RPD195

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

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.

The Law

7. (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided-

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

1. (1) The amount of the lump sum shall be equivalent to the aggregate of the following:

( a ) the product of two weeks of the employee ’ s normal weekly remuneration and the number of years of continuous employment from the date on which the employee attained the age of 16 years with the employer by whom the employee was employed on the date of dismissal or by whom the employee was employed when the employee gave notice of intention to claim under section 12, and

(b) a sum equivalent to the employee’ s normal weekly remuneration.

(2) In calculating the amount of the lump sum, the amount per annum to be taken into account shall be that obtaining under section 4(2) of the Redundancy Payments Act 1979 at the time the employee is declared redundant.

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

3. (a) For the purpose of ascertaining, for the purposes of paragraph 1, the number of years of continuous employment, the number of weeks in the period of continuous employment shall be ascertained in accordance with this Schedule and the result shall be divided by 52.

(b ) In ascertaining the number of weeks in the period of continuous employment, a week which under this Schedule is not allowable as reckonable service shall be disregarded.

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. In Glegola 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 in Melbury 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 in Mahony 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, the Court notes that the only firm evidence produced to the Court are pay slips showing the Claimant’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 Claimant’s representative argued that it was difficult for the Claimant 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 in Rothwell v. Motor Insurers Bureau of Ireland (2003), 1 IR 268 that 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 Claimant 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 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 Claimant 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 the Claimant after each year of his employment. These record earnings in the previous tax year. If the Claimant’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 Claimant 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.

The Act requires that to qualify for a Redundancy Payment, the employer must have ceased, or intend to cease, to carry on the business. In light of the ruling in the ‘Glegola’ case quoted above, the Court cannot accept that this has happened in the instant case merely because it is uncontested. However, this fact is easily established one way or the other by the Respondent. If the Respondent chooses not to put forward factual evidence that could disprove the fact, the Court has to determine the issue on the balance of probabilities. To place a requirement on the Complainant that the Respondent must provide evidence before the Court determines the matter would enable the Respondent to thwart the purpose of the legislation simply through non attendance. The Court accepts on the balance of probabilities that a redundancy has occurred in this case and, in reaching that decision, notes that the Respondent could easily have offered evidence to disprove this assertion but did not do so.

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.

Determination

The decision of the Adjudication Officer is up-held.

Signed on behalf of the Labour Court



Tom Geraghty
LS______________________
1 April 2019Deputy Chairman



NOTE

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