DWT12182

Background

The Respondent is a provider of circus entertainment throughout Ireland. The Claimant, who is a native of Morocco, was recruited in his native country to work for the Respondent and commenced employment on or about 5^thMarch 2003. He remained in the employment of the Respondent until 6^thApril 2009. He is a qualified motor mechanic and he was recruited to work in that capacity. There is, however, a significant difference between the parties concerning the range of duties actually performed by the Claimant, which is a central issue in this case. He entered Ireland on a valid work permit for the position of a circus rigger. It is accepted that the Claimant was not employed on written contract of employment nor was he provided with written particulars of his conditions of employment. His wages were paid in cash. The Claimant worked for approximately 9 or 10 months per year.

The Respondent did not maintain records relating to the hours worked by the Claimant as are required by Section 25(1) of the Act.

The Claimant contends that the Respondent contravened Section 12 of the Act by failing to provide his with adequate breaks; Section 13 in failing to provide him with adequate weekly rest; Section 14 by failing to pay him a premium in respect to Sunday working; Section 15 by requiring him to work in excess of 48 hours per week; Section 19 by failing to provide him with his statutory entitlement in respect to public holiday and Section 21 in failing to provide him with paid annual leave.

The Claimant presented a complaint to the Rights Commissioner service of the Labour Relations Commission on 21st July 2009. The Rights Commissioner found that having regard to the six-month time limit stipulated by Section 27(4) of the Act the cognisable period for the purpose of that subsection was from 22^ndJanuary 2009 until the termination of the Claimant’s employment on 6^thApril 2009. In exercise of her powers under Section 27 (5) the Rights Commissioner extended the time limit by a further 6 months to 22^ndJuly 2008.

The Rights Commissioner found that while the Claimant claimed to have worked 77 hours per week his actual working hours were 45 per week. On that basis she found that Section 15 of the Act had not been contravened. She upheld the remaining complaints and awarded the Claimant compensation in the amount of €4,000.

The Respondent appealed against the whole of the Rights Commissioner’s Decision, including her decision to extend time pursuant to Section 27 (5) of the Act. The Claimant appealed against so much of the Decision as found that the complaint alleging a contravention of Section 15 of the Act was not well founded.

Preliminary issue – Time limit

Counsel for the Respondent, Mr. McKenna B.L., submitted that the Rights Commissioner erred in extending time. The import of Counsel’s submissions on this point appears to be that the time limit starts to run from the commencement of the contraventions complained of. In advancing that submission Counsel pointed out that the Claimant contends that the various contraventions occurred throughout the continuance of his employment. He commenced working for the Respondent on 5^thMarch 2003 and it was submitted that the time-limit commenced from that date. On that basis it was contended that the claim was statute barred by the time it was presented on 22^ndJuly 2009 and could not be saved by any extension available under Section 27(5) of the Act.

InMinister for Finance v Civil and Public Services Union & Ors[2007] 18 E.L.R. 36, the High Court (per Laffoy J.) held that the jurisprudence that generally governs the application of limitation periods under the Statute of Limitations 1957 should apply to statutory time-limits such as that in issue in the instant case. The contraventions of which the Clamant complains were continuing in nature. By analogy with the position in actions grounded on a continuing tort, such as trespass or nuisance, a fresh cause of action accruesde die in diem. Accordingly the time limit prescribed by Section 27(4) of the Act does not run until the cessation of the contraventions upon which the complaint is grounded. In this case the Clamant contends that the contraventions of which he complains continued up to the date on which his employment terminated on 6^thApril 2009. The Rights Commissioner correctly held that it was from that date that the time limit started to run. The effect of Section 27(4) of the Act is, however, that only those contravention which occurred within the six-month period before 6^thApril 2009 are cognisable for the purpose of obtaining redress unless a longer period is allowed under Section 27(5) of the Act. The Rights Commissioner allowed an extension of a further six months although it was open to her to extend time by a further twelve months.

The Respondent contends, in the alternative, that the Rights Commissioner was incorrect in allowing an extension of time.

In a line of previous Determinations, starting with that inCementation Skanska v Carroll(Determination WTC0333) (28^thOctober 2003), this Court held that the test for extending time for reasonable cause shown should be analogues to that enunciated by Costello J (as he then was), inO’Donnell v Dun Laoughaire Corporation[1991] I.L.R.M 30, for extending time pursuant to O.84 r.21 of the Rules of the Superior Courts 1986. In Cementation the Court formulated the test as follows: -

• It is the Courts 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 his or her 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.
  
  In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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 extensionof 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.

In the Court’s view this confluence of factors combines to explain the delay and afford a justifiable excuse for the delay. The Court must, however, go on to consider if the other factors identified in theCementationtest, namely, if the respondent has suffered prejudice by the delay and if the claimant has a good arguable case, can be resolved in the Claimant’s favour. On the question of prejudice, there is no question of records or other documentary evidence, which was available at the time the cause of action accrued, having been lost or destroyed by the passage of time. Nor have witnesses who were available then become unavailable by the time the claims were initiated. Finally, on the evidence, and in circumstances where the Respondent bears the burden of proving compliance with the Act (for reasons that will be explained later in this Determination) the Court is satisfied that the Clamant has presented a good arguable case.

For all of these reasons the Court is satisfied that the Clamant has shown reasonable cause for extending time in accordance with Section 27(5) of the Act and that the Rights Commissioner was correct in so doing. As previously noted, Section 27(5) of the Act allows for an extension of time of up to 12 months beyond the period stipulated in Section 27(4). The Rights Commissioner allowed an extension of six months and no issue was taken on behalf of the Clamant to the length of the extension granted. In these circumstances the Court affirms the Decision of the Rights Commissioner on this point.

The substance of the case

The Claimant’s case

The Claimant gave evidence with the assistance of an interpreter. He told the Court that he commenced working for the Respondent in March 2003 having been recruited in Morocco. He is a motor mechanic by trade and he understood that he was to be employed in that capacity. According to the Claimant, he in fact was required to undertake all forms of work associated with the running of the circus. He told the Court that he was responsible for work associated with publicising the circus in the various locations in which it appeared. This involved travelling to various town in advance of the circus’s arrival and distributing leaflets and placing posters advertising its arrival. He estimated that 45% to 50% of his working time was dedicated to this activity. He was also involved in assisting in erecting and striking the tent in which the circus performed. According to the Claimant, he also assisted in showing patrons of the circus to their seating and sometimes participated in circus acts.

The Claimant said that a typical working day commenced at around 9am. He would normally undertake publicity related duties and then return and undertake other work. When the circus travelled, as it did sometimes 3 times per week, he would assist in taking down the tent and loading it on a truck. The length of time that this would take depended on the state of the ground. If conditions were favourable this process would take form 9am to 3pm. When the tent and other equipment were loaded he would drive a truck to the intended location and assist in erecting the tent. He estimated that he would sometimes finish work at 2am the following morning.

The Claimant told the Court that he worked seven days per week and he estimated that on average he worked 11 hours per day, although he sometimes worked for longer. On that basis he estimated that he worked on average for 77 hours per week.

It was the Claimant’s evidence that while he did have some meal breaks depending on the requirements of his work, he did not have set breaks either in terms of duration or frequency. He said that he was never given paid holidays nor did he receive time off or additional pay in respect to public holidays. He worked on every Sunday and never received additional payments on that account.

The Claimant left his employment with the Respondent in April 2009 following a dispute concerning the standard of accommodation with which he was provided.

The Claimant denied that the Respondent paid for him to travel home between seasons. He said that air tickets were purchased by the Respondent but the costs were subsequently deducted from his wages.

Evidence of Evidence of Larbi Hmidouch

Mr. Larbi Hmidouch gave evidence in corroboration of the Claimant’s testimony. This witness was employed by the Respondent from April 2004 and November 2006, during which time the Claimant was also employed. The witness told the Court that he worked with the Claimant and that he had personally observed him undertaking a variety of tasks in the course of his employment, including work involving putting up and taking down the tent. According to the witness he worked an 11 hour day from 9am to 9pm, seven days per week. He said that the Claimant worked the same hours. He said that the Claimant was involved in fixing trucks and in putting up posters and was required to be at the circus when it was performing. When it was not performing he had to wash the tent and prepare it for the nest performance.

This witness confirmed that he never received regular breaks although he did receive a lunch break and he had breakfast before work commenced.

This witness confirmed to the Court that he had no claims in being against the Respondent.

The Respondent

Evidence was given by Ms. Tara Gerbola, who with her husband is the owner of the Respondent business. She said that the circus is a family business which was started in 2001. The business employed eight riggers and crew and eight artists. The witness told the Court that there were gaps in the paperwork maintained by the Respondent and they did not maintain records in relation to the hours worked by employees. She said that the circus travels around Ireland on a seasonal basis between February and October. The peak of the season is between July and August. Ms. Gerbola told the Court that all the artists and crew travelled together and lived together. She described them as a community.

The witness categorically denied that the Respondent retained custody of the Claimant’s passport while in their employment. She said that the Respondent covered the cost of air travel for the Claimant when he returned home at the end of each season. The Respondent also paid all taxes arising from the Claimant’s employment.

It was Ms. Gerbola’s evidence that the Claimant’s working week rarely exceeded 39 hours. She said that the Claimant commenced employment as a rigger and was involved only in erecting and dismantling the tent. She said that there were many days in which this work could not be performed due to weather conditions and on those occasions the Claimant would not work.

The work associated with publicity was originally undertaken by the witness but she later trained the Claimant to carry out his function. According to Ms. Gerbola, the Claimant’s typical day involved starting at 11am or 11.30 am. He would travel to rural towns which the circus intended visiting and distribute leaflets and put up signs in shops or in public places. He would normally return at around 6 pm or 7pm. The witness said that the Claimant was not involved in the build up to the performance or in the erection of dismantling of the tent. Ms. Gerbola said that took three hours to erect the tent and one-and-a-half hours to take it down. She said that the Claimant was always free to take a break. The witness accepted that the Claimant never received paid annual leave but she contended that he received time off in lieu of public holidays. The Claimant was never asked to perform circus acts.

Conclusion

Burden of proof

Counsel for the Claimant, Mr. Mulcahy S.C. submitted that as the Respondent admitted to not keeping records in accordance with Section 25(1) of the Act it carried the onus of proving compliance with the Act. In advancing that submission Counsel relied on the wording of Section 25(4) of the Act and on the decision of this Court inJakonis Antanas v Nolan Transport[2011] 22 E.L.R. 311.

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Failure to comply with this requirement, without reasonable cause, amounts to a criminal offence. However, no cause of action accrues to an employee by reason of his or her employer's failure to maintain the requisite records.

Section 25(4) provides as follows:-

• “(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 burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from Section 27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence *319 relevant to the complaint.

  This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin inBratty v Attorney General for Northern Ireland[1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to“suggest a reasonable possibility”

  The respondent should then be called upon to put the records required by Section 25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

  Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.

The reason for this reversal is obvious. The Act obligates an employer to maintain records which he or she must produce to an inspector appointed by the Minister if called upon to do so. These records may thus provide evidence of compliance or non-compliance with the Act. If there are no records, proving non-compliance, on the normal evidential rules, would be onerous and in many cases impossible. Hence, in the absence of a reversal of the probative burden an employer who fails to maintain records in accordance with Section 25(1) of the Act could be placed in a superior position in defending a claim under the Act than an employer who does maintain records which, on examination, may disclose evidence to support the claim. Consequently the Oireachtas has provided for a rebuttable presumption of non-compliance in situations in which records in the prescribed form are not maintained.

In this case the Respondent acknowledged that records were not maintained. Accordingly the Respondent must prove, on the balance of probabilities, that the within complaints are not well founded.

The evidence

There was a sharp conflict between the evidence tendered by the Respondent, on the one hand, and that of the Claimant and Mr. Hmidouch on the other. That conflict is not capable of being explained by a difference in recollection. On one point at least there is agreement between the parties. Ms. Gerbola accepts that throughout the period of his employment, extending over more than five years, the Claimant was never afforded annual leave with pay. That in itself constitutes a serious infraction of the Act.

Having assessed the evidence of Ms. Gerbola as a whole, the Court is not satisfied that it goes far enough to rebut the presumption of non-compliance with the various provisions put in issue by the Claimant.

The Court does, however, have some difficulty, as had the Rights Commissioner, in accepting that the Claimant consistently worked an average of 77 hours per week in the period cognisable for the purposes of the claim. It is likely that he worked up to 10 hours on days on which the circus moved but it is unlikely that he would have do so on days when it was in situ. The circus moved on average three times per week and so the Court accepts that on those days the Claimant worked 10 hours. Doing the best it can in assessing the likely hours worked on the remaining four days the Court has come to the conclusion that he probable worked no more than five hours on those days. Accordingly the Court has concluded that the Claimant probably worked up to 50 hours per week, which is in excess of the maximum working hours permitted by Section 15 of the Act.

Outcome

The Court is satisfied that the Respondent contravened Sections 12, 13,14, 15, 19 and 21 of the Act in relation to the Claimant. The Court awards the Claimant compensation in the amount of €4,500.

The Decision of the Rights Commissioner is varied in the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
27th December, 2012______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.