DWT1488

The appeal came on for hearing before the Court on 9 April 2014.

Background

The Respondent operates a retail bakery shop in Cork. He employed the Complainant to operate and manage the bakery. The Complainant commenced working for the Respondent on 6 October 2012. Following a short illness the Complainant’s employment was terminated on 23 February 2013.

Section 15 Complaint

Section 15 of the Act states

15.—(1)An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in thissectionreferred to as a “reference period”) that does not exceed—

• (a)4 months, or
  • (b)6 months—

• • • • (i)in the case of an employee employed in an activity referred to inparagraph 2, point 2.1. of Article 17 of the Council Directive, or

• • • • (ii)where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with thissubsection,

• • • or

• • • (c)such length of time as, in the case of an employee employed in an activity mentioned insubsection (5), is specified in a collective agreement referred to in thatsubsection.

Complainant’s Position

The Complainant states that he was initially employed to work 20 to 25 hours per week. However this was gradually increased and by the time his employment ended he was working in excess of 56 hours each week. He states that he was required to attend for work before the retail premises opened to prepare and bake bread products for sale in the shop. He was required to be present in the shop while it remained open to the public. Thereafter he was required to remain in the shop to clean it and prepare for the following days work.

He states that a number of other people were employed in the shop over that period but that they were neither consistent nor reliable. He also states that they were mainly involved in retail sales and did not reduce the requirement for him to be present or to oversee the running of the business.

He states that he raised the matter with the Respondent but no action to address the situation was taken.

Respondent’s Position

The Respondent states that the Complainant was required to open the shop and to prepare bread for sale. Another employee was rostered to cover the shop during the day and the Complainant was free to leave. He was then required to return in the evening to close the premises.

He argues that the Complainant was not required to remain in the shop all day and was free to leave and was encouraged to do so. He states that the Complainant chose not to leave the shop. He further states that the Complainant refused to clock in and out on the cash register and consequently he refused to cooperate with efforts to control his working hours. He states that the Complainant was employed to work 20 – 25 hours per week and was not required to remain outside those hours.

Findings of the Court

Section 25 of the Act states

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 thisActare 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 ofsubsection (1)any specified class or classes of employer and regulations under thissubsectionmay 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 withsubsection (1)shall be guilty of an offence.

(4)Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of thisActin 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.

In this case the Respondent did not keep records of the Complainant’s hours of work. He states that the Complainant refused to co-operate with the clocking system that would have enabled him to do so and accordingly argues that the Complainant cannot benefit from his own refusal to comply with his instructions.

The Complainant states that no such clocking system was brought to his attention. He further states that he co-operated with all instructions issued to him by the Respondent.

The Court finds that the Act places the onus of keeping records on the Respondent. He has not maintained records in this case. He asserts that his efforts to do so were frustrated by the Complainant. However he presented no evidence of any engagement with the Complainant through which a requirement to use a clocking system was brought to his attention. Neither did he produce any evidence of engaging with the Complainant regarding his alleged refusal to use the clocking system. The Complainant denies that any such system was brought to his attention.

The Court takes the view that the burden of proving that a clocking system was in place and that the Complainant refused to use it lies with the Respondent. In that regard the Court finds that the Respondent did not present any evidence in support of that assertion. Neither did the Respondent present any evidence of correspondence or meetings with the Complainant noting his refusal to utilise a clocking system. Accordingly the Court finds that the burden of proving compliance with the Act remains with the Employer.

Other than a simple assertion, the Respondent presented no evidence to the Court in support of his contention that the Complainant worked less than an average of 48 hours per week. Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with the Act. Having so found the Court determines that the complaint is well founded and determines accordingly.

Remedy

Section 27 of the Act, in relevant part, states

(3)A decision of a rights commissioner undersubsection (2)shall do one or more of the following:

• • • (a)declare that the complaint was or, as the case may be, was not well founded,

• • • (b)require the employer to comply with the relevant provision,

• • • (c)require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment,

• and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Rights Commissioner decided that the Complaint was well founded within the meaning of section 27(3)(a) of the Act. He required the Respondent to pay the Complainant compensation in the sum of €420. The Complainant appeals the quantum of this award.

The Court is required to consider the award measured against what is “just and equitable having regard to all the circumstances”.

In doing so the Court finds that the Complainant worked for the Respondent for a period of six months. During that time his hours progressively increased from 20 – 25 hours per week until he was working an average of more than 48 hours per week. This latter situation continued for a number of months before his employment was terminated.

In those circumstances the Court decides that the Rights Commissioner’s assessment of the infringement of the Complainant’s rights under the Act was correct and affirms that decision.

Determination

The complaint is well founded. The decision of the Rights Commissioner is affirmed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
10th October 2014______________________
SCDeputy Chairman



NOTE

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