FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THOMAS DIXON (REPRESENTED BY LARKIN TYNAN & COMPANY SOLICITORS) - AND - RIMANTAS PLYTNINKAS (REPRESENTED BY MRCI NOEL G. MC ARDLE & CO.SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision R-072108-WT-08/JC
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court on 16th October 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 7th September, 2011.The following is the Determination of the Court:
DETERMINATION:
- This case comes before the Court by way of an appeal by Mr Thomas Dixon (the Appellant) against a decision of the Rights Commissioner that the Complainant Mr Rimantas Plytninkas had been denied his entitlements pursuant to a series of complaints he had submitted pursuant to Sections 15, 19 and 21 of the Organisation of Working Time Act 2000 (the Act).
Background
The Complainant took up employment with the Appellant as a farm labourer in February 2005. The Complainant’s position is that the Appellant notified him that his employment had been terminated on 19th July 2008. The Appellant’s position is that the Complainant terminated his own employment in May 2008.
The Complainant presented a complaint to the Rights Commissioner under the Act on 14th November 2008.
Summary of the Complainant’s Position
The Complainant’s legal representative said that the Complainant was initially employed to work four hours per day Monday to Friday each week for which he would be paid €350 per week. After a short number of months his hours increased until he was working 12 hours per day six days per week and was occasionally required to work four hours on Sunday morning. Initially his pay remained unchanged. His pay increased to €400 per week on 1st February 2007 and to €450 per week on 1st February 2008. His main duties were to do the morning and evening milking and some other related farm duties. His working day began at 7:00 a.m. His first task was to help to milk the 119 cows on the farm. This work normally finished around 8:30 after which he cleaned the machinery and the work area. Thereafter he set about completing tasks that were set for him by the Appellant. This involved him working around the farm until circa 5:00 p.m. when he assisted with the evening milking. This work finished around 7:00 p.m. He carried out similar work on Saturday over a 12- hour period. He sometimes worked for four hours on Sunday.
He said he did not receive any annual leave contrary to Section 19 of the Act. He further said he did was denied his public holiday entitlements contrary to Section 21 of the Act.
The Appellant legal representative stated that the complaint was statute barred and that the complainant had failed to advance before this Court any reasonable grounds for an extension of time.
He said the Complainant had been employed to undertake four hours work per day for which he was paid €350 Euro per week. This was increased as outlined by the Complainant. He said that on occasions the Appellant asked the Complainant to undertake some additional duties on the farm. As a result his working hours increased on those occasions. However he said this only happened occasionally and amounted to no more than a total of 35 to 40 hours work per week on such occasions. He said at no time was the Complainant required to work on Saturday or Sunday.
He said that the Complainant went home each year for the months of December and January and that he was paid in the region of €700 at that time in lieu of holiday pay. He said the Complainant did not work on public holidays other than St Patrick’s Day as this fell in the middle of lambing season when time off was not an option.
Preliminary Issue
The Appellant contended that the Rights Commissioner erred in law in allowing an extension of time. The appellant submitted that the Complainant had advanced no grounds justifying such an extension of time and the Rights Commissioner had given no reason for granting the extension.
The Complainant’s legal representative said his client had sought an extension of time before the Rights Commissioner on the grounds that he could not read or speak English, was not familiar with his rights in this country, was unaware of the legal system that enabled him to enforce his rights until after his employment had ended and did so as soon as his entitlements had been explained to him by a migrant support agency. He said he acted promptly from the time he became aware of his rights. He further submitted that, contrary to law, there were no signs or notices posted anywhere in his place of employment setting out his statutory entitlements.
Findings of the Court
Section 27(4) of the Act provides that a Rights Commissioner or the Labour Court shall not entertain a complaint under Section 27 if it is presented to the Commissioner after the expiration of 6 months beginning on the date of the contravention to which the complaint relates.
Section 27(5) of the Act empowers the rights commissioner to extend the period in which a complaint may be made by a further 12 months if “he or she is satisfied that the failure to present the complaint within the six month period was due to reasonable cause”.
The rights commissioner formed the view that the failure of the Appellant to provide the Complainant with details of his rate of pay, hours of work, annual leave and public holiday entitlement meant that the Complainant could not know what his entitlements were and consequently was not in a position to determine if his statutory entitlements were being met. She found that the circumstances in this case amounted to reasonable cause and in accordance with the provisions of Section 27(5) of the Act extended the time limits by an additional 12 months .
The Complaint was submitted to the Rights Commissioner on 14th November 2008. The extension allowed by the Rights Commissioner means that the relevant period in respect of which breaches of the Act may be complained of commences on 15th May 2007.
Determination
Having heard the evidence presented to it and the submissions of the legal representatives of both parties the Court upholds the decision of the Rights Commissioner in this case.
Section 15
The Complainant gave evidence that he was typically required to work 66 hours per week contrary to the provisions of Section 15 of the Act. He said he started work at 7:00 a.m. each morning and worked through until 7:00 each evening Monday through Saturday. He said he was required to work on Sunday on occasions. He said he had breakfast around 9:30 and had breaks over the day as required. He said that he ate lunch with his employer’s elderly parents each day.
The Appellant gave evidence that the Complainant was required to work four hours per day initially and thereafter to work in the region of thirty to forty hours per week on occasions. He said the Complainant was never required to work on Saturday or Sunday as he was available himself on those days to look after the farm. He said he did not keep records of the Complainant’s hours of work. He said that he did not prepare the records of the Complainant’s attendance at work that had been presented to the Rights Commissioner. He said that those records were incorrect and were not an accurate record of the hours worked and should not be relied upon.
Findings of the Court
The Court finds that the Appellant is required by Section 25 of the Act to keep records of the Complainant’s hours of work and that he failed to do so. Accordingly in accordance with the provisions the onus of proving compliance with the Act is on the Appellant. The Court finds that he failed to discharge this onus and did not prove compliance with the Act in this regard.
The Court notes that there was a direct conflict of evidence between the parties with regard to the precise number of hours worked by the Complainant. Having examined the documents provided to it and on the basis of the evidence presented to it the Court finds that, on the balance of probabilities, the Complainant worked an average of 53.5 hours per week. This consisted of 10 hours each day Monday to Friday and 3.5 hours on Saturday excluding breaks.
Determination
The Court determines that the Complaint is well founded and rejects the appeal.
Section 19
The Complainant in evidence said that he did not receive any paid annual leave for the relevant leave year. He said he did not receive any lump sum payment from the Appellant when he went home in December each year.
The Appellant said that he gave the Complainant €700 in cash each year when the Complainant was going home in December. He said he did not keep records of the payment nor did he keep records of any leave taken by the Complainant.
Findings of the Court
The Court finds that the Appellant failed to keep records as required by Section 25 of the Act and accordingly the burden of proving compliance with the Act was on him to discharge. He failed to discharge that burden.
The Court notes that there is a direct conflict of evidence between the Complainant and the Appellant on this matter. The Court also notes the documentation provided by the Complainant to the Court which included an extrapolation by the Appellant’s accountant of payments made to the Complainant in the course of 2007. These showed that the Complainant was paid by a combination of cash and cheque and these amounts fluctuate significantly and support the contention of the Appellant that he paid some monies in respect of annual leave entitlement over the period.
Determination
Taking these figures into account the Court concurs with the Rights Commissioner’s decision and determines that the Complainant is, in accordance with the provisions of Sections 19, 20 and 23 of the Act, due a total 13.3 days leave arising out of the time worked in the period January 2007 to 30th May 2008.
The Appeal is rejected.
Section 21
The Complainant said in evidence that he was neither paid for any of the public holidays to which he was entitled nor did he receive any other compensatory leave.
The Appellant said that the Complainant received his entitlement to all public holidays by way of a paid day off on the day with the exception of St Patrick’s Day which fell during lambing season and was exceptionally busy. The Appellant said he did not keep records in relation to public holidays as required by Section 25 of the Act.
Findings of the Court
The Court concurs with the findings of the Rights Commissioner in this regard.
Determination
The appeal is rejected.
Determination:
The Court rejects the appeal and upholds the decision of the Rights Commissioner. The Court requires the Appellant to pay the Complainant the sum of €4,000 in respect of the breaches of the Act above.
Signed on behalf of the Labour Court
Brendan Hayes
11th October 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.