TED199

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

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

7.—(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.

(4) (a) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.

(5) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(6) A rights commissioner shall furnish the Tribunal with a copy of any recommendation given by the commissioner under subsection (1).

(7) The Minister may by regulations—

(a) provide for any matters relating to proceedings under this section that the Minister considers appropriate, and

(b) amend paragraph (d) of subsection (2) so as to vary the maximum amount of the compensation provided for in that paragraph, and this section shall have effect in accordance with the provisions of any regulations under this paragraph for the time being in force.

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.

Under the terms of the ‘Glegola’ judgement quoted above, the Court cannot accept as fact the uncontested assertion of the Complainant that he did not receive his entitlements under s.3 of the Act as set out above. However, equally the Court could not accept that the failure of the Respondent to offer evidence could be utilised as a device to thwart the intentions of the legislation. Therefore, the Court is required to make a judgement on the balance of probabilities. The Court notes the ease with which the Respondent could have disproved this assertion. They chose not to do so. On that basis, the Court concludes that the balance of probabilities lies in support of the contention made by the Complainant.

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.