MWD1210

In this Determination the parties are referred to as they were at first instance. Hence Mr Touigir is referred to as the Claimant and Circus Gerbola Limited is referred to as the Respondent.

This appeal was heard in conjunction with a appeal and a cross appeal by the same parties against the Decision of the Rights Commissioner under Organisation of Working Time Act 1997 and in an appeal and cross appeal by the Respondent herein and Mr El Mostafa Chtabbou under both the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000. This Determination should be read in conjunction with the Determinations issued in those cases bearing reference numbersMWD1211, DWT12181 and 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. He commenced employment in or about February 2007. He remained in the employment of the Respondent until 30^thMarch 2010. He was recruited to work in the operation and maintenance of the Respondent’s generator. There is, however, a significant difference between the parties concerning the range of duties actually performed by the Claimant. He entered Ireland on a valid work permit. It is accepted that the Claimant was not employed on a 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 22(1) of the Act.

The Claimant contends that the Respondent failed to pay him the national minimum wage in accordance with Section 14 of the Act. It appears that the Claimant was paid the national minimum rate of pay which corresponded to a 39 hour week. However the Claimant contends that he in fact worked a 77 hour week. The Claimant was provided with accommodation for which deductions of €21.85 per week were made. In this claim he is, in effect, claiming payment for the additional 38 hours per week in respect of which he claims not to have been paid.

The Claimant requested a statement of his earnings from the Respondent in accordance with Section 23 of the Act. A statement was not furnished within the time allowed for its production. The Claimant then presented this complaint to the Rights Commissioner service of the Labour Relations Commission on 30^thAugust 2010.

The Rights Commissioner found that the Claimant’s claims under the Act were not well founded. The Claimant appealed against that Decision.

The position of the parties

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 February 2007 having been recruited in Morocco. He was primarily employed in the operation and maintenance of the Respondent’s generator. According to the Claimant he was also required to undertake all forms of work associated with the running of the circus. He was responsible for painting signs and other equipment and for sowing and repairing the tent. In common with all other employees he was also involved in erecting and striking the tent in which the circus performed. According to the Claimant, he was involved in general maintenance duties such as washing the seats and cleaning the interior of the tent. He also undertook security duties.

The Claimant said that a typical working day commenced at around 9am and he normally worked until 10pm but sometimes beyond that time. He would normally attend to the generator in the mornings and he would then undertake security work and other odd jobs. He would check the generator during the day and fill it with diesel. When the circus finished he would again do security work and sometimes worked until 5am. 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 from 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.

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.

The Claimant left his employment with the Respondent on 30^thMarch 2010 following an accident at work.

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 Larbi Hmidouch

Mr Larbi Hmidouch gave evidence in corroboration of the Claimant’s testimony. This witness was employed by the Respondent between April 2004 and November 2006, before the Claimant came to be employed. According to the witness he worked an 11 hour day from 9am to 9pm, seven days per week. He said that all crew members were expected to assist in putting up and taking down the tent. 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.

Evidence of Fiachra Lennon

Mr Fiachra Lennon, of Collins Crowley, Accountants, gave evidence of calculation that he had prepared on the Claimant’s instructions showing the claimed shortfall in wages owing to the Claimant. The figures presented to the Court were based on the assumption that the Claimant worked for 77 hours per week throughout the currency of his employment between 2007 and 2010. By taking the difference between the amounts received by the Claimant, and the amounts that he would have received had he been paid in accordance with the national minimum wage applicable at the material time, Mr Lennon produced figures showing the amounts due to the Claimant in respect of the years between 2007 and 2010.

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 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 did not exceeded 39 hours. She said that the Claimant was almost exclusively engaged in maintaining the generator. She said that he would typically check the generator in the mornings. He was responsible for ensuring that there was sufficient diesel on the site to maintain the generator and the trucks. The Claimant undertook some driving duties. According to Ms. Gerbola after the Claimant attended to the generator he was generally free to do as he wished until it was again necessary to check it. She said that the Claimant was not required to assist in putting up or taking down the tent.

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 22(1) it carried the onus of proving compliance with the Act. In advancing that submission Counsel relied on the wording of Section 22(3) of the Act and on the Decision of this Court inJakonis Antanas v Nolan Transport[2011] 22 E.L.R. 311, a case concerning an analogues provision of the Organisation of Working Time Act 1997 .

Section 22(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 22(3) provides as follows:-

• “(3) Without prejudice to subsection (2), 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 provision was complied with lies 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 Himidouch on the other. That conflict is not capable of being explained by a difference in recollection. 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 Act.

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 during the currency of his employment. The Claimant’s primary responsibility was in relation to the maintenance and operation of the generator although the Court accepts that he performed other tasks. Doing the best it can in assessing the likely hours that he worked the Court has come to the conclusion that he probably worked no more than 39 hours per week

Outcome

The Court has concluded that the Claimant was underpaid in respect of the year 2007 by reference to the Act and that his complaint is, therefore, well-founded.

Section 26 of the Act provides: -

• 26.—(1) The rights commissioner shall, as soon as practicable after hearing a dispute, come to a decision on the dispute, advise the parties, in writing, of the decision and give to the Labour Court a copy of that decision.

  (2) A decision of the rights commissioner may—

  (a) include an award of—

  • • (i) arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

      (ii) reasonable expenses of the employee in connection with the dispute,

    (b) require an employer to remedy, within a specified time (not being later than 6 weeks after the date the decision was communicated to the employer) or in a specific manner, any matter, including the payment of any amount, in respect of which the employer is in breach of this Act
  as the rights commissioner considers appropriate.

  (3) A rights commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.

Figures relating to the amounts received by the Claimant and the number of weeks in which he worked during the currency of his employment were furnished by Mr Lennon. Figures were also furnished by the Respondent for the years 2007 to 2009, inclusive, which were extracted from P35 Revenue Returns. There were significant discrepancies between both sets of figures. In making its own calculations the Court has preferred the figures based on the P35 Tax Returns. Based on the conclusions reached herein the information extracted from those returns, Court calculates the arrears of wages due to the Claimant as set out below: -

Year 2007

Number of Weeks Worked: 38

National Minimum Wage: €8.30 per hour (from 1^stJanuary)

€8.65 per hour (from 1^stJuly)

Number of Hours worked 39

Total Hours worked (38 x39): 1482

Total due (741 x €8.30+ 741 x €8.65): €12,559.95

Less Lodgings (€21.85 x 38); €830.30

Less wages paid: (as per P35): €11,400

Arrears (€12,559.95 - €830.30
-€11,400.00):€ 329.65

In the interest of completeness the Court has made the following calculations for years 2008,2009 and 2010.

Year 2008

Number of Weeks Worked: 37

National Minimum Wage: €8.65 per hour

Number of Hours worked 39

Total Hours worked (37 x 39): 1443

Total due (1443 x €8.65): €12,481.95

Less Lodgings (€21.85 x 37); €808.45

Less wages paid: (as per P35): €12,580

Arrears (€12,481.95 - €808.45
-€12,580):(€ 906.50)


Year 2009

Number of Weeks Worked: 38

National Minimum Wage: €8.65 per hour

Number of Hours worked 39

Total Hours worked (38 x 39): 1482

Total due (1482 x €8.65): €12,819.30

Less Lodgings (€21.85 x 38); €830.30

Less wages paid: (as per P35): €12,958

Arrears (€12,819.30 - €830.30
-€12,958):(€ 969)


Year 2010

Number of Weeks Worked: 8

National Minimum Wage: €8.65 per hour

Number of Hours worked 39

Total Hours worked (8 x 39): 312

Total due (312 x €8.65): €2,698.80

Less Lodgings (€21.85 x 8); €174.80

*Less wages paid: €2728


Arrears (€2698.80 - €174.80
-€2,728):(€ 204)

*A P35 in respect of 2010 was not provided. The amount used her was taken as the average weekly rate paid in 2009 ( €12,958 / 38 = €341 x 8=2728)

As outlined above the total due is € 329.65 (for 2007).

There are no monies due in respect of the years 2008, 2009 and 2010.

Determination

The Claimant is awarded arrears of wages in the amount of €329.65. The Claimant’s appeal is to that extent allowed. The Respondent’s cross-appeal is disallowed. The Decision of the Rights Commissioner is varied in 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.