MWD1211

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, and that 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 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 9 or 10 months in each 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 €21.85per 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 presented a complaint to the Rights Commissioner service of the Labour Relations Commission on 24^thAugust 2009.

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 awarded his arrears of pay in the amount of €10,000.

The Respondent appealed against the whole of the Rights Commissioner’s Decision. The Claimant appealed against so much of the Decision as found that he had not worked 77 hours per week.

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 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 the 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.

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 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, 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 associated with 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 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 24^thMarch 2003 and 6^thApril 2009. 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 2003 and 2009.

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 its 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 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. The witness said that the Claimant had never been required to perform in the circus.

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 s.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 199 .

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. Hmidouch 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 does 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 throughout the currency of his employment. 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.

Outcome

The Court has concluded that the Claimant was underpaid 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 2005 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: -

This Claim was presented on 24^thAugust 2009. Section 11 of The Statute of Limitations 1957 applies a six year limitation period for actions to recover any sum recoverable by virtue of any enactment and operated to extinguish any cause of action based on arrears accruing before 25^thAugust 2003

Year 2003

Number of Weeks Worked in
Reckonable Period: 6

National Minimum Wage: €6.35 per hour

Number of Hours worked 50

Total Hours worked (6 x50): 300

Total due (300 x €6.35) €1905

Less Lodgings (€21.85 x 6); €131.11

Less wages paid:
(per Claimant’s evidence (€170 x 6): €1,020

Arrears (€1905 - €131.11-€1,020):€753.89

Year 2004

Number of Weeks Worked: 43

National Minimum Wage: €7.00 per hour

Number of Hours worked 50

Total Hours worked (43x50): 2150

Total due (2150 x €7.00) €15,050

Less Lodgings (€21.85 x 43); €939.55

Less wages paid: (€170 x 43): €7,310

Arrears (€15,050 - €939.55-€7,310):€6800.45

Year 2005

Number of Weeks Worked: 36

National Minimum Wage: €7.00 per hour (up to 1^stMay)

€7.65 per hour (from 1^stMay)

Number of Hours worked 50

Total Hours worked (36 x50): 1800

Total due ( 350 Hours x €7.00 +

1,450 x €7.65) €13,542.50

Less Lodgings (€21.85 x 36); €786.60

Less wages paid: (as per P35): €8,750

Arrears (€13,542.50 - €786.60
-€8,750):€4,005.90


Year 2006

Number of Weeks Worked: 36

National Minimum Wage: €7.65 per hour

Number of Hours worked 50

Total Hours worked (37 x50): 1850

Total due (1850 x €7.65): €14,152.50

Less Lodgings (€21.85 x 36); €786.60

Less wages paid: (as per P35): €9,180.00

Arrears (€14,152.50 - €786.60
-€9,180.00):€4,185.0

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 50

Total Hours worked (38 x50): 1900

Total due (950 x €8.30+ 950 x€8.65): €16,102.50

Less Lodgings (€21.85 x 38); €830.30

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

Arrears (€16,102.50 - €830.30
-€11,400.00):€3,872.20

Year 2008

Number of Weeks Worked: 37

National Minimum Wage: €8.65

Number of Hours worked 50

Total Hours worked (37 x50): 1850

Total due (1850 x €8.65): €16,002.50

Less Lodgings (€21.85 x 37); €808.45

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

Arrears (€16,002.50 - €808.45
-€12,580):€2,614.05

Year 2009

Number of Weeks Worked: 9

National Minimum Wage: €8.65

Number of Hours worked 50

Total Hours worked (9 x50): 450

Total due (450x €8.67): €3,892.50

Less Lodgings (€21.85 x 9); €186.65

Less wages paid: (as per P35): €3060.00

Arrears (€3,892.50- €186.65
-€3060.00):€645.85




Total ;

2003 € 753.89

2004: €6800.45

2005; €4,005.90

2006: €4,185.90

2007: €3,872.20

2008: €2,614.05

2009: € 645.85

€22,878.24

Determination

The Claimant is awarded arrears of wages in the amount of €22,878.24. 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 Jonathan McCabe, Court Secretary.