MWD155

In this Determination Ms Kreslina is referred to as the Claimant and Sheelin Mushrooms is referred to as the Respondent.

The Claimant is employed by the Respondent as a mushroom harvester. Her employment commenced on or about 10^thMarch 2002. The Respondent is a limited liability company involved in the growing and supply of mushrooms.

The claim
The claim was referred to a Rights Commissioner on 15^thMay 2013. The claim was made in conjunction with a number of other claims under various employment enactments. All of the claims were conjoined by the Rights Commissioner and heard together over three days in July 2013, September 2013 and November 2014. The Rights Commissioner found that the claim was not well founded.

The Claimant also made a complaint under the Organisation of Working Time Act 1997, the outcome of which she appealed to the Court. The appeal under that Act and the within appeal were conjoined by the Court and heard together.

The Claimant’s claim under the Act is grounded on her assertion that her rate of pay, when divided by the hours that she actually worked, was less that than the rate proscribed under the Act. This is denied by the Respondent. Consequently, the case turns of the number of hours actually worked by the Claimant.

The Appeal
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. She relied on her own records in her evidence. She did not sign in or out of work.

It is noted that the documents upon which the Claimant relied relate to the period June to December 2013. The within claim was made on 15^thMay 2013. Consequently these records do not relate to any period cognisable for the purpose of the instant case. The Claimant did not give any evidence conceding her hours of work other than in respect of periods referred to in the records upon which she relied.

Evidence was tendered by Mr Eugene Kiernan on behalf of the Respondent. He told the Court that the Claimant was paid a piece rate which averaged 17c. per pound weight of mushrooms 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.

The Respondent did not have records showing compliance with the Act. Pay slips were tendered in evidence. However Mr Kiernan could not explain these payslips nor were they comprehensible to the Court. The Claimant sought a statement under s.23 of the Act but this was not provided.

Burden of proof
Section 22 of the Act provides: -

• 22.(1)—An employer shall keep, at the premises or place where his or her employee works or, if the employee works at 2 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 as are necessary to show whether this Act is being complied with in relation to the employee and, subject tosection 23(5), those records shall be retained by the employer for at least 3 years from the date of their making.

  (2) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.

  (3) Without prejudice to subsection (2), 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 provision was complied with lies 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.

Conclusions of the Court
The Claimant’s evidence to the Court in relation to her working hours was, at best, vague and uncertain and wholly lacking in specificity. She gave no evidence from which it could be adduced that she was underpaid relative to the national minimum wage or as the extent of any shortfall. When this was pointed out to the Claimant’s solicitor he urged the Court to accept the written submissions filed on behalf of the Claimant as putting compliance with the Act in issue. He also urged the Court to place reliance on submissions made to the Rights Commissioner which were recorded in her decision.

While these matters were put in issue in the written submission filed on behalf of the Claimant, her solicitor correctly objected to 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, or statements purportedly made to the Rights Commissioner, unsupported by oral evidence, as sufficient to put in issue the matters to which the assertions refer.

A failure to comply with either s.22 or 23 of the Act constitutes a criminal offence. It also places the burden of proving compliance with the Act on the Respondent. However, as previously held, that does not relieve the Claimant of the evidential burden of putting the case for which she contends in issue even in aprima facieway. According to the decision of the Rights Commissioner the Claimant claimed arrears of wages in the amount of €19,943.04. She was taken through her evidence in chief in the course of this appeal and she did not aver to this or any other amount as being due to her under the Act.

Section 26(2)(a)(i) of the Act limits a Rights Commissioner, and this Court on appeal, to an award of: -

• “Arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relate”

Outcome
The Court holds that the within complaint is not well founded. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
28th July 2015______________________
AHChairman



NOTE

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