: first, a declaration that “the defendants failed to comply with the contractual entitlements of each of the plaintiffs pursuant to the contract of employment between each of the plaintiffs and the defendants”; and second, a declaration that “the defendants relied on fraudulent records of hours worked in calculating wages due to each of the plaintiffs.” In my view, the first declaration sought is superfluous and the second is simply a proposition of fact that does not purport to determine any issue of right as between the parties. Accordingly, in the exercise of the Court’s discretion, I do not propose to make the first declaration sought and, as a matter of law, I do not propose to make the second.
Damages
137. In “further particulars of claim”, dated the 11th June 2014, for the first time the plaintiffs raise a claim for aggravated damages. In the written submissions filed on their behalf at the conclusion of the trial, the plaintiffs indiscriminately seek damages for breach of contract; exemplary damages; compensatory damages; aggravated damages; expectation interest; restitution damages and interest.
138. The plaintiffs’ claims have been advanced and argued as a claim by each for breach of contract and the plaintiffs have succeeded on that basis.
139. The defendants submit that the plaintiffs’ claims for damages under other heads have not been properly pleaded and, further, point to the principles considered and applied in the case of Ahmed v HSE [2007] IEHC 312. In that case Laffoy J. cited with approval the decision of Clarke J. in Carroll v Bus Atha Cliath [2005] IEHC 278 to the effect that, where damages fall to be assessed for breach of contract, rather than in tort, it is not permissible to award general damages for frustration, mental distress, injured feelings or annoyance caused by the breach. There was, at one point, a suggestion that one of the plaintiffs, Antonio Barbosa Moreira, had suffered the onset, or exacerbation, of the skin condition psoriasis in consequence of being required to bathe in contaminated water in the accommodation building. However, the evidence of Dr Patrick Harold, a general practitioner who had examined Mr Moreira in the course of the proceeding (though not at the material time), did not establish the necessary causative link. Accordingly, there is no basis upon which an award of general damages could be made in the circumstances of the present case.
140. Returning to the decision in Ahmed v HSE, Laffoy J. next addressed the argument that the the three heads of damages identified by Finlay C.J. in Conway v Irish National Teachers’ Organisation [1991] 2 I.R. 305 (at 317) as potentially relevant to a claim in tort for breach of a constitutional right - namely, ordinary compensatory damages; aggravated damages; and punitive or exemplary damages - should apply to an award of damages for breach of contract. In doing so, Laffoy J. stated as follows:
“Counsel submitted, without citing any authority, that the same principle should be applicable to the award of damages for breach of contract. I do not accept that submission is correct. I cannot see, in point of principle, how aggravated or exemplary damages could be awarded for breach of a term of a contract of employment where there is no entitlement to general damages...”
141. Having considered the evidence in this case and the submissions that I have just described, I have come to the conclusion that the only damages that it is appropriate to award are damages for breach of contract.
142. However, it does seem to me appropriate to order, pursuant to the terms of s. 22 of the Courts Act 1981, the payment by the defendants of interest at the specified rate on the whole of the sum to which each plaintiff is entitled as damages for breach of contract for the whole period between the date upon which each plaintiff’s cause of action accrued and the date of the present judgment.
Conclusions
143. In summary, for the reasons set out above, I have come to the following conclusions.
(i) The defendants engaged in the systematic and deliberate under-recording of the plaintiffs’ hours of work, leading to the underpayment of the plaintiffs’ wages in breach of the contract of employment of each.
(ii) The plaintiffs’ hours of work remained broadly the same after the end of July 2008 as they had been before then, such that the systematic and deliberate under-recording of their hours of work and the underpayment of their wages continued throughout the entire period of employment of each.
(iii) Each plaintiff is entitled to recover, as damages for breach of contract, the full amount of the underpayment of his or her wages as calculated by the plaintiffs’ expert accountant Mr McGuinness.
(iv) The accommodation provided to the plaintiffs by the defendants was of a deplorable - perhaps even, a dangerous - standard. Therefore, no deduction from the plaintiffs’ wages for the provision of that accommodation was justified. The plaintiffs are entitled to recover those deductions in full as damages for breach of contract.
(v) The board provided to the plaintiffs by the defendants was of a reasonable standard and the deduction made from the plaintiffs’ wages in that regard was fair and reasonable. The plaintiffs are not entitled to recover damages in that regard.
(vi) The deductions that the defendants made from the plaintiffs wages in respect of the provision of laundry services were not made in accordance with the terms of the contract of employment between the parties and were not fair and reasonable. The plaintiffs are entitled to recover those deductions in full.
(vii) The deductions that the defendants made from the plaintiffs’ wages for benefit in kind were wrongly made in breach of the relevant contracts of employment and the plaintiffs are entitled to the repayment of those sums in full.
(viii) The defendants made employment arrangements with the plaintiffs regarding pay and deductions quite different from those described under the terms of each plaintiff’s executed written contract of employment.
(ix) Each of the written contracts of employment between the plaintiffs and the defendants was a contract for an unlawful purpose, namely to enable the defendants to conceal from the relevant authorities (NERA in relation to the employment law aspects of the matter and Limerick County Council in relation to the requirements of the public procurement process) that RAC Eire did not intend to comply with the requirements of the CIREA as regards the terms and conditions of employment of the construction operatives it employed to work on the project.
(x) Once clear evidence of illegality has been introduced at trial, the Court is not at liberty to ignore it.
(xi) However, the contract in this case remains enforceable at the instance of the plaintiffs because it was at all times capable of being carried out, and was carried out, by them in a legal fashion and without knowledge of the defendants’ unlawful purpose. The defendants’ treatment as a sham of those clauses of the contract dealing with, first, the remuneration of the plaintiffs in accordance with the CIREA and, second, the nature and level of the permissible deductions that might be made from the plaintiffs’ wages, does not render the contract unenforceable at the instance of the plaintiffs.
(xii) In the particular circumstances of this case, it is unnecessary and inappropriate for the Court to address the employment law claims advanced by the plaintiffs, beyond their claim for damages for breach of contract, and the Court has not done so.
(xiii) It is unnecessary to grant the first declaration sought by the plaintiffs and inappropriate to grant the second. The Court will therefore grant neither.
(xiv) In the particular circumstances of this case, it is inappropriate for the Court to consider the various heads of damage claimed by the plaintiffs beyond their claim for damages for breach of contract, and the Court has not done so.
(xv) It is appropriate to order, pursuant to the terms of s. 22 of the Courts Act 1981, the payment by the defendants of interest at the specified rate on the whole of the sum to which each plaintiff is entitled as damages for breach of contract for the whole period between the date upon which each plaintiff’s cause of action accrued and the date of the present judgment and the Court will so order.
