DWT1431

The Respondent operates a restaurant in the City of Dublin. The Claimant worked for the Respondent in his capacity as a chef.

The Claimant’s case
The Claimant contends that the Respondent contravened four provision of the Act in relation to his employment, namely: -

• • Section 12 –Intervals at Work
    The Complainant contends that he was required to work up to 12 hours per day without a break.
    
    
    

    Section 15 - Weekly Working Hours
    The Complainant contends that he was regularly required to work in excess of 48 hours per week, contrary to s.15 of the Act
    
    

    Section 21 –Entitlement in respect to Public Holidays
    The Complainant contends that he was not paid in respect of the two Public Holidays that occurred in March and April 2013
    
    

    Section 23 – Compensation on Cessor of Employment
    The Complainant contends that on the termination of his employment with the Respondent he had an accumulated entitlement to annual leave. He claims that the Respondent failed to pay him compensation for the loss of his holiday entitlements contrary to s.23 of the Act.

  
  
  

Evidence was given by the Claimant. In evidence he outlined the basis of his claims as outlined earlier in this Determination. Evidence was given on behalf of the Respondent by Mr Shirazi, who is an owner of the business, Mr Sorush, and Ms Crisan who were the Claimant’s managers at the time material to his claims. Each of these witnesses gave evidence in contradiction of the Claimant’s version of events.

Records
Section 25 of the Act provides: -

• “(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.”

• 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.

Application in the instant case
The Respondent accepts that it did not maintain records in accordance with s.25 of the Act at the time material to these claims. The Claimant’s testimony is sufficient to discharge the evidential burden that he bears. Consequently the burden of satisfying the Court that the Act was complied with in relation to the Claimant lies with the Respondent.

In seeking to discharge that burden the Respondent relied on the testimony of the witnesses who gave evidence on its behalf. It also relied on pay slips which it claims show the payments made to the Claimant, including payments in respect of holidays and the number of shifts that he worked. The Claimant disputes the accuracy of these documents and, in some cases, he denies having received them.

Conclusions of the Court
The pay slips submitted by the Respondent in advancing its case are not records within the meaning of s.25 of the Act. Moreover, they contain longhand notes or annotations which could not be explained. It is also unclear from the evidence if the Claimant actually received all of the pay slips relied upon. In these circumstances the Court has concluded that they are of limited probative value.

Having considered all of the evidence, and taking account of the demeanour of the witnesses in giving their evidence, the Court has reached the following conclusion as a matter of probability: -

Section 12
The Court is not satisfied that the Claimant received his full entitlement to breaks and intervals at work. Consequently the Court finds that the Respondent did contravene sections 12 of the Act in relation to the Claimant.

Section 15
The Court does not accept that the Claimant was required to work in excess of 48 hours per week. Consequently, the Court finds that the Respondent did not contravene section 15 in relation to the Claimant.

Section 21
The Court is not satisfied that the Claimant was provided with a benefit in respect of the two public holidays in issue. Consequently the Court finds that section 21 of the Act was contravened.

Section 23
The Court is not satisfied that the Respondent paid the Claimant in respect of one outstanding week of annual leave due to him on the cessor of his employment. Consequently the Court finds that the Respondent contravened s.23 of the Act in relation to the Claimant.

Redress
The Court measures the compensation that is fair and equitable in all the circumstances at €2,000 computed as follows: -

• 
  1. €1,300 for the effects of the contraventions of section 12 of the Act
  
  2. € 130 being the value of the benefit to which the Claimant was entitled in respect of two public holidays
  
  3. €325 being the value of the accrued annual leave to which the Claimant was entitled on the termination of his employment
  
  4. €245 by way of general compensation for the denial of the Claimant’s rights in respect to 2 and 3 above

Signed on behalf of the Labour Court



Kevin Duffy
13th March, 2014______________________
CO'RChairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.