FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LAUREL ENTERPRISES LIMITED T/A CENTRA (REPRESENTED BY ROCHFORD GIBBONS SOLICITORS) - AND - MS CELINA JAKUBIAK (REPRESENTED BY MR BLAZEJ NOWAK) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-127937-wt-12/JC, r-127942-wt-12/JC & r-127944-wt-12/JC.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decisions to the Labour Court on 17th July, 2013. A Labour Court Hearing took place on 6th March, 2015. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Celina Jakubiak (the Claimant) against the decision of a Rights Commissioner in her complaints against Laurel Enterprises Limited t/a Centra, under the Organisation of Working Time Act 1997.
While a number of issues were raised in the original complaint to the Rights Commissioner all that is in issue in this appeal in a complaint that the Respondent contravened s.12 of the Act in not affording the Claimant adequate breaks on Sundays and a complaint that the Respondent contravened s.14 of the Act in not providing the Claimant with compensation for a requirement to work on Sundays.
The period during which these contraventions are alleged to have occurred is from 16thMay 2012 to 30thJuly 2012.
Issue in contention
There is a net issue in contention between the parties as to whether the Claimant ever worked on a Sunday in the cognisable period. At all material times the Claimant worked in the deli counter of the Respondent’s store.
Evidence
The Claimant gave sworn evidence in which she said that she worked on Sundays between 7am and 1pm. She said that she was the only employee who worked on that day and that she did not receive a break on those days. The Claimant accepted in cross-examination that on days that she worked she completed and signed a form, known as a HACCAP form, which contains certain records that are maintained for reasons of food safety. The Claimant was referred to these records and asked to identify her signature in the columns relating to the Sundays falling during the period covered by her claim. The Claimant was unable to indicate any Sunday in respect of which she signed these forms.
Ms Lisa Kenna gave evidence on behalf of the Respondent. She told the Court that the store did not open until 8am on Sundays and remained open until 3pm. She also told the Court that two employees were rostered to work on Sundays, the second employee coming on duty at 10.30 am. Ms Kenna told the Court that employees were paid a premium of 20c per hour when they worked on a Sunday. She had examined the pay slips issued to the Claimant over the period covered by her claim and she found that the Claimant had not received this premium in any of those pay weeks. According to the witness this indicated that the Claimant had not worked on Sundays in that period. This witness also examined the HACCAP forms for the period in question and found that employees other than the Claimant had signed the forms for each of the Sundays in the relevant period.
Ms Kenna told the Court that she prepared the rosters for the store and that she had not rostered the Claimant to work on any Sunday in this period.
Conclusion of the Court
The Respondent did not maintain working time records in the prescribed form as required by s.25 of the Act. Consequently, the Respondent carries the burden of proving compliance with the Act in respect of the matters in issue.
The Court has considered the evidence tendered in the case. It accepts as reliable the evidence given by Ms Kenna. In particular, the Court accepts that staff who worked on Sunday were paid a premium on their hourly rate for that day. The Court further accepts that the fact of the Claimant never having been paid this premium during the period in question indicates that she did not work on a Sunday. The Court also accepts that the opening hours of the store were as described by Ms Kenna rather than as recalled by the Claimant, which were the trading hours for Monday to Saturday. The Court also accepts that two employees were normally rostered to work on Sunday rather than one, as claimed by the Claimant.
Finally, the Court accepts that the Claimant was never rostered to work on Sundays over the relevant period.
By contrast, the Court found the evidence of the Claimant unreliable in many material respects. She was mistaken as to the trading hours on Sundays and she was also mistaken as to the number of employees rostered on Sundays. The Claimant told the Court than on any day on which she worked she signed the HACCAP forms. Her signature did not appear on any of these forms in respect of a Sunday.
The Court also finds it highly unlikely that the Claimant would have attended for work on Sundays for which she was not rostered.
Based on its evaluation of the evidence and taking account of the demeanour of the witnesses in giving their evidence the Court has concluded that the Claimant’s evidence is unreliable and of little probative value.
In these circumstances the Court has come to the conclusion that, as a matter of probability, the Claimant did not work on any Sunday during the period covered by her claim.
Outcome
In these circumstances the Court is satisfied that the within complainants are not well founded. The decision of the Rights Commissioner to similar effect is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
19th March, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.