DWT1570

The claims
The Claimant referred a number of claims to a Rights Commissioner on different dates in 2013 and 2014. The claims were conjoined by the Rights Commissioner and heard together over three days in July 2013, September 2013 and November 2014. The Claimant also made a complaint under the National Minimum Wage Act 2000 and this claim was also heard in conjunction with the within claims.

The Rights Commissioner issued her decision on 22^ndApril 2015. The Rights Commissioner found that the Respondent had contravened some provisions of the Act relied upon by the Complainant and found that it had not contravened other provisions upon which she relied.

By notice of appeal dated 29^thApril 2015 the Claimant appealed against so much of the Rights Commissioner’s decision as related to one set of claims initiated on 9^thApril 2013. There is no appeal before the Court in respect of decision in relation to claims instituted on other dates.

The cognisable period in respect of these claims is the six month period commencing on 10^thOctober 2012 up to the date on which the claim was presented (9^thApril 2013).

The provisions of the Act to which this appeal relates are as follows: -

• 
  1.Section 11 – Daily rest periods

  2.Section 12 – Rest and intervals at work

  3.Section 13 –Weekly rest periods

  4.Section 14 –Sunday working, supplemental provisions

  5.Section 15 – Weekly working hours

  6.Section 17 – Provision of information in relation to working time

  7.Section 19 – Entitlement to annual leave

  8.Section 26(1) – Prohibition of penalisation

The import of the evidence proffered is as follows: -

The Claimant’s evidence
The Claimant gave evidence with the assistance of an interpreter. It was the Claimant’s evidence that she often commenced work at 6am. She is a piece-worker and she remained at work until her allocated amount of harvesting was completed.

The Claimant told the Court that she maintained records of her working hours. Documents were put in evidence in which the Claimant recorded the hours that she claimed to have worked. According to the Claimant there were occasions on which she did not obtain 11 hours rest between her finishing time on one day and her starting time on the next. She relied on her own records in support of that contention. She did not sign in or out of work.

However, it is noted that the documents upon which the Claimant relied relate to the period June to December 2013. That period is outside the cognisable period for the purposes of her claims.

On the question of Sunday premium, the Claimant told the Court that she received 30% extra for working on Sundays.

The Claimant also told the Court that she was never provided with a work roster. Nor was she provided with a copy of a Registered Employment Agreement that governed her employment. She said that she had not advance notice of her finishing times as this was determined by the completion of the tasks to which she was assigned.

It was the Claimant’s evidence that she obtained two or three breaks per day of 15 minutes duration. They were generally at 10.30am and at 1.30pm. She accepted that she could have taken longer or further breaks had she wished.

The Claimant gave evidence that she did not obtain any holidays in 2012 -2013. She also denied having been paid in respect of holidays. According to the Claimant she asked for holidays but was told that she would only be accommodated if she“took back her claims”

In cross examination the Claimant denied that the ‘houses’ in which she worked were locked before 7am.

Evidence of Mr Kiernan,
Mr Kiernan is managing director of the Respondent and gave evidence on its behalf.

This witness told the Court that the Claimant, in common with all other employees, was provided with a roster of her starting and finishing times. This roster was prepared by the supervisor. A copy of the document which was regarded as a roster was put in evidence.

The Court was told that a degree of flexibility was required in the times that staff started and finished in order to meet the exigencies of the business. However, the witness told the Court that the Claimant could not have started at 6am as the ‘houses’ in which she worked only opened at 7am.

All harvesters were told to take breaks of 15 minutes after four hours worked and to take a break of 30 minutes after six hours worked. The witness referred the Court to a document which, it was claimed, indicated the breaks taken by employees, including the Claimant. This document was prepared by the supervisor.

On the question of the rate paid to the Claimant, Mr Kiernan told the Court that harvesters were paid a piece rate which averaged 17c. per pound weight harvested. The Claimant’s basic rate was €9.13 per hour, which is the rate prescribed in a Registered Employment Agreement which had formally applied to the employment. The Court was told that this was, in effect a fall-back rate in that if an employee earned less than the weekly equivalent of that rate while on piece work their earnings in the pay week in question was adjusted accordingly.

Copies of pay slips furnished to the Claimant were put in evidence. However Mr Kiernan was unable to explain the content of these documents.

In dealing with the claim relating to holidays, the witness accepted that the Claimant had not obtained annual leave although she was paid the value of her holiday entitlement.

In relation to the Claimant’s claim of penalisation, Mr Kiernan denied telling the Claimant that she would not receive holidays because of the within claims.

Conclusions of the Court
It is clear that the Respondent failed to maintain records in accordance with s.25 of the Act. While certain documents were put in evidence by the Respondent which purported to record the Claimant’s working time, they were not in the statutory form. Moreover, these documents were created by persons who were not present to give evidence in relation to their creation. Mr Kiernan, who relied upon these documents in the course of his evidence, had no direct knowledge of the matters to which their content related. Consequently the evidence tendered by Mr Kiernan in relation to these documents was hearsay and of no probative value.

Burden of proof
Section 25(4) 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 normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the respondent in cases where records in the statutory form were not maintained. Thus a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the respondent to mount a defence. This suggests that, at a minimum, the respondent must know, with reasonable clarity, what it is expected to rebut.

    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.

  
  
  

While these matters were put in issue in the written submission filed on behalf of the Claimant, her solicitor correctly objected to the unproved records proffered by the Respondent being accepted in evidence. In these circumstances it would be entirely incongruent to accept mere assertions contained in the Claimant’s written submission, unsupported by oral evidence, as sufficient to put in issue the matters to which the assertions refer.

Section 12
The Claimant did give evidence to the effect that she received two breaks per day of 15 minutes duration. However, the Claimant accepted that she was free to take longer breaks or additional breaks. This evidence indicates that the Claimant did not receive the breaks required by s.12 of the Act. The responsibility to ensure that the Claimant actually received the breaks required by the Act rests with the Respondent.

The Complainant’s evidence in this regard was not rebutted by the Respondent on admissible evidence. At best the evidence of Mr Kiernan on this point was hearsay and unspecific. However, the Claimant’s own evidence was to the effect that she could have taken the breaks to which she was entitled and that she chose not to do so. This is a matter to be taken into account in measuring the redress that is fair and equitable in all the circumstances.

Section 14
The Claimant evidence was to the effect that she did receive a premium for Sunday working of 30% . There is nothing to indicate that this premium is unreasonable in the circumstances of this case.

Section 17
The Claimant gave evidence to the effect that she was not informed of her starting and finishing time as required by s.17 of the Act. The Respondent claimed that the Claimant was provided with a weekly roster. Documents were put in evidence which purported to be rosters. Again, the only witness proffered by the Respondent, Mr Kiernan, had no direct knowledge of the creation or delivery of these documents to the Claimant, in consequence of which they are inadmissible as evidence. Furthermore, at best, these documents merely recorded the days of the week on which the Claimant was expected to attend work and did not indicate the times at which she was expected to start and finish work.

In these circumstances the Court accepts that the Respondent contravened s.17 of the Act in relation to the Claimant.

Section 19
It is common case that the Claimant did not receive annual leave in the period covered by this claim. It is also common case that she was paid the economic value of the annual leave to which she was entitled. While issue was taken with the calculation of these payments there was no evidence to suggest that the amounts paid were improperly calculated in accordance with Regulation 3(3) of The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475 of 1997).

It is, however, well settled that a worker’s entitlement to annual leave cannot be replace with a payment in lieu, except where the employment ends. Consequently, the payment to the Claimant of the economic value of her holiday entitlement could not meet the Respondent’s obligations under the Act. It follows that the Court must hold that the Respondent contravened s.19 of the Act in relation to the Claimant.

Section 26
The Claimant claims to have been penalised by the Respondent for having instituted the within claims. This claim was initiated on 20^thMay 2013.This aspect of her claim was not addressed by the Rights Commissioner although both parties agree that the claim was before the Rights Commissioner and is now properly before the Court on appeal.

In her evidence the Claimant told the Court that she sought two weeks annual leave in or about May 2013. It was her evidence that she was told by Mr Kirwan that she would not be granted the leave requested unless she“took back her claims”. In his evidence to the Court Mr Kirwan denied having said that, or words to that effect.

It is noted that the Claimant’s solicitor wrote to the Respondent by letter dated 16^thMay 2013 in which the verbatim content of what the Claimant alleges was set out. The Respondent did not reply to that letter. It is extraordinary that such a serious accusation, if untrue, would have gone unanswered. The Court is not convinced by Mr Kiernan’s denial and has concluded, as a matter of probability, that the words claimed by the Claimant, or words to similar effect, were uttered to the Claimant. Consequently her claim of penalisation is made out.

Outcome
For the reasons set out herein the Court has concluded as follows: -

• • Section 11- Daily rest periods
    This complaint is not well founded
    
    
    

    Section 12 – Rest and intervals at work
    The complaint is well founded. However the Claimant made a significant contribution to this contravention in not to taking the breaks to which she was entitled. The Court measures the compensation that is fair and equitable in respect of this contravention at €750
    
    

    Section 13 – Weekly rest periods
    This complaint is not well founded
    
    

    Section 14 – Sunday premium
    This complaint is not well founded
    
    

    Section 15 – Weekly working hours
    This complaint is not well founded
    
    

    Section 17 – Information on working hours
    This complaint is well founded. The Court measures the compensation that is fair and equitable in respect of this contravention at €750
    
    

    Section 19 – Annual leave
    This complaint is well founded. The Court measures the compensation that is fair and equitable in respect of this contravention at €1,500
    
    

    Section 26 – Penalisation
    This complaint is well founded. The Court measures the compensation that is fair and equitable in respect of this contravention at €5,000.

  
  
  

The decision of the Rights Commissioner is varied accordingly.

Signed on behalf of the Labour Court



Kevin Duffy
_____July 2015______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.