DWT1340

The Rights Commissioner found that the Respondent had contravened sections 11(daily rest), 13 (weekly rest), 14 (Sunday premium) and 15 (weekly working hours).

The Court was told that the Claimant is no longer pursuing her claim in so far as it relates to a contravention of section 14 (Sunday premium)

Position of the parties

The Claimant

The Claimant gave evidence with the assistance of an interpreter. According to the Claimant working time was recorded by the workers themselves in a manual left in the staff canteen. The Claimant told the Court that she maintained her own records which were put in evidence. She said that working hours varied from day-to-day. She said that she often worked up to 50 hours per week. She also told the Court that she often worked without receiving breaks. The Claimant also referred to the records which she had maintained and which showed that she had worked for 26 consecutive days without a break and two occasions on which she was not afforded a break of 11 hours between finishing time and starting time on the following day.

The Respondent

The Respondent, Mr Joe Gorman gave evidence. He said that the typical working pattern for all harvesting staff was that staff commenced working at 7.00 AM. They worked a number of hours and that had a break of approximately two hours during which employees were free to do as they wished. Working time did not exceed nine hours per day and was often less. The witness told the Court that staff had weekly rest in the form of days off which were fixed on the roster. He asserted that for their own reasons employees often worked on their days off.

According to the Respondent he became suspicious that the Claimant was not accurately recording her working time in the manual provided. Having taken advice he decided to independently record the Claimant working time in a diary over a two week period. He then checked the records which he created against those recorded by the Claimant and discovered major discrepancies. The witness told the Court that he dismissed the Claimant on that account.

Mr Gorman went on to inform the Court that his records had been inspected by NERA and were found to be in order. He accepted that the inspection did not cover records for the period covered by the claim before the Court. The results of the NERA inspection were not provided to the Court.

The Court was told that the only records relating to the relevant period were those created by the employees themselves. In the case of the Claimant it was accepted that these records show non-compliance with the Act in respect to the subject matter of the Claimant’s claim. It was contended, however, that those records are inaccurate because they were falsified by the Claimant.

The Court was told that the Claimant had brought proceedings under the Unfair Dismissals Acts 1997-2001 and her claim was dismissed because she had falsified records. However, the Determination of the Employment Appeals Tribunal on this claim was not furnished to the Court.

Conclusion

Section 25 – The allocation of the Burden of Proof

Section 25(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 25(4) provides as follows: -

• (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.

• (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.

The only records maintained by the Respondent were those created by the employees themselves but they did not accord with the statutory Regulations, and in particular with paragraph (2)(b) thereof. These records were not furnished to the Court and on the Respondent own admission they do not show compliance with the Act in respect to the Claimant. The cognisable period for the purpose of these claims is the period between October 2009 and March 2010. The records created by the Respondent relate only to the period 2ndto 17thFebruary 2010. They are not in the prescribed form and the manner in which they were created deprives them of any probative value. Moreover they relate to only two weeks of the relevant cognisable period.

The Claimant gave sworn evidence in which she alleged significant breaches of the Act. The onus is on the Respondent to rebut her claims on cogent and reliable evidence. In the Court’s view the Respondent has wholly failed to discharge that probative burden

Determination

The Court notes that the Claimant is not pursuing her claim in so far as it relates to Sunday premium. The Court is satisfied on the Claimant’s un-rebutted evidence that the other claims are well founded as found by the Rights Commissioner.

In these circumstances the appeal is disallowed and the decision of the Rights Commissioner is affirmed subject only to thedeletionof her finding in relation to S.14 of the Act.

The Court sees no reason to interfere with the quantum of compensation awarded by the Rights Commissioner and her decision in that regard is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
27th March, 2013Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.