MND192

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

The Adjudication Officer upheld the claim regarding accrued leave but made no award under the ‘de minimus’rule having also ruled that a payment was due to the Complainant under the Organisation of Working Time Act for the failure of the Respondent to grant the Complainant his legal entitlements to annual leave.

This was appealed by the Complainant.

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 per week.

Determination

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 in lieu of notice, 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.

The Law

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

(3) The provisions of theFirst Scheduleto this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

Deliberation

In accordance with the‘Glegola’judgement quoted above, the Court must be satisfied that the Complainant has ceased to be employed, that he did not receive minimum notice of, in his case, 4 weeks in addition to determining the amount on which any award, if any, may be based and it may not do so simply on the basis of acceptance of uncontested facts. However, if the Respondent wished to contest the very fact of termination of employment, they have the means to do so simply by attending in the Court and providing evidence that the Complainant remained as their employee. It would be an intolerable situation if Respondents were permitted to thwart the purpose of this legislation simply through non attendance at the proceedings. The Court has to infer, therefore, that as the Respondent has the means of easily rebutting any claim on this matter and has chosen not to do so, that the termination alleged that gives rise to the application of the Act is, on the balance of probabilities, a fact. That being so, the Court accepts that the Respondent is required to pay the Complainant for 4 weeks prior to the termination of his employment and that, having failed to do so, the Complainant is entitled to now be paid for this period at a rate of €240 per week.

The Court notes the rationale of the Adjudication Officer in respect of the application of the ‘de minimus’ rule regarding leave accumulated in the notice period and concurs with that decision.

Determination

The decision of the Adjudication Officer is upheld.

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.