DWT1018

The complaints

The first-named Claimant claims that the Respondent contravened s.12 in not affording her daily breaks, s.14 in failing to provide additional compensation for working on Sundays, s.19 in not providing paid annual leave and s.21 in not providing any of the benefits specified by that Section in relation public holidays.

The second-named Claimant contends that the Respondent contravened s.14 of the Act in not providing additional compensation for working on Sundays, s.19 in not providing paid annual leave and s.21 in not providing any of the benefits specified by that section in relation public holidays.

The complaints were heard by a Rights Commissioner who found that they were not well-founded. The Claimants appealed to this Court.

Onus of proof

Section 25(1) provides: -

• 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

• (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The evidence

Evidence was given by Ms Alina Danylyuk who is a Director of the Respondent. This witness told the Court that the Claimants worked part-time throughout the period of their employment with the Respondent. The witness prepared rosters which were posted in the various shops. At the end of the week the hours worked by the Claimants and other members of staff were recorded on a spreadsheet which the witness prepared, a copy of which was put in evidence. The Court was told that the Respondent’s shops did not open on public holidays and the Claimants were afforded a day off with pay in respect of those holidays. According to Ms Danylyuk the Claimant worked some Sundays and were paid time plus one-third for those days. The witness also told the Court that the Claimants received paid annual leave. In the case of the first-named Claimant the Court was told that she received two weeks’ paid annual leave in October 2007 and that the second named Claimant received her paid annual leave in August 2007. Finally, it was Ms Danylyuk’s evidence that the Claimants were afforded breaks in accordance with the Act.

Ms Danylyuk told the Court that the Respondent was only commencing in business at the time the Claimants were employed. Neither she nor her co-Directors were familiar with the requirements of Irish employment law and practice. The witness testified that pay-slips were generated in respect of the Claimants (copies of which were put in evidence) but she did not appreciate at the time that they should have been given to the Claimants. It was Ms Danylyuk’s evidence that the Claimants were paid monthly and in cash.

Both Claimants testified that they were employed in a full-time capacity by the Respondent and worked between eight and ten hours per day. It was their evidence that they worked most Sundays and were paid the same rate as for all other days. They said that the shop traded on public holidays and they worked on those holidays if rostered. Both Claimants told the Court that they received no additional benefit in respect of the public holidays on which they worked.

The first-named Claimant told the Court that she recorded her hours of work on a calendar, a copy of which was put in evidence. The second-named Claimant recorded her hours in a pocket diary which she later transcribed in a single document which was furnished to the Court. They accepted that these documents were at complete variance with the records put in evidence by the Respondent.

The first-named Claimant told the Court that on days on which she worked up to ten hours she received one thirty-minute break, usually at lunch time. The first-named Claimant also told the Court that she received two weeks’ unpaid holidays in July 2007. The second-named Claimant told the Court that she took unpaid holidays in August 2007 for one week. The second-named Claimant had no issue in relation to breaks.

Conclusions of the Court

This case illustrates the difficulties that can be faced by employers, employees and the enforcement bodies in dealing with claims under the Act where the statutory records have not been maintained. The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, S.I 473 of 2001, provide, in effect, that working time, rest periods and holidays taken must be recorded weekly in writing for each employee. They further provide that in the absence of electronic recordings systems the records must be signed by the employer and the employee and a copy of the records furnished to the employee for retention by him or her. It is self-evident that proper records are of central utility in defending a claim of non-compliance and can be determinative in showing compliance.

Where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance. It is the experience of the Court that, in practice, this is often a heavy burden which cannot be easily discharged where there is contradictory oral testimony and an absence of reliable corroborative evidence.

In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. InMiller v Ministry of Pensions[1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

• “[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”

Time-limit

Section 27(4) provides, in effect, a time-limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. The within complaint was presented to the Rights Commissioner on 27th October 2007. Hence, by application of the time-limit at s.27(4), the Court can only have regard to contraventions found to have occurred on or after 28th March 2007. However s.27(5) allows the Court to enlarge the time-limit by up to a further 12 months where reasonable cause is shown. The Claimants applied to the Court for an extension of time in accordance with that provision.

The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -

• It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
  
  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

Redress

In considering the question of redress the Court has taken account of the economic value of annual leave and public holidays to which the Claimants were entitled calculated by application of the rate specified by the ERO. The Court has also taken account of its estimate of the economic value of the loss of premium time to which the Claimants were entitled in respect of Sunday working (measured at time plus one-third). Account has also been taken of the failure of the Respondent to afford adequate breaks to the first named Claimant.

The Court measures the quantum of compensation which is fair and equitable at €2,300 in the case of he first-named Claimant and at €2,150 in the case of the second-named Claimant. Of these amounts €1,600 in each case is in respect of economic loss and the remainder is in respect of compensation for the contraventions of the Act which were found to have occurred.

Determination

The appeal is allowed and the Decision of the Rights Commissioner is set aside and substituted with a determination that the within complaints are well-founded and an order for redress in the terms set out herein



Signed on behalf of the Labour Court



Kevin Duffy
22nd February,2010______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.