FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ROBERT CUNNINGHAM & CO - AND - MS DIANA KLAGISA (REPRESENTED BY C. GROGAN AND COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-102784-wt-10/JC.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 12th February, 2013. A Labour Court Hearing took place on 18th September, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Robert Cunningham & Co against the decision of a Rights Commissioner in a claim by Diana Klagisa under the Organisation of Working Time Act 1997 (the Act). The claim relates to payments in respect of annual leave in the leave year 2010.
In accordance with the normal practice of the Court the parties are referred to as they were at first instance. Hence Robert Cunningham & Co, which is the appellant herein, is referred to as the Respondent and Ms Klagisa is referred to as the Claimant.
The Rights Commissioner found for the Claimant and awarded her compensation in the amount of €1,000 to include €469 in respect of the monetary value of the holidays in issue.
The Evidence
The Court heard sworn evidence for the Claimant and from a representative of the Respondent. The Claimant told the Court she took annual leave from 5thJuly 2010 to 19thJuly. She testified that she was not paid for this period of leave.
Mr Keith Cunningham gave evidence on behalf of the Respondent he referred to documents that had been created is preparation for the hearing of the appeal which purported to show that the appropriate payments were made for this period.
Conclusions of the Court
The respondent failed to maintain records in relation to the claimant’s working time as is required by S.I. 473/2001: Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001. Section 25(4) of the Act provides, in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the claimant, rests on the employer.
The Respondent accepted that the payment of wages was irregular in that due to cash flow difficulties wages were not fully paid as they fell due. Consequently the amount paid in respect to some months represented the amount due in the previous month. This appears to have been the position in July 2010 and while the Claimant did receive payments in the month of July it was her evidence that these payments were in respect of arrears of wages due in June 2010. Moreover, the Claimant disputes the accuracy of the payment schedules produced by the Respondent.
The onus is on the Respondent to prove compliance with the Act. On the basis of the evidence tendered to the Court that onus has not been discharged.
Determination
The Court is satisfied that the decision of the Rights Commissioner is correct and supported by the evidence adduced in the course of this appeal. Accordingly the decision of the Rights Commissioner is affirmed as is her award of compensation to the Claimant in the amount of €1,000 to include an amount of €469 in respect of the monetary value of the holidays in issue.
The appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
19th September, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.