FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DELEP AND AMITA MALKAN T/A INDUS FOODS CASH & CARRY (REPRESENTED BY DEVANEY & DURKIN) - AND - MR MUHAMMAD IQBAL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appealing against Rights Commissioner's Decision r-107978-wt-11/RG.
BACKGROUND:
2. A Rights Commissioner hearing took place on 1st November 2011 and the following Decision was issued on the 27th June 2012:
- "I order the Employer to pay the Claimant compensation of €3,000 within six weeks of this Decision."
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 3rd August 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 20th November 2012.
DETERMINATION:
- This is an appeal by Delep and Amita Malkan t/a Indus Foods Cash and Carry (the Respondent) against the decision of a Rights Commissioner in a claim by Mulhammad Iqbal (the Claimant) under the Organisation of Working Time Act 1997. The Claimant was employed by the Respondent from 1stJanuary 2009 until his employment terminated on 20thFebruary 2011.
The Rights Commissioner found that the Respondent contravened sections 14 (Sunday Premium) section 19 (Annual Leave) and section 21 (Public Holidays) of the Act in relation to the Claimant. There was no cross appeal.
The Respondent did not produce records showing compliance with the Act in the prescribed form as is required by s.25 of the Act. According the Respondent carries the burden of proving compliance with the Act. The Respondent did produce a document prepared by the firm’s accountant which was proffered as evidence of compliance with the Act in respect to the matter in issue. Having reviewed this information the Court has found it wholly unreliable as it contains a number of serious inconsistencies which the Respondent’s represented claims to have been drafting errors.
In the absence of any reliable evidence of compliance with the Act, and as the Respondent bears the onus of proof, the Court is satisfied that the conclusions reached by the Rights Commissioner must be upheld. The Rights Commissioner awarded the Claimant compensation in the amount of €3,000. The Court is satisfied that this award is appropriate in all the circumstances of the case.
Determination
The decision of the Rights Commissioner is affirmed and the Respondent’s appeal is disallowed. It is the determination of the Court that the Respondent pay to the Claimant compensation in the amount of €3,000 for the contraventions of the Act found to have occurred.
Signed on behalf of the Labour Court
Kevin Duffy
14th January, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.