DWT12173

• •Failure to provide adequate daily rest (Section 11)

• •Failure to provide adequate breaks (Section 12)

• •Requiring him to work in excess of
  • 48 hours per week (Section 15)

• •Failure to provide adequate
  • notification of starting time (Section 17)

Preliminary issue

At the commencement of the hearing of the appeal the Solicitor for the Claimant raised an issue in relation to the allocation of the burden of proof in the case. The import of the submissions advanced on this point was that the Respondent had failed to maintain records in the prescribed form in accordance with Section 25(1) of the Act. It was submitted that in accordance with Section 25(4) of the Act the Respondent carried the full burden of proving compliance with the Act and its evidence should be taken first.


The Court ruled that the Claimant should go first and give evidence for the purpose of putting in issue the facts upon which his complaints are grounded. If the Respondent is unable to produce records in the prescribed form the onus of proving compliance with the Act would rest on the Respondent in accordance with Section 25(4) of the Act. Moreover, the Claimant is the appellant in this case and the normal procedure followed by this Court is that the appellant party goes first in presenting his or her case.

The solicitor for the Clamant, Mr Grogan, subsequently forwarded to the Court a written legal submission on this point. The import of the proposition contended for by Mr Grogan appears to be that, having regard to the language in which Section 25(4) of the Act is expressed, a claimant should be required to do no more than contend on the form used to initiate a complaint that a particular provision or provisions have been contravened. According to Mr Grogan, it should then be for the Respondent to produce records in the prescribed form and if the Respondent fails to do so there is no requirement on the Claimant to go into evidence. It would then be for the Respondent to prove compliance with the Act and the input of the Claimant would be confined to testing the evidence of the Respondent by way of cross-examination.

The Court has already dealt with the question of how Section 25(4) of the Act should operate. It did so in Determination DWT1160,ISS Ireland and Mitsovand in Determination DWT1117Nolan Transport and Antanas. In both cases the Court held that where records are not maintained the legal burden of proving compliance with the Act rests on the Respondent. What that means in practical terms is that the Respondent must satisfy the Court that it is more probable than not that the Act was complied with in respect to the matters complained of by the Claimant. If the Respondent does not do so or if the probabilities are equal the Claimant will succeed. That is a reversal of the normal rule of evidence which requires that he who asserts must prove. It comports fully with Section 25(4) of the Act in imposing on the Respondent the legal burden of proving compliance with the Act.

However, the Court also held that a Claimant carries an evidential burden to put in issue the facts upon which his or her claim is grounded. What that means is that a Claimant must come into Court and outline his or her claim with enough particularity so as to allow the Respondent to know what it is they are being accused of. They must also establish that the claim was presented in time by indicating that the contravention to which the complaint relates occurred in the six months preceding the initiation of the complaint. This is necessary so as to satisfy the Court that it has jurisdiction in the matter.

The forms used to initiate complaints under the Act are purely administrative and have no legal basis. The Court is entitled to regulate its own procedures. The Court had determined that a Claimant must state his or her complaints by way of evidence and that is the Court’s prerogative. That is a matter of procedure and has nothing to do with the allocation of the burden of proof.

Finally, it is noted that Mr Grogan takes issue with what he characterised as a requirement placed on the Claimant to particularise his claim by reference to specific dates on which the acts or omissions giving rise to the complaints occurred. No such requirement was placed on the Claimant in this case nor is any such requirement contemplated by the earlier decisions of the Court referred to above.

Records

Section 25(1) of the Act 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.

  (2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

  (3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

  (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.

• 
  3. The records required to be kept under section 25(1) shall contain the following particulars and documents —
  • (a) the name and address of each employee concerned, the number known as the Revenue and Social Insurance number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned) of his or her duties as an employee,

    (b) a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of theTerms of Employment (Information) Act, 1994(No. 5 of 1994), or any order or regulation made under that Act, that relates to him or her,

    (c) (i) the days and total hours worked in each week by each employee concerned,

    • (ii) any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,

      (iii) any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

    (d) a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),
  and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.

• 
  4. (1) Where no clocking in facilities are in place in a work place a form to record the days and hours worked in each week by each employee shall be kept by the employer in the form set out in the Schedule entitled Form OWT 1 or in a form substantially to like effect.

  (2) Notwithstanding the obligation to keep records imposed on the employer by paragraph (1), where the employer and employee agree, an employee may —

  • (a) complete the Form OWT 1, as set out in the Schedule or a form substantially to like effect, and

    (b) present the completed form to his or her employer for countersignature and retention by the employer in accordance with paragraph (1).

  (3) The Form OWT 1 should be made available at all reasonable times for inspection by an inspector.

The Claimant’s case

The Claimant told the Court in evidence that he had worked for the Respondent as a driver. He drove an open truck which was used for the delivery of gravel and sand and he also occasionally drove a cement tanker. He said that he sometimes worked 50 hours per week, sometimes 60 hours per week and sometimes 70 hours per week. He accepted that he received at least 11 hours rest between the time at which he finished work and the time that he commenced working on the following day.

In relation to breaks the Claimant told the Court that he received a 15 minute break after 4.5 hours driving while on the open truck but that he did not receive any break while driving the cement tanker. He said that he drove that vehicle around once per week. He said that his driving time did not correspond to his working time and it was often up to seven hours after he commenced working that he received a break.

According to the Claimant his starting and finishing times varied. He was often informed of his starting and finishing times for the next day by text message from his manager. Sometimes he was given this information personally, either at lunch time or in the evening.

The representative of the Respondent referred the Claimant to time sheets for the period 18^thFebruary 2011 to 20^thMay 2011 on which his hours of work were recorded. He agreed that he had signed these time sheets. He also agreed that he had confirmed on these time sheets that he had received his statutory rest entitlements. When asked when he had worked excessive hours as alleged he said that it was in December 2010 and January 2011. It was put to the Claimant that in that period there had been exceptionally heavy snowfalls that would have made driving impossible. The Claimant said that he was referring to the period in January after the weather improved.

The Respondent

Mr Ray Hegarty, who is transport manager with the Respondent, gave evidence. He had held that position for two years. This witness told the Court that he is responsible for 110 drivers in both the Respondent Company and an associated Company.

The witness recalled that in December 2010 and January 2011 there were exceptionally severe weather conditions as a result of which the Respondent had to close down for two weeks in December. Driving was again restricted in January because of the weather conditions. The witness said that the Claimant could not have worked the hours which he claimed during that period. Mr Hegarty said that the premises from which the Claimant worked opened between 8a.m. and 4.30p.m. during the winter. He said that occasionally the Claimant might have had to work extra hours either before normal starting time or after finishing time depending on the deliveries that he was to undertake. He said that he would tell the Claimant personally on the evening before if he would be required to start earlier or finish later. The witness said that the business was customer driven and variations in attendance hours might occur in order to meet the requirements of its customers.

The witness told the Court that new time sheets were introduced by the Respondent in February 2011 as the earlier system of recording working time was unsatisfactory. According to Mr Hegarty, he had explained the purpose and content of the new time sheets to each driver on their introduction. Drivers are expected to take breaks after at least 4.5 hours driving. The time sheets recorded the starting and finishing time of each driver on a daily basis and they were required to sign the sheet confirming their accuracy. Drivers were also obliged to confirm on the time sheet that they took the required breaks.

He said that the Respondent was extremely conscious of its obligations and those of its drivers under the statutory regulations relating to driving times. All trucks were fitted with tacographs and it was possible to monitor the driving time of each driver by reference to these records.

The witness said that the Complainant was engaged solely in driving and that he did not have to either load or unload his vehicle. It was Mr Hegarty’s evidence that the normal practice of drivers, including the Claimant, was that they reported to the Respondent’s base at their designated starting time; started their truck; waited for approximately five minutes for the truck to warm up and then proceeded on their first journey. He said that journeys rarely took more than two hours and drivers had many opportunities to take breaks while their trucks were being loaded and unloaded. Furthermore, all delivery times given to customers are approximate and there was nothing to prevent drivers from interrupting journeys so as to take breaks.

The witness told the Court that he understood that the Respondent’s obligation regarding breaks was that a driver must be afforded a rest break after 4.5 hours driving, rather than after 4.5 hours at work. It was Mr Hegarty’s evidence that in the case of the Claimant his only duties involved driving. He told the Court that for this reason there could be no material difference between the Claimant’s driving time and his working time.

Conclusion

The Court notes that the Respondent’s records are not in the form prescribed by the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001(S.I. No 473 of 2001). Accordingly in accordance with Section 25(4) of the Act the onus of proving compliance with the Act in respect of those provisions put in issue by the Claimant rests with the Respondent.

In reaching its conclusions in this case the Court has had to evaluate the oral evidence given, on the one hand, by the Claimant and that given by Mr Hegarty for the Respondent on the other. While making allowance for the fact that it was given through an interpreter, the Court found the Claimant’s evidence unsatisfactory in a number of respects. His testimony was uncertain and contradictory in many respects and was clearly exaggerated in others. The Claimant told the Court in evidence that he worked up to 70 hours per week during December 2010 and January 2011(a period in respect of which no records were available). When it was pointed out to him in cross-examination that the country was experiencing the worst snow falls in decades during this period he amended his evidence to say that he worked excessive hours during the last weeks in January 2011.

Furthermore, in the written submissions presented on behalf of the Claimant, which were prepared on his instruction, it was claimed that he did not receive a minimum of 11 hours rest between shifts. This was plainly inaccurate as became clear from his own evidence. The Claimant also testified that he undertook other work besides driving. The Court is satisfied that this evidence was also inaccurate.

Overall the Court found that the Claimant’s evidence was not reliable.

By contrast the Court found the evidence given on behalf of the Respondent by Mr Hegarty to be reliable and satisfactory. He gave his evidence candidly and to the best of his recollection including in matters that were against the Respondent. Where there is a difference between the evidence of the Claimant and that of Mr Hegarty, the Court prefers Mr Hegarty’s evidence.

The Claimant confirmed in his evidence in chief that he never received less than 11 hours rest between finishing time and his starting time on the following day. In these circumstances his claim that Section 11 of the Act was contravened is not sustainable.

The Court has examined the time sheets put in evidence by the Respondent for the period 18^thFebruary 2011 to 20^thMay 2011. These sheets show the starting and finishing times of the Claimant on the weeks to which they relate. These records cover a period of 11 weeks. A note at the foot of the time sheets indicates that the total hours recorded should exclude time spent on breaks. It is clear, however, that they in fact record the total hours between starting time and finishing time. This is also consistent with the evidence tendered by both the Respondent and the Claimant. The evidence indicates that the Claimant received 45 minutes in breaks per day. This has been taken into account by the Court in calculating his average working hours over the period to which these records relate.

On the basis of the content of these time sheets, and allowing for breaks of 45 minutes per day, the Claimant’s average weekly working hours was 46 for this period. There was no contravention of Section 15 of the Act during the period covered by these documents.

The Claimant told the Court that his complaint in relation to Section 15 of the Act relates to the period before these records were maintained. In particular the Claimant contended that he worked excessive hours of up to 70 per week in January 2011. The Claimant accepted that he was paid for all hours worked. The Court asked the Respondent to produce its pay records for the periods not covered by the time sheets put in evidence. Records were subsequently produced and on enquiry the Solicitor for the Claimant did not object to them being received in evidence.

These records disclose that in the four month period commencing on 3^rdDecember 2011 and ending on 25^thMarch 2011 (a total of 16 weeks, excluding the Christmas period during which the business was closed and it is assumed the Claimant was on annual leave) the Claimant worked a total of 605.74 hours. This indicates that the average working hours over the period were 37.85. It is noted that in the weeks commencing 14^thJanuary 2011, 21^stJanuary 2011 and 28^thJanuary 2011 the Claimant worked significantly in excess of 48 hours per week. However, Section 15 of the Act applies to average weekly working hours measured over a reference period of four months, or in circumstances which are not here relevant, a six month period.

These pay records do no support the claims made by the Claimant alleging a contravention of Section 15 of the Act. Accordingly that aspect of his claim is rejected.

The Claimant accepted that he received breaks of around 45 minutes per day. He claims that he only received breaks after 4.5 hours driving and this could have been after six or seven hours working. The Court is satisfied, as a matter of fact, that the only duties performed by the Claimant involved driving. The Court also accepts as a fact that the journeys normally undertaken by the Claimant lasted for no more than two hours. He had ample opportunity to take breaks substantially in excess of his statutory entitlements. If he failed to avail of the opportunity to take breaks (and the Court makes no such finding) it was through his own choosing. The Court is fully satisfied that he was at all times aware of his entitlement to take breaks and no action of the Respondent prevented him from so doing.

The Court is satisfied on the evidence of the Respondent that there was no contravention of Section 12 of the Act.

There were some relatively minor variations in the Claimant’s starting and finishing time. This was an inherent feature of his employment and was intended to meet the exigencies of the Respondent’s business. This was always understood and accepted by the Claimant. Mr Hegarty fairly admitted that he informed the Claimant of his starting and finishing times verbally either at lunchtime or in the evening of the previous day. Technically this contravened Section 17 of the Act.

Overall conclusion

On the evidence the Court is satisfied that the Respondent has proved, as a matter of probability, that it did not contravene Sections 11, 12 and 15 of the Act in relation to the Claimant. The Court also accepts that the Respondent did contravene Section 17 in failing to provide the Claimant with 24 hours notice in writing of his starting and finishing times. The Court is, however, satisfied that the Claimant did not suffer any loss or material inconvenience in consequence of this contravention.

Determiantion

For the reasons set out herein the Court finds that the complaints alleging contraventions of Sections 11, 12 and 15 of the Act are not well-founded. The complaint alleging a contravention of Section 17 is well founded.

Redress

Section 27 (3) of the Act deals with the powers of a Rights Commissioner, and by extensions those of the Court, in respect to redress. In relation to compensation, which is the redress sought by the Claimant, paragraph (c) of that subsection provides that the Rights Commissioner (or the Court) may: -

• require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.