MWD144

The Claimant was employed by the Respondent as a truck driver. His work involved the collection of waste for disposal. His normal weekly wage was €441.99, although that amount varied on occasions. In addition to that amount the Claimant received payments by way of subsistence allowances. The latter amounts are not relevant for present purposes.

The complaint was investigated at first instance by a Rights Commissioner who found that the Act was not infringed in relation to the Claimant. The Respondent did not appear before the Rights Commissioner. It appears that the Rights Commissioner reached his conclusion on the basis of a letter received from the Respondent although that content of the letter was not proved in evidence.

On the evidence adduced in the course of the appeal it is clear that records showing compliance with the Act were not maintained by the Respondent. The Court was presented with tables showing what was claimed to be the times at which the first and last bins were lifted on each of the days to which the table relates. These tables do not provide any record of the time the Claimant actually started work and the time that he actually finished working. In particular they do not take account of preparatory work undertaken by the Claimant before he left his depot and the time spent traveling to the location in which he collected the first bin. Moreover, these tables were not compiled by the Respondent and their author was not available to give evidence. Consequently they are at best in the nature of hearsay and are inadmissible as evidence of what they contain.

The Claimant was not provided with a contract of employment in writing. Nor was he provided with a written statement of the terms of his employment. The Respondent accepted that the Claimant had no fixed or contractual working hours. According to the Claimant his weekly wage was intended to cover up to 51 hours per week. He contended, however, that he worked up to 60 hours per week for a period of 20 weeks. This, he contended, included nine hours per week of additional work for which he was not paid. When these hours are taken into account his weekly wage was less than the national minimum wage.

Section 22(3) of the Act provides, in effect, that where records are not maintained by an employer it is for that person to prove compliance with the Act.

The Respondent contended that the Claimant did not work the hours claimed. That assertion was based on the tables referred to above, which, as previously noted, have little or no probative value.

However, having considered the evidence of the Claimant, the Court has come to the conclusion that his claim to have worked nine additional hours per week in the 20 week period in question is probably overstated. Based on that conclusion the Court considers it more likely that the Claimant worked an additional 40 minutes per day, or 3 hours 20 minutes per week. Hence the Claimant’s working hours over the 20 week period in issue were 54 hours and 20 minutes per week.

Consequently he is due arrears of pay calculated by reference to the national minimum wage as follows: -

54 hours 20 minutes x €8.65 = €469.95 per week

Less €441.99 received = € 27.96 per week

X 20 = €559.29

The Court awards the Claimant arrears in the amount of€559.29.

Determination
The decision of the Rights Commissioner is varied in terms of this determination.

Signed on behalf of the Labour Court



Kevin Duffy
14th February 2014______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.