DWT1428

FULL RECOMMENDATION

WTC/12/199

DETERMINATIONNO.DWT1428

(r-107695/ 117367-wt-11/MMCG)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

O'LEARY INTERNATIONAL LTD
(REPRESENTED BY PENINSULA BUSINESS SERVICES)

- AND -

VLADIMIRAS ANDREJEVAS
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision r-107695/113767-wt-11/MMcG.

BACKGROUND:

2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 14th September, 2012. The following is the Labour Court's Determination:

DETERMINATION:

This is an appeal by Valdrejevas Andrejevas against the decision of a Rights Commissioner in his claim against O’Leary International Ltd (the Respondent). The claim was taken under the Organisation of Working Time Act 1997 (the Act). The claims relate to: -

•Breaches of sections 11 and 12 of the Act
•Breaches of section 13(5) of the Act
•Breaches of section 15 of the Act
•Breaches of section 17 of the Act
•Breaches of sections 20 and 21 of the Act

He Claimant also claimed to have been penalised contrary to s.26 of the Act.

Records and Burden of Proof
Section 25 of the Act 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.

Regulation were made pursuant to sections 7 and 25 of the Act entitled Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 S.I 472/2001. These Regulations provide: -

4. (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 Respondent produced tachograph records which it contends fulfilled its obligations under s.25 of the Act. While tachograph records, if properly maintained, may have probative value in demonstrating driving times and times engaged in other work, they are not in accordance with the specific requirements of Regulation 4 of S.I 472/2001. In that regard it appears to the Court that the purpose of Regulation 4 is to avoid disputes concerning relevant questions of fact of the type that arose in this case. It is clear that as clocking in facilities were not used (as they could not have been) the Respondent’s obligation under the Regulations was to complete a weekly time sheet (or to have the Claimant complete such a sheet) in which working hours and breaks are recorded. The time sheet must then be signed and counter signed by the employer and the worker.

That did not happen in this case. Consequently, in accordance with s.25(4) of the Act the Respondent bears the burden of proving compliance with the Act. The tachograph records do not go far enough in discharging that burden. They do not record all of the time spent by the Claimant in performing other work and in some instances they were manually altered by the Respondent.

Penalisation
The claim of penalisation was not pursued and no evidence on this aspect of the claim was adduced.

Conclusions of the Court
The Rights Commissioner found that the claims were well founded and he awarded the Claimant compensation in the amount of €4,000. However, the Rights Commissioner did not provide any indication of whether his decision related to some or all of the claims nor did he provide any reason for his decision.

Having considered all of the evidence the Court has reached the conclusion that it is unlikely that the Claimant worked more than an average of 48 hours per week.

Consequently the Court is not satisfied that s.15 of the Act was contravened. Moreover, the Court is satisfied that any underpayment in respect to holidays was taken into account in the award made to the Claimant in his claim under the National Minimum Wage Act 2000.

The Court finds, on the balance of probabilities, that the other aspects of the claims are well founded.

Redress
The Court considers that the award of compensation made by the Rights Commissioner in the amount of €4,000 is fair and equitable in all the circumstances and that award is affirmed.

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

Signed on behalf of the Labour Court

Kevin Duffy
3rd March, 2014______________________
JMcCChairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.