FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ABLE SECURITY LTD - AND - MR HARDIJS LANGSTEINS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal against Rights Commissioners Decision No: r-064912-wt-08/EH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioners Decision No: r-064912-wt-08/EH. The issue concerns the worker's claim that he did not receive the correct entitlements under the Organisation of Working Time Act, 1997. The issue was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 14th September 2012 stating that the complaint failed for want of prosecution.
On the 18th October 2012, the worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 10th January 2013. The following is the Court's Determination:
DETERMINATION:
The Complainant submitted a complaint on 9th May 2008 before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 14, 17 and 19 and 21. Four hearings were set up by the Rights Commissioner, however, as the Complainant did not attend, the Rights Commissioner held that the claims failed for lack of prosecution. In his decision the Rights Commissioner records that the former employer’s representative advised him that the Respondent’s business had ceased trading in June 2010.
The Complainant appealed the decision of the Rights Commissioner.
At the outset of the hearing of the appeal the representative on behalf of the Complainant informed the Court that she was withdrawing claims alleging breaches of Section 17, 19 and 21. Consequently, she was now only pursuing those claims alleging breaches of Sections 11, 12 and 14.
The Complainant’s representative informed the Court that the Complainant was employed by the Respondent from January 2007 until 16th December 2007 and was paid €8.00 per hour. She submitted that the Complainant had not received an eleven hour daily break contrary to Section 11, he did not receive his rest breaks in accordance with Section 12 and he was required to work every second Sunday without being paid a Sunday premium contrary to Section 14 of the Act.
Findings of the Court
In support of the case before the Court the Complainant’s representative submitted two payslips for examination. They were in respect of a two week period from 25th November until 6th December 2007. Having examined the payslips the Court notes that the Complainant was paid €9.03 per hour and not €8.00 as alleged and was paid a Sunday premium in respect of the Sunday worked in that two week period, contrary to the Complainant’s contention. The Complainant’s representative did not dispute the veracity of the payslips.
The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of. If the Respondent is unable to produce records in the prescribed form then the onus of proving compliance with the Act would rest on the Respondent in accordance with Section 25(4) of the Act.
In light of the only evidence submitted and having considered the submission made the Court is of the view that the claims before the Court lacked credibility and on that basis finds that the complaints are not well founded.
Determination
In these circumstances the Court finds that the complaints are not well-founded. Therefore the appeal is not allowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st January 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.