DWT194

However, the Complainant’s pay slips and the returns to the Office of the Revenue Commissioners showed a weekly wage of €240 per week, whereas the Complainant stated his earnings at €600 per week. The Adjudication Officer found that the Complainant was entitled to 21.88 days’ leave based on a wage of €240 per week plus a Sunday premium of €35 per Sunday.

The Complainant appealed the quantum on the basis that his actual earnings were €600 per week.

The Adjudication Officer awarded €50 compensation for the fact that the Complainant had not been given his leave entitlements of four weeks’ leave in the year, two of which must be uninterrupted. The Complainant appealed the quantum on grounds that this was not an effective remedy.

In addition, the Complainant stated that he had not been paid a Sunday premium, contrary to the same legislation. The Adjudication Officer had awarded compensation of €35 per Sunday for a total of 8 Sundays. The Complainant appealed the quantum on the grounds that the compensation was not dissuasive.

The Complainant also took a case under s.15 of the Act because he claimed that he worked 57.5 hours per week, which exceeded the allowable working week of 48 hours. The Adjudication Officer awarded compensation of €300. The Complainant appealed the quantum.

The Respondent did not attend the Court hearing.

Issue at hearing

The Complainant was unable to produce evidence to the Court that his earnings were as claimed. He argued, therefore, as an alternative, that based on the applicable national minimum hourly wage in the period concerned, he had, as a legal minimum, an entitlement to the hourly rate of €9.15 per hour x 57.5 hours as his weekly wage, which equals €526.15 and that either awards to him should be based on earnings of €600 per week or, alternatively, on this amount.

The Law

The applicable entitlement claimed to 4 weeks’ leave is set out in s. 19 (1) and 19, (1)(a) and reads as follows;

‘…an employee shall be entitled to paid annual leave…equal to...4 working weeks in a leave year in which he or she works at least 1365 hours…’

Of relevance also in respect of many of the issues raised in these instant cases, is s.25 of the Act which 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 thisAct and, where applicable, the Activities of Doctors in Training Regulationsare 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 this subsection may 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 thisAct or the Activities of Doctors in Training Regulationsin 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.

Deliberation

The Court cannot accept as fact assertions made by parties before it simply on the basis of the strength of assertion. Nor is it open to the Court to accept assertions merely because they are uncontested by the other party. InGlegola v. Minister for Social Protection (2018) IESC 65,O’Donnell J stated, ‘The fact that one party does not appear in proceedings should not mean that the opposing party’s contention is accepted by default and without question’.

This Court inMelbury Developments Ltd v. Arturs Valpeters. EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB inMahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In applying that principle to the instant case in respect of the applicable income, the Court notes that the only firm evidence produced to the Court are pay slips showing the Complainant’s earnings of €240 per week. There were bank lodgements given to the Court that show sporadic lodgements that might be said to suggest earnings in excess of these amounts but no firm proof was provided other than the pay slips and, in the view of the Court, it would be speculative to infer any facts from the lodgements, given their sporadic nature.

The Complainant’s representative argued that it was difficult for him to prove his earnings as the Respondent had not engaged with him regarding these proceedings. The extract from the judgement in the‘Mahony’case quoted above actually arose in the context of a recognition by the relevant Court that there are exceptions to the well-established legal notion that ‘he who asserts must prove’ where there are ‘matters which are peculiarly within the knowledge of the defendant’. However, the application of this ‘peculiar knowledge’ rule is quite restrictive. The restriction is best summarised by the statement of Hardiman J inRothwell v. Motor Insurers Bureau of Ireland (2003), 1 IR 268that the presumed fact must be ‘peculiarly within the defendant’s capacity of proof’. In other words, the party seeking to rely on an alleged fact must have no means of proving the alleged fact independently of the use of knowledge or information that is exclusively available to the other party.

In this case, the Complainant worked for the Respondent for 6 years. The case made is that in that period he never received a pay slip and that, apparently, he never checked his annual P60, so that he was never aware that his employer was claiming to be paying him only €240 per week, rather than the €600 that he claims to have received. It is claimed further that, in effect, he is prevented from proving this to be the case because of a lack of access to the ‘peculiar knowledge’ of his employer.

The Court does not find these to be credible claims. The Complainant states that he obtained his pay slips after his redundancy and discovered for the first time that he was being recorded by his employer as receiving €240 per week rather than the €600 that he claims to have actually received. All PAYE taxpayers in this State receive a P60 form from the Revenue Commissioners at the end of a tax year as a matter of course and these would have been sent to him after each year of his employment. These record earnings in the previous tax year. If the Complainant’s P60s showed earnings of €600 per week, the Court could not ignore this as evidence of earnings. Likewise, the fact that they show earnings of €240 per week, consistent with his pay slips, cannot be ignored by the Court. These forms are not within the ‘peculiar knowledge’ of the Respondent and can offer independent proof of earnings.

As the Complainant has made no case under the National Minimum Wage Act, the Court is not in a position to explore any arguments regarding his entitlements under that Act.

It lies upon the Complainant to prove the fact of his earnings. He has means of doing so independently of the Respondent’s ‘peculiar knowledge’. He is unable to prove what he claims to be his earnings.

Therefore, any award to the Complainant for leave not granted, if it arises, can only be based on a wage of €240 per week because he has means independent of any ‘peculiar knowledge’ of his employer to establish the facts of his earnings and he is in a position only to prove earnings of this amount.

A requirement that arises is to determine the veracity of the Complainant’s assertions that he received no annual leave. In light of the‘Glegola’case quoted above, the Court cannot accept this assertion by default simply because of the failure of the Respondent to appear nor could the Court reject such an assertion simply because it appears improbable. In approaching the task of testing the veracity of the assertion, the Court accepts, as a matter of fact, that most employees do not carry around a leave sheet as a matter of course and are, as a result, normally reliant on their employer’s records to ascertain what leave has been taken and what residual leave they are still due in any given leave period. This may not be the case for all workers and many would carry in their heads a reasonably clear idea of outstanding leave entitlements at any particular point in time. The fact is, however, that, even in such cases, the employer’s records will usually be held to be determinative in any dispute about such entitlements. Indeed, s.25 of the Act, see above, places a requirement on employers to keep records of this nature. That being so, in the ordinary course of events, an employee would expect to have access to employer’s records to establish any argument about their entitlements because such information, is held by, and is legally required to be held by, employers for record purposes. There is no legal requirement on employees to retain this information. As such, the determinative facts about leave entitlements rest within the ‘peculiar knowledge’ of the employer, the Respondent in this case.

In ‘Glegola’, the learned Judge went on to say that ‘There is, in my view, an obligation on any decision-maker to satisfy themselves that an applicant’s case is well founded..’. In doing so, this Court noted inRezmerita Ltd v. Katarazyna Uciechowska, DWT 1018, that ‘Where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non compliance’. It is logical to extend this presumption in circumstances where it is unclear if such records were kept but it is a fact that, whether they were kept or not, they were not produced to the Court.

In circumstances where some information is within the ‘peculiar knowledge’ of a party, in this case the Respondent, and where, as in this case, the party fails to offer rebuttal of assertions, the Court is obliged to draw inferences from such facts as are available and any such inferences must be, as the Court observed inKieran McCarthy v. Cork City Council, EDA 082,within a range of inferences that may reasonably be drawn from those facts.

In doing so, the Court is mindful that the non attendance at the Court by a party cannot be utilised as a tactic by that party to thwart the intention of the legislation. In the instant case, the Complainant is alleging that he received no annual leave contrary to his rights under s.19 of the Act. The Respondent has failed to offer any defence, in circumstances where they have the ‘peculiar knowledge’ that can prove or disprove the assertion and, indeed, are required by s.25 of the applicable Act to retain the records that could do so. This knowledge shifts the burden of proof onto the Respondent. By failing to offer any defence, the Respondent fails to discharge that burden and, in the particular circumstances of this case, the Court has no basis for drawing any inference other than that the Claimant is being truthful.

He is, therefore, entitled to be paid for 4 of his working weeks in lieu of annual leave not granted to him, based on a weekly wage of €240. See below regarding the calculation of 4 weeks’ leave.

The Law

The applicable entitlement to 2 weeks’ uninterrupted leave is set out in s.19 (3) of the Act which states;

‘The annual leave of an employee who works 8 or more months in a leave year shall……include an unbroken period of 2 weeks’.

Deliberation

All of the above considerations regarding the need for the Court to go beyond an unchallenged assertion, as set out above, arise in respect of this matter also and the Court reaches the same conclusion that the Respondent has ‘peculiar knowledge’, is required by the applicable Act to hold that knowledge on record and could offer that knowledge to rebut the claim made. The Respondent, therefore, has the burden of proof, which has not been discharged. The Respondent has not proved on the balance of probabilities that the claim is inaccurate, so the Court accepts the claim.

The issue that gave rise to the appeal on this matter is the quantum of compensation that is deemed to be appropriate. The economic loss to the Claimant is met within the determination above of his entitlement to be paid for 4 weeks’ leave. Any compensatory amount is, therefore, additional to this payment. There is no simple slide rule against which to measure what is adequate compensation. Every single case is unique. In this case, the Claimant is seeking compensation to reflect the two breaches of his rights under the Act i.e. to four weeks’ holidays, to include two uninterrupted weeks.

The Claimant’s representative cited the case ofVon Colson and Kamann v. Land Nordrhein-Westfalen (1984) ECR 1891in support of his contention that an award of €50 on top of the economic loss is not, as the ECJ set out in that case, a sufficient deterrent against future infractions. The Court accepts this argument and determines in accordance with the principles set out in s.27,(3) (c) of the Act, which provides that any compensation should be ‘just and equitable having regard to all the circumstances’, that this compensatory amount should be increased to €200.

The Law

The Law regarding additional payments for Sunday is set out in s.14 of the Act, as follows;

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2)Subsection (3)applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings underPart IVbefore a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to insubsection (3)that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) Insubsection (3)“comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee insubsection (3)is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to insubsection (3)before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

Deliberation

The Complainant provided no comparator to the Court, as per s.14(3) above and suggested that the Court could determine the compensatory amount based on its knowledge. Section 14(4) of the Act makes it clear that if a Complainant wishes to rely on collective agreements covering comparable employees, they must provide the basis on which the Court can make a judgement. Generally, it is preferable that Complainants or their representatives should conduct the research to enable the Court to make a reasoned judgement on these matters. Otherwise, the Court is reliant entirely under s.14(1),(b) on making a judgement on an amount that the section describes as ‘reasonable having regard to all the circumstances’. This is not the most satisfactory way for such a decision to be made. It is not for the Court to research the cases that might be made by parties before it. The function of the Court is to hear cases and to make decisions based on the cases made to it.

The Court up-holds the award of the Adjudication Officer of €35 x 8, totalling €280, as a reasonable compensatory amount in the circumstances of this case.

The Law

The Law regarding weekly working hours is set out in s.15 of the Act, as follows;

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 this section referred 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 in paragraph 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 this subsection,

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 that subsection.

(2)Subsection (1)shall have effect subject to theFifth Schedule(which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject tosubsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(aa) any period during which the employee was absent from work while on parental leave,force majeureleave or carer’ s leave within the meaning of the Carer’ s Leave Act, 2001,]

(b) any absences from work by the employee concerned authorised under theMaternity Protection Act, 1994, or theAdoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to insubsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply withsubsection (1)(if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court undersection 24may specify, for the purposes ofsubsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Deliberation

The Complainant alleges that he worked consistently in excess of the prescribed 48 hours’ limit. As the Respondent did not appear before the Court, the Court has to consider on the evidence available if this claim is substantiated and the Court cannot, in light of the ‘Glegola’judgement, simply infer from uncontested facts. Section 25(1), quoted above, requires that employers keep employee records of working time. No such requirement is placed on employees. Therefore, the information available to confirm or deny the allegation made is within the peculiar knowledge of the employer and the burden of proof rests with the employer. Failure to produce the peculiar knowledge of the employer means, in this case, that the employer has not met the burden.

Section 27.(3) (c) of the Act provides that compensation can be awarded by the Court that is of an amount that is ‘just and equitable having regard to all the circumstances, but not exceeding 2 years’ pay’

The Court is of the view that compensation of €300 is just and equitable in the circumstances of this case.

Calculation of leave entitlement

Having accepted that the Complainant was entitled to payment in lieu of 4 weeks’ leave and having accepted that the Complainant worked 57.5 hours per week, the Court agrees with the decision of the Adjudication Officer that the Complainant should be paid for 21.88 days’ pay, as per s.19(1) of the Act, as quoted above. The weekly wage on which this calculation should be based is €240 per week.

Determinations

1 The failure to provide the Complainant with his annual leave entitlement of 4 working weeks is a breach of s.19 of the Act. The Court up-holds the decision of the Adjudicator to award compensation of 21.88 days’ wages based on a weekly wage of €240. This equals an amount of €1050.24, (see 5 below also).

2. The Court upholds the decision of the Adjudicator that the Complainant’s rights under s.19(3) of the Act were breached and awards a compensatory amount of €200. The decision of the Adjudication Officer is varied accordingly.

3 The Court up-holds the award of €280 made by the Adjudicator as an additional payment for Sunday working, as provided under s. 14(1) of the Act.

4 The Court up-holds the award of the Adjudicator of €300 in respect of the breach of s.15(1) of the Act regarding weekly working hours.

5 In light of the Determination at 3. above, a further premium in respect of 4 Sundays is added to the award as compensation for annual leave not granted, as set out at 1 above. This amounts to an additional €140.

Signed on behalf of the Labour Court



Tom Geraghty
LS______________________
29 March 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.