FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BERNARD WELDON - AND - STEPHEN POLEON DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Decision R-061244-Wt-08
BACKGROUND:
2. Introduction
While this appeal was referred to the Court using the form appropriate to an appeal of a Rights Commissioner’s recommendation under the Industrial Relations Acts 1946 to 2004, it relates to a decision of the Rights Commissioner made under the Organisation of Working Time Act 1997. It was agreed at the commencement of the case that the appeal was, in fact, pursuant to s. 28 of the Act of 1997 and Court has dealt with the matter accordingly. The Court heard the appeal on 9th March, 2009.
Background
The Claimant, Mr Poleon, was employed by Mr Weldon, the Respondent, between April 2006 and December 2007. The Claimant contends that he received less than his statutory entitlement of annual leave during this period. The Respondent, who contends that the Claimant received 36 days annual leave in respect of his employment which extended over 21 months, denies the claim.
The Court was furnished with copies of cheques drawn on the Respondent’s account and made payable to the Claimant in respect of certain periods in which, it is claimed, the Claimant received annual paid leave. Copies of pay slips issued to the Claimant in respect of these periods were also furnished to the Court. While the amounts paid to the Claimant in respect of these periods was not in dispute the Claimant did dispute the breakdown of the amounts paid to him as between time worked and annual leave. The Respondent did not maintain records showing the times at which annual leave was granted to the Claimant or the hours which he worked.
Conclusion
The Respondent did not maintain records in respect of the claimant’s employment at the material time, as is required by S.I. 473/2001:Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001, made pursuant to section 25 of the Act. Hence, in accordance with section 25(4) of the Act the onus of proving that the relevant provisions of the Act were complied with rests with the Respondent.
There is a conflict of evidence between the Claimant and the Respondent on the amount of annual leave for which the Claimant was paid over the currency of his employment. The amount which the Claimant received in respect of each of the pay periods in question is not in issue. But the Claimant contends that he in fact worked during some of the time which the Respondent says was paid for as annual leave. Neither the Claimant nor the Respondent was in a position to corroborate their evidence on what part of the payments made were in respect of time worked and what represented pay for annual leave. The Court did not find the documentary evidence adduced to be of assistance in resolving that conflict.
The Act provides that where records are not maintained in the statutory form the onus of proving compliance with the Act rests on the Respondent. That means that it is for the Respondent to satisfy the Court, on the balance of probabilities, that the Claimant received his full entitlement under the Act.
The Court is faced with uncorroborated evidence on both sides which is in direct conflict. In these circumstances the Court has significant doubt as to which version is correct. In accordance with s.25(4) of the Act the Court must resolve that doubt in favour of the Claimant.
The Claimant was entitled to 35 days annual leave in respect of his period with the Respondent. The Court believes, as a matter of probability, that the Claimant received at least 20 days annual leave over this period.
DETERMINATION:
In the circumstances the Court finds that the Respondent did contravene the Act in relation to the Claimant. The Court determines that the Respondent pay to the Claimant compensation in full and final settlement of his claim in the amount of €1,500 in respect of this contravention.
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
3rd April, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.