DWT1575

In this Determination Ms Kirvatyte is referred to as the Claimant and Mr Adomaitis is referred to as the Respondent.

Background
The Claimant worked for the Respondent between 17^thSeptember 2012 and 16^thJanuary 2014 in her capacity as a shop assistant. She was paid €332 per week (net). The within claim was presented to the Rights Commissioner on 12^thJune 2014. The Rights Commissioner found that the Respondent had contravened the Act in relation to the Claimant. He awarded her compensation in the amount of €1,180, €680.20 being the economic value of her claim and €500 in respect of the effects of the infringements.

The claim
Having regard to the time limit specified by s.27 of the Act, the period cognisable for the purpose of this claim is from 13^thDecember 2013 until the date on which the Claimant’s employment ended, namely, 16^thJanuary 2014.

The substance of the Claimant’s claims are as follows. She occasionally worked on Sundays and was not paid a premium. She worked on one Sunday in the period cognisable by this claim. The Claimant contends that she worked up to 42 hours per week, Monday to Friday. She worked over the weekend occasionally, usually every second or third week. On those occasions her working week extended to 56 hours. There was only one week in which that occurred in the cognisable period.

The Claimant further contends that she was owed three weeks’ pay in respect of annual leave at the time her employment ended. She is prepared to accept that she had taken one of these weeks’ as holiday during a period when she was required to take sick leave. She was not paid in respect of this outstanding annual leave on the termination of her employment.

The Respondent denied all of the Claimant’s claims. He further contends that the compensation awarded by the Rights Commissioner was excessive.

Conclusions of the Court
Section 25 of the Act provides that where an employer fails to maintain records showing compliance with the Act in the statutory form, the burden of proving compliance rests with the employer. The Respondent did not maintain records in accordance with the said s.25. Accordingly the burden of satisfying the Court that the Act was complied with in relation to the Claimant rests with the Respondent.

On being called upon to offer evidence of compliance with the Act the solicitor for the Respondent told the Court that she had not been furnished with any such evidence.

In these circumstances the Claimant is entitled to succeed in her claims.

Redress
The Court directs the Respondent to pay the Complainant compensation as follows:

• 
  1. In respect of the contravention of s.14 of the Act €16.20

  2. In respect of the contravention of s. 15 of the Act €100

  3. In respect of the contravention of sections 19 and 23 of the Act €644 (being the economic values of the unpaid holidays)

The Respondent is directed to pay the Claimant compensation in the overall amount of €1,760.20. €660.20 of this amount is in respect of remuneration due and owing to the Claimant. The remainder is in respect of the contraventions that occurred and is not in the nature of remuneration.

Outcome
The Respondent’s appeal is disallowed. The Rights Commissioner’s decision is varied in terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
13th August 2015______________________
SCChairman



NOTE

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