FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MATHEW SCALLY T/A APPLEGREEN SERVICE STATION (REPRESENTED BY SHERWIN O'RIORDAN SOLICITORS) - AND - AOIFE LYNCH & MICHELLE KELLY (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decisions r-124792-wt-12/JW & r-124784-wt-12/JW.
BACKGROUND:
2. The Workers and the Employer appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court Hearing took place on 2nd July, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Matthew Scally and a cross-appeal by Aoife Lynch and Michelle Kelly against the decision of a Rights Commissioner in claims brought by Ms Lynch and Ms Kelly against Mr Scally under the Organisation of Working Time Act 1997 (the Act). In this Determination Mr Scally is referred to as the Respondent and Ms Lynch and Ms Kelly are referred to as the Claimants.
The Rights Commissioner issued separate decisions in respect of each Claimant. Since the material facts and the applicable law is materially the same in both cases they were conjoined for the purpose of this appeal and were heard together.
The Claimants are appealing against so much of the Rights Commissioner’s decision as found against them in respect of certain claimed contraventions of the Act. They are also appealing against the quantum of the awards made by the Rights Commissioner. The Respondent is appealing against so much of the Rights Commissioner’s decisions as found for the Claimants.
The within claims were presented to a Rights Commissioner in or about 24thJuly 2012. Consequently, in light of the six-month time limit prescribed by s.27 of the Act, the cognisable period for the purpose of obtaining redress is that commencing on 25thJanuary 2012 up to the date on which the complaints were presented.
Background
The Respondent carries on the business of running a number of food and retail outlets associated with a service station located on a motorway. He does so under licence from a business trading as ‘Applegreen Service Station’. The Claimants were employed at all material times as sales assistants in a fast food outlet located at the Service Station. Ms Kelly is no longer employed by the Respondent and the circumstances in which her employment ended is in dispute. Ms Lynch remains in the employment of the Respondent.
Both Claimants contend that the Respondent contravened sections 11 and 12 (breaks and daily rest), section 14 (payment of Sunday premium) section 17 (provision of notice in respect of overtime) section 19 (provision of two consecutive weeks annual leave) and section 21 (provision of a benefit in respect of a public holiday). The second named Claimant (Ms Kelly) brought a claim under s.18 of the Act (minimum entitlements in respect of zero hour’s contracts).
In the case of the first named Claimant (Ms Lynch) the Rights Commissioner found that the claim under sections 11, 12 and 14 were well-founded. He found that her claims under sections 17 and 19 were not well founded. He made no express finding in respect of the claim under section 21 but merely observed that the Respondent had undertook to check the factual position in relation to the payment in issue and rectify the position if necessary.
In relation to the second named Claimant (Ms Kelly) the Rights Commissioner found that the claims under sections 11, 12 and 14 were well founded. He found that the claims under sections 17 and 19 were not well founded. In respect of the claim under section 21, the Rights Commissioner again made no express finding but made the same observation as in the case of the first named Claimant. The Rights Commissioner appeared to overlook the second named Claimant’s claim under section 18 and made no finding in respect of that claim
Maintenance of Records / Burden of Proof
An issue arose in the case as to whether the Respondent maintained records in the prescribed form as required by section 25 of the Act. This section 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.
Regulations were made pursuant to the Act specifying the form in which records for the purpose of this section are to be maintained entitled Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001. Regulation 3 of these regulations provide in relevant part as follows: -
- 3. Form of records under section 25(1)
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 [Personal Public Service] 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
- (i) the days and total hours worked in each week by each employee concerned,
- (a) the name and address of each employee concerned, the number known as the [Personal Public Service] 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,
Regulation 4 of the Regulations provides: -
- (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 counter-signature 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. - (a) complete the Form OWT 1, as set out in the Schedule or a form substantially to like effect, and
The format of Form OWT 1 is set out in the schedule to the Regulations and requires that the hours worked in each day of the week be recorded excluding breaks. It also provides that the form be signed by the employee and the employer.
Having reviewed the records furnished by the Respondent the Court is satisfied that they do not comply with the Regulations. In particular, it is noted that the records maintained by the Respondent were not signed by either the Claimants or the Respondent. Accordingly, based on the provision at s.25(4) of the Act, the onus of proving compliance with the Act rests with the Respondent.
InAntanas v Nolan Transport[2012] E.L.R. 311, this Court held as follows in relation to the effect of the burden of proof shifting to the Respondent: -
- The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut.
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 s.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 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 s.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 evidence
Oral evidence was given by each of the Claimants and by the Respondent Mr Scally.
Evidence of Ms Lynch
The first named Claimant, Ms Lynch, gave evidence. She said that that on a normal nine hour shift there was a 30 minute break. She told the Court than there were occasions when she did not receive a break after working for 4.5 hours. She gave examples of occasions on which this occurred. She also told the Court than there were occasions on which she did not receive an 11 hour break between the finish of one shift and the commencement of the next shift. She again gave examples of when that occurred. The dates given by the Claimant in respect of the section 12 complaints were after the date on which her complaint was presented. These contraventions could not, therefore, have been comprehended by the claim presented to the Rights Commissioner.
This claimant told the Court that she was regularly required to worked on Sundays but received no additional payment on that account. It was her evidence that she was never informed that any element of her hourly rate was in respect of Sunday working.
According to Ms Lynch she was asked to work overtime on many occasions on short notice. She said that this arose in a variety of circumstances. While it sometimes arose because of the arrival of a large number of customers due to a football match or a concert there were other occasions on which it occurred for other reasons. Ms Lynch told the Court that when this occurred she was asked to remain on by a named manager. She said that she was given no choice in the matter.
On annual leave, this Claimant told the Court that she had asked for two consecutive weeks leave on a number of occasions but was told by a named manager that she could only have one week’s leave. Finally, Ms Lynch told the Court that she was not paid for the August public holiday in 2012. However, this holiday occurred after the within claims were presented to the Rights Commissioner and could not have been contemplated by that claim.
The first named Claimant, Ms Kelly, gave evidence to like effect to that of Ms Lynch. In her case she gave examples of occasions on which she did not receive breaks or daily rest which were within the cognisable period of her claims. She did not make any claim in respect of public holidays.
Turning to the circumstances in which her employment terminated, Ms Kelly told the Court that she had a disagreement with a named supervisor on or about the commencement of July 2012. Thereafter she was not provided with any work.
Evidence of the Respondent
The Respondent, Mr Skelly gave evidence. He told the Court that he operated the outlet at which the Claimants were employed under licence. He did not have any direct involvement in the day-to-day running of the business. Mr Skelly said that employees were required to fill in sheets (which were put in evidence) recording their hours of work and breaks. He said that these sheets were not always completed as required. He said that the only occasions on which staff were required to work beyond their rostered hours was where there was an unforeseen demand on the services of the business such as the arrival of a coach or some major event in the locality. Mr Scally accepted that he did not request the Claimants to work overtime and he had no direct knowledge of the circumstances in which they were so requested.
With regard to the evidence of the Claimants concerning their holidays, the Respondent told the Court that the business did not have a policy directed at requiring employees to take only one week’s leave at a time. He said that holidays were allocated in response to the requests of employees. He was personally aware of many employees who were allocated two consecutive weeks' leave.
According to Mr Scally, the Claimants were paid €9.31 per hour which was in excess of the minimum wage. This rate was fixed by Applegreen and he assumed that the amount in excess of the minimum wage was in respect of Sunday working. However, Mr Scally had no direct knowledge as to how this rate was computed.
Conclusion
As the Court has held earlier in this Determination, the onus of proving compliance with the Act rests on the Respondent by operation of section 25(4) of the Act. The decision of the Court inAntanas v Nolan Transport[2012] E.L.R indicates that the Claimants carry an evidential burden to put in issue the facts which they allege constitute contraventions of the Act. Where, as here, the probative burden is on the Respondent he or she must rebut the claims of the Claimants on convincing evidence. The Court is satisfied that the Claimants gave honest evidence to the best of their recollection. The Court accepts the veracity of that evidence. On the other hand, the evidence of the Respondent was largely hearsay and had little probative value. Mr Scally had no direct involvement in the day-to-day running of the outlet in which the Claimants worked. He was not in a position to give evidence of any value in relation to the factual position concerning the subject matter of the within claims. Where there was a difference in the evidence of the Claimants compared to that of Mr Scally the Court prefers the evidence of the Claimants.
On the question of breaks and intervals at work, the Respondent told the Court that the Claimants were made fully aware of their entitlements to breaks. They were also responsible for filling in time sheets recording when the breaks were taken. It was accepted that these sheets were not always completed. The Statutory Regulations do allow for the completion of records by the employee. However, the Regulations provide that on completion they must be signed by the employee and presented to the employer for counter signature. There is an obvious reason for this requirement. Firstly, the responsibility for ensuring that the records are maintained rests with the employer and the employer must discharge that responsibility by ensuring that the records are actually and accurately maintained. Secondly by requiring that the records be signed by both the employee and his or her employer the type of factual dispute that arose in this case can be avoided.
Where an employer fails to maintain records no right of redress accrues to the employee on that account. However, it does result in the employer being required to prove compliance with the Act in respect of any claimed contraventions put in issue by an employee.
In the case of both Claimants the Court accepts that there were occasions during the cognisable period of these claims on which they did not receive the breaks to which they were entitled under the Act. In the case of the second named Claimant, Ms Kelly, the Court further accepts that there were occasions on which she did not receive an 11 hour rest period between the finish of one shift and the commencement of the next shift, contrary to section 12 of the Act. In the case of the first named Claimant, Ms Lynch, the period in respect of which her complaint under section 12 relates was after the case was presented to the Rights Commissioner and cannot be taken into account.
In relation to the claims under section 17 of the Act, the Claimants averred that they were requested to work overtime in a variety of circumstances and received little or no notice. These circumstances included, but were not confined to, the arrival of a large number of customers following a football match or a concert. They also told the Court in evidence that they were given no real choice in the matter. The Court does not accept that the occurrence of exceptional demand on the business due to a football match or a concert is an unforeseeable event as contemplated by section 17 of the Act. In any event the evidence of the Claimants, which the Court accepts, was to the effect that they were required to work overtime in other circumstances which did not relate to exceptional demand on the services of the business. The Court further accepts the Claimants’ evidence that they were required to work the overtime in issue as opposed to having agreed to do so voluntarily.
In relation to the claims of both Claimants under section 21 of the Act, this related to the August Public Holiday 2012. That claim again relates to a period after these claims were presented and cannot be taken into account.
In relation to the allocation of annual leave, it was the Respondent’s case that the Claimants agreed to the taking of single weeks. He relied on the provision of section 19(3) of the Act which provides as follows: -
- (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
It was submitted on his behalf that in requesting single weeks of leave the allocation in accordance with those requests constituted an agreement within the meaning of section 19(3) of the Act. The Court does not accept that submission. The evidence of the Claimants, which the Court accepts, was to the effect that they had requested two consecutive weeks leave in the leave year ending 31stMarch 2012 but were told by a named manager that they could only have one week. The named manager was not tendered as a witness in the case and the evidence of Mr Scally on this point was hearsay and of no probative value. The Court accepts that while the Claimant may have requested their annual leave in blocks of a single week, they did so in circumstances in which they had been told by a named manager that two consecutive weeks leave would not be provided.
On the question of Sunday premium, Mr Scally was unable to say how the rate paid to the Claimants was computed. The hourly rate paid to the Claimant (€9.31 per hour) was directly in line with that prescribed by the Employment Regulation Order formally applicable to waiting staff in the catering sector, which was in force at the time that the Claimants commenced their employment with the Respondent. That rate was exclusive of Sunday premium. The Court is satisfied, as a matter of probability that the rate was fixed by direct reference to the ERO rate. That rate did not include compensation for working on Sundays as the former ERO made separate provision in respect of Sunday work. The Court is satisfied that the rate paid to the Claimant did not contain any element of compensation in line with section 14 of the Act. Section 14 of the Act provides: -
- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings underPart IVbefore a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:- Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.
(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings). - (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
In this case there is no collective agreement applicable to workers in a comparable position to that of the Claimants. The Rights Commissioner found that the premium that was reasonable in all the circumstances amounted to time-and-one-half. No reason has been suggested to the Court as to why the Rights Commissioner’s conclusion in that regard should be interfered with.
In the case of Ms Kelly the Respondent told the Court that she had failed to report for work after July 2012. He gave evidence of the efforts made to arrange a meeting with Ms Kelly to address her difficulties and arrange for her to return to work.
Outcome
On the evidence the Court has reached the following conclusions: -
First Named Claimant, Ms Lynch
Sections 11
The Court is satisfied that the complaints under these are well founded. The Court affirms the decision of the Rights Commissioner in this regard. While some of the occurrences relied upon by this Claimant were after the referral to the Rights Commissioner, and therefore outside the cognisable period of this claim, there was at least one occasion within the cognisable period on which s.11 was contravened. In all the circumstances the Court nonetheless affirms the Rights Commissioner’s award of €600 in respect of this contravention.
Section 12
The complaint in relation to section 12 of the Act is in respect of a period after the complaint was referred to the Rights Commissioner. It could not, therefore, have been comprehended by that complaint. The decision of the Rights Commissioner in relation to this aspect of the claim is set aside.
Section 14
The Court is satisfied that the Claimant did not receive a premium in respect of Sunday working. Her complaint in that regard is well-founded. The Rights Commissioner awarded this Claimant compensation in the amount of €372.40, being the value of the premium payment that he found to be reasonable, in respect of 10 Sundays on which she worked. The Claimant’s representative told the Court that she is not taking issue with this award. Accordingly, it is affirmed. The Rights Commissioner did not expressly direct the Respondent to pay the Claimant time-and-one-half for all future Sunday working although such a direction would appear to be implicit in the Rights Commissioner’s decision.
For the sake of completeness, the Court awards the Claimant compensation in the amount of €372.40 in respect of past contraventions of this section and further directs that the Respondent pay the Claimant a Sunday premium equal to time-and-one-half in respect of all Sundays on which she is required to work, including Sundays on which she worked since the date of the Rights Commissioner’s hearing.
Section 17
The Court is satisfied that the complaint in respect of this section is well-founded. The decision of the Rights Commissioner on this claim is reversed. The Court awards the Claimant compensation in the amount of €1,500 in respect of this contravention.
Section 19
The Court is satisfied that this complaint is well-founded. The decision of the Rights Commissioner is reversed. The Court awards the Claimant compensation in the amount of €500 in respect of this contravention.
Section 21
The Court is satisfied that the Public holiday to which this claim relates occurred outside the cognisable period of the claim and it is dismissed.
The total award to this Claimant is €2,972.40
Second Named Claimant, Ms Kelly
Sections 11
The Court is satisfied that the complaints in relation to section 11 are well-founded. The evidence disclosed that this section of the Act was contravened in the case of this Claimant on a greater number of occasions than in the case of the first named Claimant. The Court considers the award made by the Rights Commissioner to be inadequate and it is varied to one of €750
Section 12
The Court is satisfied that the complaints in relation to section 12 are well-founded. The Court considers the award made by the Rights Commissioner in respect to this contravention to be inadequate and it is varied to one of €750
Section 14
The Court is satisfied that the Claimant did not receive a premium in respect of Sunday working. Her complaint in that regard is well-founded. The Rights Commissioner awarded this Claimant compensation in the amount of €297.92, being the value of the premium payment that he found to be reasonable, in respect of 8 Sundays on which she worked. The Claimant’s representative told the Court that she is not taking issue with this award. The Court affirms the decision of the Rights Commissioner and the award of compensation in the amount of €297.92
Section 17
The Court is satisfied that the complaint in respect of this section is well-founded. The decision of the Rights Commissioner on this claim is reversed. The Court awards the Claimant compensation in the amount of €1,500 in respect of this contravention.
Section 18
The Court does not accept that this complain is well-founded. Even if the Claimant’s version of what occurred in July 2012 is correct (and the Court makes no such finding) it would have amounted to a repudiation of her contract of employment, in which event her remedy lies elsewhere.
Section 19
The Court is satisfied that this complaint is well-founded. The decision of the Rights Commissioner is affirmed on this claim and the award of €500 is also affirmed.
Section 21
The Court is satisfied that the Public holiday to which this claim relates occurred outside the cognisable period of the claim and it is dismissed.
The total award to this Claimant is €3,797.92.
Determination
The Claimants’ appeal is in part allowed. The Respondent’s cross-appeal is disallowed. The decisions of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
28th July, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.